43 F.4th 1090
10th Cir.2022Background
- From 2017–2019 McDonald distributed methamphetamine in Tahlequah, OK; police recovered multiple small amounts and, in a January 2019 search, cash, four phones, digital scales, a drug ledger, ~4.74 g meth, and other items.
- McDonald pleaded guilty to one-count conspiracy to violate federal narcotics laws; the PSR attributed ~3.4 kg of meth to him and calculated a Guidelines range of 292–365 months.
- The PSR recommended enhancements for use/ threat of violence, obstruction of justice, and an aggravated role; McDonald objected to the drug-quantity attribution and three enhancements (arguing sources lacked credibility, statements were uncorroborated or ambiguous, and he was a small-scale dealer).
- The district court overruled McDonald’s objections, adopted the PSR, applied the enhancements, and sentenced him to 292 months’ imprisonment.
- On appeal the central disputes were (1) whether McDonald’s objections properly controverted PSR facts under Rule 32 and (2) whether the district court’s findings supporting drug-quantity and three two-level enhancements were proper. The Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (McDonald) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the district court may rely on PSR facts after McDonald’s objections under Fed. R. Crim. P. 32 | Objections to credibility/reliability of sources required the court to rule and for the government to prove disputed facts at sentencing | McDonald never specifically alleged facts in the PSR were false; many objections attacked credibility or inferences, so portions remained undisputed and could be relied upon | Affirmed — mere attacks on credibility are not specific denials of facts; Rule 32 obligation not triggered absent specific assertions that PSR facts are false (government still bears burden if facts are properly disputed) |
| Drug-quantity attribution (base offense level) | PSR over-attributed amounts based on unreliable/cooperator statements; McDonald’s conservative total would reduce base level from 32 to 30 | PSR evidence (cooperator statements, recorded calls, seizures) provided sufficient corroboration and indicia of reliability to attribute ~3.4 kg to McDonald | Affirmed — district court made particularized findings and law permits reliance on corroborated co-conspirator statements to attribute drug quantity |
| Two-level enhancement for use/ threat/ direction of violence (U.S.S.G. §2D1.1(b)(2)) | Phone remark to “handle” CI was ambiguous and asserted reports of shooting/assault lacked corroboration/credibility | Court relied on phone instruction to a co-conspirator plus multiple reports of shooting/assault; directing/foreseeable violence standard met | Affirmed — phone instruction and corroborating reports supported finding McDonald used or directed violence; not clearly erroneous |
| Two-level obstruction enhancement (U.S.S.G. §3C1.1) | Statement to Day never reached CI and was ambiguous, so cannot show intent or substantial step | Enhancement applies to attempts; telling a third party to "handle" a cooperating witness can be an attempted obstruction even if unsuccessful or not communicated to the witness | Affirmed — the instruction to a co-conspirator was a substantial step manifesting intent to obstruct justice |
| Two-level aggravating-role enhancement (U.S.S.G. §3B1.1) | McDonald was only a small-scale street dealer; only Day assisted with deliveries, no organizer/leader role | Recorded calls and directions show McDonald provided contacts, instructed Meikle and Day, coordinated sales and collections — organizing conduct need not involve formal control over many people | Affirmed — evidence that he directed others and coordinated activity justified organizer/leader enhancement |
Key Cases Cited
- United States v. Harrison, 743 F.3d 760 (10th Cir. 2014) (district court may rely on undisputed PSR portions; government must prove disputed PSR facts by a preponderance)
- United States v. Chee, 514 F.3d 1106 (10th Cir. 2008) (defendant must specifically assert PSR facts are untrue to trigger Rule 32 fact-finding duty)
- United States v. Terry, 916 F.2d 157 (4th Cir. 1990) (attacking reliability alone is insufficient; must claim inaccuracy of PSR facts)
- United States v. Figueroa-Labrada, 720 F.3d 1258 (10th Cir. 2013) (district court must make particularized findings to attribute drug quantity to a defendant)
- United States v. Sells, 477 F.3d 1226 (10th Cir. 2007) (co-conspirator statements may be used to establish drug quantity if sufficiently reliable)
- United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995) (drug-quantity estimates permissible with a factual basis and indicia of reliability)
- United States v. Wardell, 591 F.3d 1279 (10th Cir. 2009) (organizer/leader role can be found where a defendant devises/coordinatesscheme even without hierarchical control)
- United States v. Hankins, 127 F.3d 932 (10th Cir. 1997) (§3C1.1 attempt enhancement does not require success; an attempt suffices)