UNITED STATES OF AMERICA, Plaintiff - Appellee v. KENNETH JAMES BARFIELD, Defendant - Appellant
No. 18-50399
United States Court of Appeals for the Fifth Circuit
October 25, 2019
Appeal from the United States District Court for the Western District of Texas
Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.
Kenneth James Barfield challenges his 360-month sentence for possession with intent to distribute methamphetamine. He contends that the district court erred by holding him accountable not only for the methamphetamine seized from him but also for the full quantity he confessed to having trafficked in the preceding months. Finding no clear error, we affirm.
I.
On April 26, 2017, 24-year-old Barfield was released from prison after serving a four-year sentence for assault of an elderly person. His freedom would not last long. Suspecting that Barfield was involved in narcotics trafficking, the Midland Police Department Narcotics Unit began surveilling him shortly after his release. On one occasion, detectives provided a cooperating source (CS) with $475 in cash, with which he successfully purchased 12.9 grams of meth from Barfield. On November 17, 2017, the Narcotics Unit instructed a patrol officer to pull Barfield over for driving without a valid license. Inside Barfield‘s vehicle, the officer discovered a digital scale, needles, small plastic bags, and 23.4 grams of meth. The search also revealed $917 in cash, including the $475 Barfield had received from the CS.
Barfield was taken into custody and charged with possession with intent to distribute methamphetamine.1 The
Once at the Midland Police Department, [a detective] read the defendant his Miranda warnings, and the defendant advised he understood his rights. The government‘s evidence would reflect that during the interview, the defendant admitted ownership to the 25.1 grams of methamphetamine,3 located inside the vehicle. The government believes the evidence would also reflect the defendant stated that he‘d gotten out of prison April of 2017 and had been selling methamphetamine since then. The government further believes that the statements made by Barfield, as reflected by the testimony of the officers, would be that he admitted to obtaining a pound of methamphetamine per week from April 2017 until his arrest.
Barfield‘s counsel objected to two of the prosecutor‘s allegations: (1) that Barfield had sold meth since his release in April 2017, and (2) that he had obtained a pound of meth per week from April until his arrest in November. He did not deny that Barfield had made those statements to police, nor did he explain the basis for his objection.
The prosecutor responded that he was “satisfied that the elements [of the crime would be] met” even if those two statements were removed from the factual basis. The Court agreed and excluded the statements, but noted that “[t]hat doesn‘t meant the government‘s giving up on them.” Rather, the Court advised the parties that they “may argue about those” statements again at sentencing.
After Barfield pleaded guilty, the Probation Office prepared his PSR. Under “Offense Conduct,” the PSR related:
When Barfield was questioned by officers at the MPD, Barfield stated he had been distributing methamphetamine since he was released from prison, which was in April 2017. Barfield admitted to obtaining a pound of methamphetamine a week. . . . Barfield distributed at least 1 pound (453.6 grams) of actual methamphetamine a week as of April 2017 (27 weeks).
Based on that admission, the PSR held Barfield accountable for 12.2 kilograms of actual methamphetamine.4 This drug quantity yielded a base offense level of 38 and, in combination with Barfield‘s lengthy criminal record, a Guidelines sentencing range of 360 months to life.5
Barfield submitted a written objection to the drug quantity alleged in the PSR, claiming that he “was extremely high on methamphetamine” when he made his post-arrest statement about receiving a pound of meth per week. In addition, Barfield claimed that he overstated his involvement in the meth trade “out of fear” and the hope that he might “talk himself out of being arrested” by indicating that he could give prosecutors information on a
The Government did not offer a transcript or recording of Barfield‘s post-arrest interview, nor did it call the officers who interviewed him to testify at the sentencing hearing. Although the district judge found the defense‘s argument “novel” and “interesting,” he ultimately concluded that Barfield‘s post-arrest statement had “sufficient indicia of reliability” to support the PSR‘s total drug-quantity figure.6 The court overruled Barfield‘s objection, denied his request for a downward departure and variance, and adopted the PSR in full. When asked if he had anything to say to the court, Barfield reurged his objection to the drug quantity. He did not deny telling investigators that he had received a pound of meth per week; instead, he appeared to challenge the plausibility of his own claim, saying: “Man, I‘ve never even seen that amount of dope. I don‘t have bank accounts. I didn‘t have large amounts of money to even sum that up.” The district court imposed a sentence of 360 months—at the low end of Barfield‘s Guidelines range—to be followed by eight years of supervised release.
On appeal, Barfield argues that the district court erred by “including as relevant conduct an amount of methamphetamine that was not supported by an adequate evidentiary basis.” He contends that a drug quantity based on “mathematical extrapolation” is only permissible if accompanied by corroborating evidence, such as testimony or recordings. In his view, the PSR‘s 12.2-kilogram drug-weight figure was based on nothing more than “one bald, conclusory statement in the presentence report” unsupported by testimonial or documentary evidence. Moreover, Barfield argues, the Government failed to establish that the drug transactions conducted between April and November 2017 could be attributed to him as relevant conduct.
II.
A.
“The district court‘s interpretation or application of the Sentencing Guidelines is reviewed de novo, while its factual findings are reviewed for clear error.”7 More specifically, the “district court‘s determination of what constitutes relevant conduct for purposes of sentencing” is a factual finding that “is reviewed for clear error.”8 “A factual finding is not clearly erroneous if it is plausible in light of the record as a whole.”9 The Court will find clear error “only if a review of all the evidence leaves us ‘with the definite and
B.
In determining a defendant‘s base offense level, a “district court may consider other offenses in addition to the acts underlying the offense of conviction, as long as those offenses constitute ‘relevant conduct’ as defined in the Guidelines.”11 Relevant conduct includes “all acts and omissions [that the defendant] committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused” and which “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”12
A defendant convicted of a drug offense is sentenced based on the amount of drugs involved in the offense.13 In a drug-trafficking case, relevant conduct may include all acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.”14 The Guidelines instruct that “[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense,” the district court should “approximate the quantity of the controlled substance” based on, for example, “similar transactions in controlled substances by the defendant.”15 Finally, where there are “multiple transactions,” the court should add the drug quantities together and hold the defendant accountable for the total.16
Like all factual findings used in sentencing, relevant conduct must be proven by “a preponderance of the relevant and sufficiently reliable evidence.”17 In determining the total drug quantity attributable to a defendant as relevant conduct, “[t]he court may extrapolate . . . from any information that has sufficient indicia of reliability to support its probable accuracy.”18 Generally, a PSR “bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.”19 The standard for reliability is not meant to be onerous; indeed, even uncorroborated hearsay can support a relevant conduct finding.20 However, “[b]ald, conclusionary statements do not acquire the patina of reliability by mere inclusion in the PSR.”21
III.
A.
We turn first to Barfield‘s claim that the weekly meth transactions to which he confessed should not have been considered relevant conduct because the Government failed to show they were part of the “same course of conduct” or “common scheme or plan” as the drugs actually seized from him.24 This contention is untenable under Fifth Circuit precedent. “Particularly in drug cases, this circuit has broadly defined what constitutes ‘the same course of conduct’ or ‘common scheme or plan.‘”25 To qualify as relevant conduct, “repeated instances of criminal behavior,” such as separate drug transactions, need only have “sufficient similarity and temporal proximity to reasonably suggest that [they] constitute a pattern of criminal conduct.”26
Although the record does not include a verbatim transcript of Barfield‘s post-arrest statement, its contents as reported in the PSR satisfy both the similarity and the temporal-proximity requirements. According to the PSR, Barfield told investigators that he had obtained and distributed a pound of methamphetamine per week for 27 weeks—that is, “since he was released from prison . . . in April 2017.” By his own admission, then, Barfield carried out identical weekly drug transactions at regular, tightly spaced intervals right up until his arrest. This account leaves no doubt that Barfield engaged in “a pattern of criminal conduct.”27
B.
Barfield‘s drug-quantity challenge is at the heart of his appeal and, unlike his relevant-conduct argument, it presents a question of law not squarely addressed by binding Fifth Circuit precedent. We must decide whether it is clear error for a district court to rely on a PSR‘s account of a defendant‘s post-arrest, Mirandized admission of relevant conduct where the defendant has objected to the reliability of his own statement but has failed to introduce evidence to rebut it. In keeping with our own precedent and the
1.
The closest in-circuit precedential case is our 1993 opinion in United States v. Barnes.28 In Barnes, the Court found no clear error in the district judge‘s reliance on the defendant‘s “uncorroborated statements as proof of relevant conduct.”29 The Court explained that after Barnes was arrested, he
stated that he had expected a 400 pound shipment of marijuana on November 8, and that he had negotiated for 100 kilograms of cocaine. These amounts were used as part of his relevant conduct in calculating the base offense level. He does not assert that he did not make the statements. He contends only that they are an insufficient basis for the finding. . . . Barnes offers no evidence which contradicts his statements, nor does he argue that they are inherently unreliable. In short, there was no clear error.30
In so holding, we expressly stated that a defendant‘s uncorroborated admission of prior drug trafficking “may be the sole basis for the findings on relevant conduct.”31
The only potential distinction between this case and Barnes is that, unlike Barnes, Barfield does “argue that [his statements] are inherently unreliable” because they were “self-serving” and made under the influence of drugs. He does not, however, produce any evidence to support his alleged intoxication. Moreover, it hardly seems “self-serving” to overstate one‘s involvement in criminal activity. As the Government observes, “the idea of inflating drug trafficking conduct to discourage arrest does not comport with logic or common sense. On the contrary, traditionally, a defendant downplays [his own] criminal involvement.”32
A more recent unpublished case further supports the district court‘s decision here. In United States v. Humphrey, the defendant was apprehended with only one kilogram of cocaine but “admitted to selling one fourth of a kilogram of cocaine at least once, but sometimes three times, a week during the two years before his arrest.”33 Thus, the court “estimated his past cocaine sales . . . and aggregated these amounts in its drug-quantity finding.”34 We affirmed, holding that “[t]he court properly considered Humphrey‘s admission . . . and plausibly determined he was not merely a one-time drug distributor.”35
Likewise, in United States v. Retiz, another unpublished opinion issued in 2018, we held that the PSR‘s report of the defendant‘s post-arrest statement was sufficient
[t]he district court adopted the PSR and its recitation of Retiz’ drug-related relevant conduct. This included, inter alia, his admission that he personally distributed one ounce of methamphetamine per week for a year and assisted his cousin in distributing an additional ounce per week for a year, in addition to possessing and distributing cocaine and marijuana on other occasions. On the basis of those undisputed facts, the court . . . approximated the drug-quantity for sentencing purposes by aggregating the amounts reflected in the PSR. The court‘s drug-quantity calculation was consistent with the record, the Guidelines, and our precedent.37
Finally, cases from outside our circuit weigh in the Government‘s favor as well. In an unpublished opinion in United States v. Pinkerton, the Sixth Circuit held that the district court properly “relied on [the defendant‘s] own admissions,” as reported in his PSR, “to estimate the quantity of methamphetamine for which he was sentenced.”38 In an earlier, published case, the Sixth Circuit affirmed the district court‘s aggregation of drug amounts based “solely o[n] statements [the defendant] made to codefendants and FBI agents while intoxicated.”39 The Seventh Circuit has likewise held that a defendant‘s uncorroborated admissions are proper bases for a relevant conduct finding. In United States v. Johnson, for example, the court held that the district judge properly relied on the PSR‘s account of the defendant‘s “post-arrest statement that he dealt one ounce of crack cocaine every day for the preceding seven to eight months.”40 The Fourth,41 Eighth,42 and Eleventh43 Circuits have reached similar conclusions as to the reliability of defendants’ post-arrest statements in determining relevant conduct.
2.
Ultimately, the question for the Court is whether Barfield‘s admission is “plausible in light of the record as a whole.”47 Barfield claims it is not. He urges the Court to disregard his post-arrest statement as self-serving, unreliable, and undermined by his alleged intoxication. Without any evidence to support Barfield‘s claims, however, we can only weigh his assertions against the account presented by the PSR—and as we have recognized, “it is proper for the district court to rely on a presentence report‘s construction of evidence to resolve a factual dispute, rather than relying on the defendant‘s version of the facts.”48 Given the illogic of Barfield‘s explanation for overstating his drug-trafficking activity, the lack of evidence that he was intoxicated or dishonest during his interview, and the weight of both precedential
IV.
For the foregoing reasons, Appellant‘s conviction and sentence are affirmed.