Appeal from the United States District Court for the Central District of Illinois. No. 05 CR 10062-Joe Billy McDade, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
Javier Hernandez pled guilty to conspiring to knowingly distribute cocaine. In the plea agreement, the parties agreed to have the district court determine, beyond a reasonable doubt, the quantity of drugs for which Hernandez would be held accountable in determining his sentence. Because it is unclear how the district court arrived at its drug quantity calculation, we cannot determine whether the government met its burden so we find that the district court committed clear error. We remand this case to the district court to determine the amount of drugs attributable to Hernandez.
Javier Hernandez was charged with conspiring to knowingly distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The indictment alleged that more than five kilograms of cocaine and fifty grams of crack were involved in the conspiracy. Pursuant to his plea agreement, Hernandez pled guilty to distributing only one kilogram of cocaine. His plea agreement also stipulated that any further drug quantities had to be proven beyond a reasonable doubt at sentencing. The district court agreed to apply the burden of proof stipulated to by the parties in determining the drug quantity attributable to Hernandez. At the sentencing hearing, Darrell Daily, Melvin Harmon, Troy Powers, and Eric Keith testified that Hernandez provided them with at least 196 kilograms of cocaine over the course of the conspiracy. Daily testified that in September of 2001, Hernandez supplied him with one kilogram of cocaine. Daily then sold this cocaine to Harmon, who sold it to Dumond and Courtney Morris. Hernandez later provided Daily with another kilogram of cocaine after Harmon indicated that the first kilogram was "bad," or unusable. In the remaining months of 2001, Daily continued to sell small amounts of cocaine to the Morrises indirectly through Harmon. Harmon testified that he sold two to three kilograms per month to the Morrises for the remaining months of 2001.
According to the testimony at the hearing, the drug quantities that Daily obtained from Hernandez increased substantially in 2002. In 2002, Hernandez supplied Daily with between one and twelve kilograms of cocaine on multiple occasions, and seventeen kilograms of cocaine on one occasion. Daily supplied Harmon, who sold the Morrises at least six kilograms of cocaine every month in 2002. There were also at least two occasions in 2002 where Daily supplied the Morrises directly with six to seven kilograms of cocaine. By this time, Daily had a supplier other than Hernandez, but it is not clear if Daily began purchasing cocaine from this alternate source in 2002 or 2003.
In 2003, Daily sold approximately twenty-five kilograms of cocaine to Harmon. In late 2003, Hernandez provided Harmon with fifty kilograms of cocaine directly. In 2004, Hernandez continued to supply Harmon, who sold approximately seventy kilograms of cocaine to the Morrises that year. Harmon was arrested in March 2005 for attempting to sell one kilogram of cocaine, which had been provided by Hernandez, to a third party.
Powers testified that in the fall of 2003, he purchased four and a half ounces of cocaine from Hernandez. He also purchased a similar amount of cocaine from Hernandez on two to three other occasions that year. In 2004 and 2005, Powers purchased one to three kilograms of cocaine once or twice a month from Hernandez until Hernandez's arrest in June 2005. Powers estimated that he received fifteen to twenty kilograms of cocaine from Hernandez from early 2004 until June 2005.
Harmon introduced Keith into the drug scheme, and both Harmon and Daily supplied Keith. Keith testified that from 2001 until 2004, he obtained at least one kilogram of cocaine a week from Harmon until Keith's arrest in 2004. In 2002, Daily sold Keith six to seven grams of cocaine, which were provided by Harmon. Keith testified that, by the time of his arrest, he had received seventy kilograms of cocaine from Harmon and five from Daily. All of the cocaine involved in these transactions originated from Hernandez. In 2004, Keith obtained five kilograms of cocaine directly from Hernandez.
Hernandez did not present any witnesses at the hearing, but during cross-examination of the government's witnesses, his attorney elicited testimony indicating that they had made prior inconsistent statements to the agents investigating the case. Hernandez argued that the witnesses were biased because they were receiving benefits from the government in exchange for their testimony, and there were no drug ledgers or other records to corroborate their testimony. In response, the government contended that the witnesses established that Hernandez was responsible for distributing at least 196 kilograms of powder cocaine-eight kilograms in 2001; seventy-two kilograms in 2002; twenty-five kilograms in 2003; seventy-five kilograms in 2004; and sixteen kilograms in 2005. The district court ultimately concluded that Hernandez was responsible for distributing 159 kilograms of cocaine, which it considered a "conservative" estimate based on its consideration of the credibility of the witnesses. The court did not explain how it arrived at 159 kilograms, but did indicate that its decision was made beyond a reasonable doubt.
The finding of 159 kilograms resulted in Hernandez having a base offense level of 38. After applying a four-level enhancement for his leadership role in the offense and awarding a two-level reduction for acceptance of responsibility, the court determined that Hernandez had an offense level of 40. With a Criminal History Category of IV, the resulting advisory guidelines range was 360 months to life. The court sentenced Hernandez to 360 months in prison. Hernandez appeals, arguing that there was insufficient evidence to support the district court's sentencing determination regarding drug quantity.
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