 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 15, 2018            Decided December 11, 2018

                         No. 17-3052

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

     JAMES DURRETTE, ALSO KNOWN AS JAY DURRETTE,
             ALSO KNOWN AS GRAY BRIGGS,
                      APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:16-cr-00052-3)


     Thomas G. Corcoran Jr., appointed by the court, argued
the cause for the appellant. Edward C. Sussman, was with him
on brief. A.J. Kramer, Federal Public Defender, entered an
appearance.

     Kristina L. Ament, Assistant United States Attorney,
argued the cause for the appellee. Jessie K. Liu, United States
Attorney, and Elizabeth Trosman, Kenneth F. Whitted and
James A. Ewing, Assistant United States Attorneys, were on
brief.

   Before: HENDERSON and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
                                2
    Opinion for the Court filed by Circuit Judge HENDERSON.

     KAREN LECRAFT HENDERSON, Circuit Judge: Following a
seven-day trial, a jury convicted James Durrette of conspiracy
to distribute, and conspiracy to possess with the intent to
distribute, 100 grams or more of a mixture and substance
containing a detectable amount of heroin. Durrette filed a
post-trial motion for judgment of acquittal, arguing in part that
the evidence produced at trial was insufficient to establish that
he was responsible for 100 grams or more of heroin. The
district court denied the motion. Durrette appeals his
conviction and we affirm.

     Three times between April and June 2014, Durrette sold
heroin to a government informant named Jonathan Weeks.
On April 18, the FBI gave Weeks $6,000 to purchase 60 grams
of heroin from Durrette. Weeks arranged for Durrette to dilute
the drugs, paid Durrette a discounted price of $4,500 and
pocketed the remaining $1,500. On April 29, Weeks and
Durrette performed a similar maneuver: instead of paying
Durrette $10,000 for 100 grams of heroin, Weeks paid him
$8,000 for a diluted mixture and kept $2,000. The mixtures
Weeks purchased in the two sales weighed 59.1 and 95.8
grams, respectively. At trial, however, the government
presented no evidence regarding Durrette’s unknown source
for these two heroin sales.

     The next sale involved a larger cast of characters. In late
May 2014, Ricardo Lawson, a local drug dealer and an
associate of Durrette, stole a kilogram of heroin from his
suppliers. Lawson gave Durrette a portion of the kilogram to
store at Durrette’s car wash. At trial, Lawson first testified, “I
think I took off like a hundred grams or something from [the
kilogram]” to give Durrette. The prosecutor subsequently
confirmed, “[A]t some point you took off a hundred kilograms
                                  3
[sic] of that 1,000 kilograms [sic], correct?” Lawson
responded, “Yes.” Later, when asked again how much of the
kilogram he gave Durrette, Lawson testified, “A hundred
grams.”

     On June 2, Weeks, still acting as a government informant,
contacted Lawson in order to purchase 100 grams of heroin for
$10,000. Weeks arranged for Lawson to dilute the heroin, this
time by half, so that Weeks could keep $5,000. Lawson
retrieved from Durrette 50 of the 100 grams of heroin Lawson
had left at Durrette’s car wash. Lawson and Durrette together
then sold the heroin to Weeks. During the exchange, Lawson
provided Weeks with two separate bags, one containing the 50
grams of heroin and one containing approximately 50 grams of
“cut.” 1 Weeks combined the two substances to create a
mixture weighing 89.1 grams.

     A grand jury indicted Durrette, Lawson’s suppliers and
others, on one count of conspiracy to distribute heroin, cocaine
and marijuana and one count of conspiracy to commit robbery.
As relevant here, the indictment charged Durrette with
conspiracy to distribute, and conspiracy to possess with the
intent to distribute, 100 grams or more of a mixture and
substance containing a detectable amount of heroin in violation
of 21 U.S.C. § 840(a)(1) and (b)(1)(B)(i). At the close of the
prosecution’s case, Durrette moved for judgment of acquittal
on the heroin charge on the ground that the government had not
presented sufficient evidence to establish that Durrette was
responsible for at least 100 grams of heroin. The district court
denied the motion and submitted the case to the jury. The jury


     1
        “Cut” refers to a substance used to dilute a drug and increase
its volume. The record does not identify the particular “cut”
Lawson had at the exchange or where he obtained it.
                                4
convicted Durrette on the heroin charge but acquitted him on
the cocaine, marijuana and robbery charges.

     Following the verdict, Durrette renewed his motion for
judgment of acquittal. He argued in part that there was
insufficient evidence to establish that he was part of the
Lawson conspiracy2 or that the amount of heroin attributable
to him equaled or exceeded 100 grams. The district court
again denied the motion. Although the court found that the
two April transactions were not part of the Lawson conspiracy
due to the lack of evidence connecting those two transactions
to the other Lawson co-conspirators, it concluded that the June
sale involving Lawson was part of the conspiracy and
supported Durrette’s conviction. The court then determined
that the June sale involved 100 grams or more of heroin. First,
the court reasoned that the jury could have taken the 89.1 grams
of heroin/cut mixture sold to Weeks together with the 50 grams
left at Durrette’s car wash to reach a total drug weight well
exceeding 100 grams. Second, the court concluded that the
jury could have simply attributed the entire stolen kilogram of
heroin to Durrette. The district court then imposed a 120-
month sentence to be followed by ninety-six months of
supervised release. Durrette appeals his conviction, insisting
that the evidence at trial was insufficient to prove that he was
responsible for 100 grams or more of heroin.3


    2
       As alleged in the indictment, the Lawson conspiracy
comprised Lawson’s suppliers, Durrette, two individuals who
worked with Lawson and one individual who worked with Durrette.
    3
        Durrette originally appealed the district court’s
determination that the June sale was part of the Lawson conspiracy
alleged in the indictment. Durrette withdrew the challenge in his
reply brief.
                                    5
     The 100-gram threshold of a heroin conviction under 21
U.S.C. § 841(b)(1)(B)(i) triggers a five-year mandatory
minimum for all defendants and a ten-year mandatory
minimum if a defendant has a prior drug felony, as Durrette
did. “Facts that increase the mandatory minimum sentence
are [] elements and must be submitted to the jury and found
beyond a reasonable doubt.” United States v. Stoddard, 892
F.3d 1203, 1219 (D.C. Cir. 2018) (alteration in original)
(quoting Alleyne v. United States, 570 U.S. 99, 108 (2013)
(plurality opinion)). Whether Durrette is responsible for 100
grams or more of heroin, therefore, constitutes an element of
his offense of conviction. “When reviewing a guilty verdict
for sufficiency of the evidence, we view the evidence in the
light most favorable to the Government and must affirm the
verdict if ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
United States v. Stadd, 636 F.3d 630, 636 (D.C. Cir. 2011)
(quoting United States v. Wynn, 61 F.3d 921, 923 (D.C. Cir.
1995)).

     On appeal, Durrette challenges both rationales relied upon
by the district court to sustain the jury’s finding that he was
responsible for 100 grams or more of heroin. We need not
resolve Durrette’s challenges to the district court’s alternative
rationales because a third rationale supports the jury verdict.4

     4
          We agree with Durrette that the district court’s first rationale
appears to rest on a faulty premise. The district court reasoned that
the jury could have taken the 89.1 gram mixture from the June sale
together with the 50 grams left at Durrette’s car wash to reach a
heroin quantity in excess of 100 grams. But the testimony presented
at trial conclusively established that Weeks, not Lawson, mixed the
heroin with the cutting agent to produce the final mixture. As a
government informant, Weeks was not a co-conspirator and his
actions are not attributable to the conspiracy. See United States v.
Iennaco, 893 F.2d 394, 397 n.3 (D.C. Cir. 1990). Consequently,
                                  6
Namely, Lawson repeatedly testified that he took 100 grams of
heroin from the stolen kilogram and gave it to Durrette. When
asked what he did with the stolen kilogram, Lawson stated, “I
think I took off like a hundred grams or something from it” and
gave it to Durrette. Lawson confirmed that he “took off a
hundred kilograms [sic] of that 1,000 kilograms [sic].” And,
once again, Lawson repeated that he took off “[a] hundred
grams.”

     Durrette argues that Lawson’s first statement was merely
an estimate because he used qualifying language, including “I
think,” “like” and “or something.” As the government noted
at oral argument, however, these hedging terms could have
been simply verbal tics Lawson used in the same way others
use the fillers “um” or “you know” when speaking.
Regardless whether Lawson’s use of these terms qualified his
initial statement, he subsequently confirmed twice, without
hedging, that he gave Durrette 100 grams of the stolen
kilogram. Taking these three statements together and “in the
light most favorable to the Government,” id., we believe that
the jury could have reasonably concluded that when Lawson
said he gave Durrette 100 grams, Lawson in fact gave Durrette
100 grams. Because a “rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt,”
we cannot disturb the verdict. Id. (quoting Wynn, 61 F.3d at
923).


only the 50 grams of heroin taken from Durrette’s car wash, not the
89.1 grams of heroin/cut mixture Weeks created at the June sale, is
fully attributable to Durrette and the conspiracy. We need not reach
the district court’s alternative rationale (the jury could have
attributed the entire stolen kilogram of heroin to Durrette) as Lawson
testified that he gave Durrette the 100 grams necessary to sustain the
latter’s conviction.
                          7
For the foregoing reasons, the judgment is affirmed.

                                              So ordered.
