In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2899

United States of America,

Plaintiff-Appellee,

v.

John Noble,

Defendant-Appellant.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 6--Barbara B. Crabb, Judge.


Argued December 6, 2000--Decided April 5, 2001



  Before Bauer, Posner, and Williams, Circuit Judges.

  Bauer, Circuit Judge. John Noble was convicted
of possession of controlled substances with
intent to distribute under 21 U.S.C. sec.sec.
841(a) and 846. The district court made findings
as to the amount of drugs that Noble distributed,
determined Noble’s base sentence according to the
United States Sentencing Guidelines ("Sentencing
Guidelines"), and added eight levels of
enhancement based on three aggravating factors.
Noble appeals his sentence on two grounds. First,
he contends that the district court committed
factual sentencing errors. Second, he maintains
that he was sentenced above the statutory maximum
in violation of Apprendi. We vacate Noble’s
sentence and remand for proceedings consistent
with this opinion.

I.   Background

  Noble dealt drugs over a tri-state area. Noble
sold the drugs himself, and enlisted a small
group to aid him which included Jeff Spaeth,
Steve Jobe, James Burke, Sam Groff, Mark Ackley,
and Noble’s girlfriend Dawn Henning. Group
members transported, sold, or stored drugs in
their homes for Noble.

  Jeff Spaeth bought a significant quantity of
cocaine from Noble over a two year period. To the
police, he estimated the amount at 50 ounces, but
at trial he testified that it totaled 100 ounces.
Spaeth allowed Noble to store cocaine in a safe
in his trailer. Noble carried a key to Spaeth’s
trailer so he could access the drugs while Spaeth
was not home. Spaeth had a long history of
cocaine and marijuana use.

  Steve Jobe delivered cocaine for Noble from
1996 until the fall of 1997. Initially, Jobe
merely acted as a driver, shuttling Noble mainly
to Janesville, Wisconsin so Noble could sell
cocaine to Spaeth. Eventually, Jobe took over
Noble’s delivery role, dropping off drugs and
picking up proceeds from Spaeth. Noble paid Jobe
between $25 and $50 for each trip. Also, on at
least 10 nights, Jobe accompanied Noble on his
routine drug deals at a series of strip clubs.
Jobe assisted by carrying the drugs and passing
Noble individual packets to sell. When Jobe was
with Noble, Noble sold between 1/2 and 1 ounce of
cocaine per night. Noble ultimately told Jobe
that he sold drugs at these club roughly five
nights per week for a year.

  As Jobe’s efforts slackened, Noble began to pay
James Burke to transport drugs to Iowa, Illinois,
and Wisconsin. Burke transported cocaine to
Spaeth between 10 and 20 times, and marijuana to
Mark Ackley 7 or 8 times. Noble negotiated the
price and quantity sold. In exchange for Burke’s
services, Noble paid Burke’s rent and provided
him with cash and automobiles.

  Noble temporarily lived with Sam Groff in
Charles City, Iowa. Beginning in the fall of
1996, Groff began distributing marijuana for
Noble, ferrying drugs from Illinois to Iowa.
Groff sold roughly 14 pounds of marijuana. Groff
stopped transporting Noble’s marijuana when Noble
moved back to Illinois. Noble replaced Groff with
Mark Ackley. Ackley estimated that he sold
roughly 40 pounds of marijuana over an estimated
one year. The court found that the time frame of
Ackley’s dealing lasted 7 months.

  Dawn Henning met Noble in 1992, and they
developed a romantic relationship. Henning began
working 3 to 4 nights per week at a strip club in
January of 1996. Each night she worked, Noble
gave her cocaine to sell. Henning used cocaine
herself and became addicted. Noble moved in with
Henning in 1997, and they shared a bedroom.

  In 1997, the police raided the apartment Noble
and Henning shared. The police found cocaine and
marijuana, along with a calculator labeled with
the name of Noble’s old apartment complex, in a
car parked in Noble’s garage. In Henning and
Noble’s bedroom they found $2,400 in drug
proceeds and a gun in Henning’s closet. The
police arrested Noble and released him on bail.
Desiring to avoid punishment, Noble convinced
Burke to confess to owning the drugs found in
Noble’s garage. Burke was convicted and spent
several months in jail before he recanted his
confession.

  The police revived their investigation of Noble.
Noble was charged with and convicted of violating
21 U.S.C. sec.sec. 841(a)(1) and 846, offenses
which have a statutory maximum of 20 years. The
district court determined that Noble possessed or
distributed 5 kilograms of cocaine and 31.06
kilograms of marijuana. In so determining, it
relied on testimony from the following witnesses
to attribute the following quantity of drugs to
Noble:


Count I

Source of     Drug and Amount   Marijuana
testimony                        Equivalent

Ackley    50 lbs marijuana 22.68 kg
Groff   17.5 lbs marijuana 7.948 kg
Spaeth 100 oz cocaine 567 kg
Jobe   65 oz cocaine 368.55 kg
Burke’s car 183.02 g     cocaine
       4328 g marijuana 37.04 kg
no source 5 oz cocaine 28.34 kg
mentioned

Total   1,031.36 kg

Count II

Burke’s car     183.02 g cocaine 37.04 kg
                439.8 g marijuana

Total   37.04 kg

  Converting the cocaine to its marijuana
equivalent for sentencing purposes, the judge
determined that Noble was responsible for a total
of 1,390.064 kilograms of marijuana. This total
made Noble eligible for an enhanced sentence
under 21 U.S.C. sec. 841(b)(1)(A)(vii), which
carries a sentence range of 10 years to life
imprisonment for those who possess 1000 to 3000
kilograms of marijuana. The judge imposed three
sentence enhancements: a four-level organizer or
leader enhancement, a two-level dangerous weapon
enhancement, and a two-level obstruction of
justice enhancement. Applying the Sentencing
Guidelines, the judge combined Noble’s criminal
history level of III and his offense level of 40
to reach a sentencing range of 360 months to
life. The judge imposed 360 months in prison.
  Noble argues that the district court committed
two factual errors in: (1) determining the
quantity of drugs Noble possessed and
distributed; and (2) assessing sentence
enhancements not supported by sufficient
evidence. Further, Noble argues that his sentence
violates Apprendi v. New Jersey, 120 S. Ct. 2348
(2000). We dispose of cases on factual rather
than constitutional grounds when possible. See
United States v. Westmoreland, Nos. 99-1491 & 00-
1348, slip op. at 14 (7th Cir. Feb. 15, 2001). We
therefore first proceed to Noble’s factual
challenges.

II.    Discussion

  A.    Factual Concerns

  Our review of the factual determinations in
this case is challenging because key parts of the
factual record are shallow. To fashion Noble’s
sentence, the district court necessarily engaged
in a spate of credibility determinations
involving evaluating the defendant’s word against
a witness’s. We emphasize that uncorroborated
evidence can be a sufficient basis for a
sentence, see United States v. Johnson, 227 F.3d
807, 813 (7th Cir. 2000), and we are reluctant to
disturb credibility determinations absent a
compelling reason.

1.    Amount of Drugs

  Noble argues that the court committed three
errors in determining the amount of drugs by: (1)
committing a mathematical error when it
aggregated the quantity of drugs in counts one
and two; (2) double counting the drugs found in
Noble’s garage by including them in both counts;
and (3) basing its determination of drug quantity
on unreliable evidence. Noble correctly charges
clear error in his first two contentions. First,
when adding the quantity of drugs found in counts
one and two, the district court mistakenly
arrived at a total of 1,390.064 kilograms; the
correct total is 1068.40 kilograms. Second, Noble
and the government agree that the judge
impermissibly double counted the 37.04 kilograms
of drugs found in Burke’s car. The drug quantity
must therefore be reduced by that amount to a
total of 1031.36 kilograms.

  Noble next argues that the court erred by
basing its findings on the unreliable testimony
of Spaeth, Jobe, Ackley, and Groff. We accord
great deference to the district court’s
sentencing determinations, including drug
quantity, and we will not overturn its findings
of fact unless they are clearly erroneous. See
United States v. Berthiaume, 233 F.3d 1000, 1002
(7th Cir. 2000) (citations omitted). However,
there are limits to our deference. The court’s
sentence determinations must be based on reliable
evidence, not speculation or unfounded
allegations. See United States v. Pigee, 197 F.3d
879, 889 (7th Cir. 1999) (citation omitted);
United States v. Howard, 80 F.3d 1194, 1204 (7th
Cir. 1996) ("Estimates of the drug quantities
attributable to the defendant are permissible, of
course, so long as they are based on evidence
possessing sufficient indicia of reliability and
not ’nebulous eyeballing.’"). The government
bears the burden to prove the facts supporting
the sentence by a preponderance of the evidence.
See Johnson, 227 F.3d at 813.

  We address Noble’s most serious challenge first.
Noble urges us to reverse the district court’s
decision to attribute 100 ounces of cocaine to
him based on Spaeth’s testimony. Spaeth’s
inconsistent estimation of drug quantity, 50
ounces in a police interview and 100 ounces under
oath, required the district court to "undertake
a ’sufficiently searching inquiry into the
government’s evidence to insure its probable accuracy.’"
United States v. Galbraith, 200 F.3d 1006, 1012
(7th Cir. 2000) (citation omitted). In this case,
the district court’s inquiry was rather cursory.
Combined with Spaeth’s poor memory, no doubt
caused by his extensive history of drug use, the
district court’s treatment of the discrepancy
makes Noble’s charge of error a close call. Our
question about the adequacy of the district
court’s inquiry is heightened by its failure to
designate the source of 5 ounces of cocaine which
it attributed to Noble, and which we discuss
below.

  The district court credited Spaeth’s testimony
under oath, justifying its decision by noting
that it was consistent with the rest of Spaeth’s
testimony. Spaeth explained the discrepancy
between his estimates as follows: "getting more
to being kept on record, when I admitted 50, it
was a discussion with the officers. When it came
time to have it written down legally, I realized
it was more." Further, Spaeth provided the court
with particulars that bolstered this 100 ounce
estimate. Spaeth testified that he purchased
cocaine from Noble for roughly two years.
Initially he bought small amounts approximating
1/16 of an ounce, but his purchases increased,
culminating in a 7 ounce buy. Spaeth estimated
that on average, he purchased between 1 and 2
ounces of cocaine from Noble per week. Noble
maligns Spaeth’s credibility because Spaeth has
a self-admitted poor memory and had a lengthy
history of drug abuse. However, the district
court is entitled to credit a broad range of
testimony. See United States v. McEntire, 153
F.3d 424, 436 (7th Cir. 1998) (stating that the
court may credit testimony that is "totally
uncorroborated and comes from an admitted liar,
convicted felon, large scale drug-dealing, paid
government informant.").

  We have qualms about the district court’s
adoption of Spaeth’s 100 ounce estimate. However,
the burden at sentencing is merely a
preponderance of the evidence, and our review of
the district court’s fact-finding and credibility
determinations is highly deferential. A reading
of the whole sentencing record reveals that this
experienced judge was mindful of Spaeth’s memory
lapses. Ultimately, we conclude that the
testimony and the judge’s inquiry were sufficient
to ensure the reliability of the 100 ounce
estimate.

  Next, Noble challenges as speculative and
unreliable Jobe’s testimony establishing that
Noble possessed 65 ounces of cocaine. Jobe’s
testimony is partly based on firsthand knowledge.
He accompanied Noble to strip clubs for the
purpose of selling cocaine, and on each occasion,
he watched Noble sell between 1/2 and 1 ounce of
cocaine. Jobe also testified that Noble admitted
to selling cocaine at the strip clubs five nights
a week for over a year. The district court is
entitled to estimate drug quantity using
testimony about the frequency of dealing and the
amount dealt over a specified period of time. See
United States v. Durham, 211 F.3d 437, 444 (7th
Cir. 2000) (affirming district court’s estimate
of quantity by considering testimony of the
frequency of dealing and a conservative estimate
of the amount dealt per transaction over a two
year period). In calculating Noble’s quantity,
the district court conservatively assumed that
Noble sold 1/2 ounce of cocaine five nights a
week for a year, resulting in a total of 130
ounces. The district court cautiously divided the
130 ounces figure in half, arriving at a total of
65 ounces of cocaine.

  Noble charges that Jobe was not a credible
witness because he is a "convicted felon and
admitted drug user/ dealer." Noble’s challenge
falls short. The district court is entitled to
credit testimony from people with Jobe’s
"credentials." See McEntire, 153 F.3d at 436. In
the absence of inconsistency in a witness’s
story, we defer to the district court’s
determination of witness credibility, which "can
virtually never be clear error." Anderson v. City
of Bessemer City, North Carolina, 470 U.S. 564,
575 (1985). The detail in Jobe’s testimony is
consistent and sufficient to demonstrate its
reliability. Further, Jobe is not "speculating"
about the frequency of Noble’s dealing. Noble
himself provided Jobe with this information.
Noble protests that such evidence is hearsay,
however, we believe this statement by Noble
against his interest was admissible. Even if it
is hearsay, "[h]earsay evidence is permissible at
sentencing where the rules of evidence do not
apply." Berthiaume, 233 F.3d at 1003 (citing
United States v. Morrison, 207 F.3d 962, 967 (7th
Cir. 2000)). The district court did not err when
it attributed 65 ounces of cocaine to Noble.

  Noble challenges the inclusion of what he calls
"the mysterious five ounces." Although the
district court did not explicitly state the
source of the cocaine, the record clearly shows
the source. Jobe testified that he assisted Noble
in selling between 5 and 10 ounces of cocaine at
strip clubs. The district court was entirely
justified in relying on testimony based on Jobe’s
firsthand experience, and in choosing to
attribute a conservative 5 ounces of cocaine to
Noble.

  Noble urges that the judge has committed clear
error by engaging in calculations to determine
the amount of drugs Ackley and Groff distributed
for Noble when the witnesses themselves offered
lower estimates of the absolute amounts. The
district court rejected Ackley’s estimate that he
received 40 pounds of marijuana from Noble, and
attributed 50 pounds instead. The court
calculated that Noble distributed 17.5 pounds of
marijuana through Groff, rather than the 14
pounds Groff estimated. The government argues,
and we agree, that if error occurred here, it was
harmless. Even if the district court accepted the
witness’s lower estimates, they, by themselves,
would not decrease the drug quantity below 1000
kilograms.

2.   Sentence Enhancements

  Noble further argues that the sentence
enhancements were erroneous because they are
based on unreliable evidence. We review the
district court’s sentence enhancement
determinations for clear error. See id. at 1002.
Again, the government bears the burden of proof
by a preponderance of the evidence. See Johnson,
227 F.3d at 813. The court imposed an enhancement
for Noble’s role as an organizer or leader, the
connection between a deadly weapon and the drug
offense, and Noble’s efforts to obstruct justice.
We address them in turn.

a.   Organizer or Leader Enhancement

  Noble challenges his four-level organizer or
leader enhancement. Such an enhancement is
merited upon a finding that "the defendant was an
organizer or leader of criminal activity that
involved five or more participants or was
otherwise extensive" U.S.S.G. sec. 3B1.1(a).
Comment 4 directs the sentencing judge to
consider seven factors: (1) exercise of decision
making authority; (2) nature of participation in
the commission of the offense; (3) recruitment of
accomplices; (4) claimed right to a larger share
of the fruits of the crime; (5) degree of
participation in planning or organizing the
offense; (6) nature and scope of the illegal
activity; and (7) degree of control and authority
exercised over others. See U.S.S.G. sec. 3B1.1(a)
cmt. 4.

  Justifying the enhancement, the district court
emphasized that Noble had more than a buyer-
seller relationship with Spaeth, Jobe, Burke,
Groff, and Henning. Noble provided drugs for the
whole distribution scheme. He controlled the drug
price and delivery and fronted drugs to Spaeth.
He used his compatriots to insulate himself from
some of the perils of dealing by directing them
to engage in the necessary, but risky behavior of
transporting and storing drugs. Noble frequently
used Jobe, Henning, Groff, and Burke as mules to
deliver his drugs to buyers. Noble stored drugs
at Spaeth’s trailer and in Jobe’s car, and
retained a key to Spaeth’s trailer so he could
access the drugs when Spaeth was not home. Noble
exercised particular control over Spaeth and
Henning because they depended on Noble to supply
their own drug habits. Noble exercised such
psychological control over Burke that Burke
agreed to go to jail for Noble. We agree with the
district court’s assessment.

  Noble asserts that he was a mere distributor
and notes that being a distributor by itself does
not justify application of the enhancement, see
United States v. Mustread, 42 F.3d 1097, 1104
(7th Cir. 1994). But this protestation rings
hollow. We agree with the district court’s
finding that Noble exercised the requisite
control over Spaeth, Jobe, Burke, Groff, and
Henning to support the "organizer or leader"
enhancement.

b.   Dangerous Weapon Enhancement

  Noble protests the two-level firearm enhancement
applied under U.S.S.G. sec. 2D1.1(b)(1). The
firearm enhancement should be applied "if a
dangerous weapon (including a firearm) was
possessed" "unless it is clearly improbable that
the weapon was connected with the offense."
U.S.S.G. sec. 2D1.1(b)(1) & cmt 3. Police found
the gun in Henning’s closet in the bedroom Noble
shared with her. A loaded clip lay next to the
gun, and drug proceeds were present in the room.
Noble argues that the evidence does not tie the
gun to him and that it is clearly improbable that
the gun was used in connection with drug
distribution. The government must prove
possession by a preponderance of the evidence;
the burden to show a clearly improbable
connection then falls on the defendant. See
Berthiaume, 233 F.3d at 1003-04.

  The district court found that the gun belonged
to Noble. The court credited Henning’s testimony
that Noble placed the gun in her closet. We are
reluctant to disturb this credibility judgment.
In addition, the district court found that the
connection between the gun and his offense was
probable. "’An enhancement under sec. 2D1.1(b)(1)
is appropriate for simple, and entirely passive,
possession’ of a firearm. . . . The proximity of
a weapon to drug proceeds provides a sufficient
nexus to conclude that ’it was not clearly
improbable that the gun was connected with the
offense.’" Johnson, 227 F.3d at 814 (citations
omitted). Given that the gun and the drug
proceeds were located in the same room, the
district court was correct to impose the
enhancement.

c.   Obstruction of Justice Enhancement

  Last, Noble challenges the enhancement for
obstructing justice. This enhancement is merited
when the defendant "wilfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice during the course of .
. . prosecution . . . of the instant offense of
conviction" including "committing, suborning, or
attempting to suborn perjury." U.S.S.G. sec.
3C1.1 & cmt. 4(b). The judge found that Noble
committed perjury during his testimony by lying
about his reasons for running from his home
during the police raid, by coaching and
orchestrating Burke’s false confession and paying
him for it, by falsely denying that he owned the
gun in the closet, by untruthfully professing
that he did not deal drugs, and by lying about
lacking knowledge about the safe in Spaeth’s
apartment and the drugs in Burke’s car.

  Noble argues that the judge erred because her
finding of perjury is supported only by the
testimony of government witnesses. True, but this
is no reason to overturn the judge’s
determination. See McEntire, 153 F.3d at 436.
Regardless, the district court’s finding rested
on other evidence as well. The testimony of Jobe,
Henning, and Burke, along with Burke’s
unconvincing cover-up attempt, support the
judge’s finding that Noble committed perjury when
he denied involvement in the cover-up. Noble’s
calculator and Burke’s testimony attribute to
Noble knowledge of the drugs found in Burke’s
car. Testimony of at least five witnesses link
Noble to drug dealing. The district court did not
impose the obstruction of justice penalty in
error. The district court’s factual errors are
harmless because taking them into account, Noble
still possessed or distributed 1000 kilograms or
more of marijuana and marijuana equivalent.
Therefore, we turn to Noble’s constitutional
argument.

  B.   Constitutional Analysis

  Noble argues that his sentence must be vacated
under the Apprendi doctrine, which requires that
"[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury and proven beyond a
reasonable doubt." Apprendi v. New Jersey, 120 S.
Ct. 2348, 2363-64 (2000). Noble’s drug quantity
was neither charged in the indictment nor sent to
the jury. Noble raises the Apprendi issue for the
first time on appeal, so we review for plain
error. See United States v. Nance, 236 F.3d 820,
825 (7th Cir. 2000).

  To justify a finding of plain error, "[t]here
must be an ’error’ that is ’plain’ and that
’[a]ffects substantial rights.’" United States v.
Olano, 507 U.S. 725, 732 (1993). If the above
three criteria are satisfied, we may, in our
discretion vacate Noble’s sentence, provided that
we find that the district court committed an
error that "’seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’"
Id.; see also Johnson v. United States, 520 U.S.
461, 467 (1997). The first three criteria are
clearly satisfied. We have held that Apprendi
applies to sec. 841(b)(1)(A) & (B), which, based
on drug quantity, provide enhanced drug penalties
above the basic statutory maximum allowed by sec.
841(b)(1)(C). See Westmoreland, Nos. 99-1491 &
00-1348, slip op. at 19 (listing cases and
detailing the history and rationale for this
decision); Nance, 236 F.3d at 824-25 (listing
cases and explaining this holding). Noble’s case
constitutes clear error because his drug quantity
was not charged in the indictment or determined
by the jury. We recognize that Apprendi was not
the law at the time the district court judge
conducted this trial. However, for an error to be
plain, it is sufficient for it to be "clearly
contradictory to the law at the time of appeal."
Johnson, 520 U.S. at 468. The error substantially
prejudiced Noble’s rights by extending his
sentence 10 years in excess of the statutory
maximum.

  We must now decide whether this case triggers
our discretion to reverse by implicating the
fairness, integrity, or reputation of the
judicial process. We have refused to find such
concerns implicated when evidence supporting a
sentence above the statutory maximum is
overwhelming. See United States v. Patterson, 97-
3159, 97-3163, 97-3683, 98-1265, 98-1981 & 98-
3115 slip op. at 2 (7th Cir. Mar. 2, 2001);
United States v. Mietus, 237 F.3d 866, 875 (7th
Cir. 2001); Nance, 236 F.3d at 826. However,
Noble’s case is characterized by limited physical
evidence and minimal corroborating testimony.
Noble disputed the drug quantity for which he was
held responsible. Noble’s sentence necessarily
hinged to a significant degree on the district
court’s credibility determinations. The judge’s
finding that Noble sold 100 ounces of cocaine to
Spaeth relied wholly on Spaeth’s estimate. Noble
raised non-frivolous concerns about Spaeth’s
ability to recall the amount of drugs he
purchased over two years of drug transactions
which were inconsistent both in quantity
purchased and frequency. Although the judge also
referred to corroborating testimony supplied by
Burke, such testimony is absent from the record.
Likewise, the finding of 65 ounces of cocaine
based on Jobe’s testimony is far from ironclad.
The judge’s finding relied on Jobe’s secondhand
knowledge of the frequency with which Noble sold
drugs at strip clubs, and his extrapolation
regarding the quantity Noble sold. Although this
case does not demand reversal with the same
strength as Westmoreland, Nos. 99-1491 & 00-1348
slip op. at 23-25 (reversing sentence for plain
error when sentence violated Apprendi, and key
evidence of drug quantity was inadmissible to a
jury), we cannot conclude that a reasonable jury
would be compelled to find that Noble possessed
or distributed 1000 kilograms or more of
marijuana or marijuana equivalent. We vacate for
plain error. The district court must re-sentence
Noble within the statutory maximum 21 U.S.C. sec.
841(b)(1)(C) provides.

III.   Conclusion

  We VACATE Noble’s sentence and REMAND for
proceedings consistent with this opinion.
