                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 18-1050
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                               TOZINE TILLER, a/k/a TO,

                                         Appellant

                                      ____________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                                 (No. 1:14-cr-00699-006)
                        District Judge: Hon. Jerome B. Simandle

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   January 22, 2019

    Before: CHAGARES, BIBAS, Circuit Judges, and SÁNCHEZ, Chief District Judge *

                                (Filed: February 20, 2019)

                                      ____________

                                       OPINION +
                                      ____________




*
 The Honorable Juan R. Sánchez, Chief United States District Judge of the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
+
 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
CHAGARES, Circuit Judge.

       Tozine Tiller pleaded guilty to distributing 27.6 grams of crack cocaine, which

carries a maximum statutory penalty of 20 years of imprisonment. At sentencing, the

District Court found that Tiller was responsible for over 3.3 kilograms of cocaine and

sentenced him to 235 months of imprisonment. He appeals, arguing that the District

Court relied too heavily on hearsay to find a drug quantity too far above the amount to

which he pleaded guilty. He also argues that the Government violated his plea agreement

by arguing for this higher drug quantity. For the following reasons, we will affirm.

                                             I.

       Because we write only for the parties, we recite just those facts necessary to our

disposition.

       Tiller was indicted of multiple drug offenses related to distributing crack cocaine.

Under a plea agreement, Tiller pleaded guilty to distributing 27.6 grams of crack on June

11, 2013, in violation of 21 U.S.C. § 841(b)(1)(C), and the Government dismissed the

remaining charges.

       At sentencing, the court rejected Tiller’s contention that the June 11 transaction

was the only relevant conduct as well as the Government’s contention that relevant

conduct included drug transactions by others in the drug operation. Instead, applying the

definition of “relevant conduct” in the United States Sentencing Guidelines (“U.S.S.G.”)

§ 1B1.3, the court determined that “the proper place to draw that line is those

distributions of cocaine or crack cocaine by Tozine Tiller himself either to him or from

him that were occurring around the same relevant period in time.” Appendix

                                             2
(“App.”) 74. Based on the guilty-plea colloquies and proffer statements of others in the

drug operation — corroborated by wiretap transcripts and evidence of controlled buys

and drug seizures — the District Court found Tiller personally responsible for

transactions of over 3.3 kilograms of crack.

       This drug-quantity finding put Tiller’s base offense level at 34 (for between 2.8

and 8.4 kilograms of crack). The District Court also found that sufficient reliable

evidence supported two-point enhancements for maintaining drug premises and for

Tiller’s role in the offense, and that Tiller was entitled to a two-point reduction for

acceptance of responsibility. The court therefore calculated Tiller’s offense level to be

36. With Tiller’s Criminal History Category of III, his advisory Guidelines range was

235–293 months, capped at the statutory maximum of 240 months. After considering the

18 U.S.C. § 3553(a) factors, the District Court sentenced Tiller to 235 months of

imprisonment. Tiller timely appealed.

                                               II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.

                                             III.

       Tiller appeals his sentence on two grounds. First, he argues that the District Court

committed a procedural error in calculating his Guidelines range. Second, he argues that




                                               3
the Government violated his plea agreement. Tiller admits that “these issues appear to be

non-starters” based on our precedents. Tiller Br. 17. Since we agree, we will affirm.

                                              A.

       First, Tiller claims that the District Court overly relied on hearsay to find a drug

quantity far exceeding the amount to which he pleaded guilty. We review a claim of

procedural error in sentencing for abuse of discretion, here by “ensuring that the district

court . . . correctly calculated the defendant’s advisory Guidelines range.” United States

v. Freeman, 763 F.3d 322, 335 (3d Cir. 2014).

       Hearsay statements may be considered at sentencing provided that they have some

minimal indicium of reliability beyond mere allegation. United States v. Robinson, 482

F.3d 244, 246 (3d Cir. 2007); see also U.S.S.G. § 6A1.3(a) (providing that sentencing

courts may consider any evidence that “has sufficient indicia of reliability to support its

probable accuracy”). Hearsay evidence corroborated by the record can satisfy this

standard without cross-examination. See, e.g., United States v. McClure-Potts, 908 F.3d

30, 37–38 (3d Cir. 2018). Here, the District Court carefully identified evidence

corroborating all the drug quantities that it credited and discounted any drug quantities

proved solely by allegations. Although Tiller objects to the extent of hearsay that the

court considered, he does not claim that any credited evidence was uncorroborated or

otherwise insufficiently unreliable. And it is the reliability of hearsay, not how much the

court relies on it, that sets “the outer limits on use of hearsay at sentencing.” Tiller

Br. 17. The District Court therefore committed no procedural error considering and

crediting corroborated hearsay.

                                               4
         Tiller also objects to the degree that judicial factfinding affected his sentence. He

argues that his sentence must be inconsistent with the Fifth and Sixth Amendments

because it “is nearly five times higher than the highest sentence he would have received”

under the Guidelines based solely on the facts to which he pleaded guilty. Tiller Br. 7.

But the crime to which Tiller pleaded guilty carried a sentence of up to 20 years in prison.

See 21 U.S.C. § 841(b)(1)(C). Tiller was well advised of this fact in his plea agreement,

in his application to plead guilty, and during his plea colloquy, and he acknowledges it

now on appeal. Sentencing Tiller within the statutory sentencing range based on judicial

factfinding by a preponderance of the evidence accords with our precedents and the

Constitution. See, e.g., United States v. Gonzalez, 905 F.3d 165, 205–06 (3d Cir. 2018);

United States v. Freeman, 763 F.3d 322, 338 (3d Cir. 2014); United States v. Smith, 751

F.3d 107, 117 (3d Cir. 2014); United States v. Fisher, 502 F.3d 293, 305–08 (3d Cir.

2007).

         Tiller recognizes these precedents, but tries to distinguish them. In these cases,

Tiller argues, there was “room within the charge” of conviction to find higher drug

amounts because the defendant stipulated to drug amounts above the charge or pleaded

guilty to several counts, to conspiracy, or to unspecified quantities of drugs. Tiller

Br. 22. Since he pleaded guilty only to distributing 27.6 grams of crack once, he believes

that “[t]here was no room within the count . . . to go anywhere above 28 grams.” Tiller

Br. 23. Neither the Constitution nor the Guidelines support this contention. The

Constitution permits the court to sentence Tiller within the statutory sentencing range

based on judicial factfinding. See Fisher, 502 F.3d at 305–08. And the Guidelines

                                               5
specifically instruct sentencing courts to do so based on “relevant conduct.” U.S.S.G.

§ 1B1.3. Although the Guidelines define “relevant conduct” broadly, the District Court

credited only “evidence that Tozine Tiller himself bought cocaine or crack cocaine or

sold cocaine or crack cocaine during this period of time” to determine the drug quantity

for which Tiller was responsible. App. 52–53; see U.S.S.G. § 1B1.3(a)(1)(A) (defining

“relevant conduct” to include “all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by the defendant”). 1

Thus, the distinctions that Tiller notes in these precedents make no legal difference, and

the District Court committed no procedural error.

                                            B.

       Second, Tiller claims that the Government breached his plea agreement by arguing

for a drug quantity above the 27.6 grams of crack that he admitted to distributing, citing

Santobello v. New York, 404 U.S. 257, 262 (1971). “Whether the Government has

violated the terms of a plea agreement is a question of law, subject to plenary review.”

United States v. Miller, 833 F.3d 274, 283 (3d Cir. 2016). 2 We ask whether the

Government’s conduct is inconsistent with what the defendant reasonably understood.

Id. at 284. “Reasonably understood is a purely objective standard governed by the



1
  Tiller does not identify any transaction that should not have been credited based on
when it occurred. Thus, we consider forfeited any challenge to the time period that the
District Court considered. See, e.g., United States v. Shaw, 891 F.3d 441, 455 n.17 (3d
Cir. 2018).
2
  The Government calls it “debatable” whether Tiller preserved this claim or whether it
should be reviewed only for plain error, but “treats it as preserved as the standard of
review makes no difference to the outcome.” Gov. Br. 33 n.4. We do the same.
                                             6
common law of contract.” United States v. Davenport, 775 F.3d 605, 609 (3d Cir. 2015)

(quotation marks omitted).

       Tiller argues that “no defendant could reasonably understand that a plea to a single

count of distributing fewer than 28 grams of crack cocaine . . . would nonetheless permit

the Government to proceed as if he had been convicted on everything.” Tiller Br. 25.

But the plain language of the plea agreement reserved the Government’s right “to take

any position” on the appropriate Guidelines base offense level and sentence, “including

by relevant conduct.” App. 9. And it permitted the Government to disclose “the full

nature and extent of Tozine Tiller’s activities and relevant conduct with respect to this

case.” App. 10. Given this language, which was emphasized at his plea hearing, Tiller

could not have reasonably understood the plea agreement to bar the Government from

arguing that “relevant conduct” included drug transactions besides the one to which he

pleaded guilty. 3

       Tiller also argues that he could not have reasonably understood what “relevant

conduct” the District Court would find since “counsel below and even the sentencing

court struggled with the issue of what was relevant conduct.” Tiller Br. 25. But his plea

agreement promised no conclusion about “relevant conduct.” On the contrary, the


3
  Although not relevant to our interpretation of the language of the plea agreement, the
Government also notes that there was nothing unusual about its arguing that “relevant
conduct” included multiple drug transactions after Tiller pleaded guilty to only a single
transaction. The Guidelines provide that “a plea agreement that includes the dismissal of
a charge . . . shall not preclude the conduct underlying such charge from being considered
under the provisions of § 1B1.3 (Relevant Conduct) in connection with the count(s) of
which the defendant is convicted.” U.S.S.G. § 6B1.2(a); see also United States v.
Williams, 917 F.2d 112, 114 (3d Cir. 1990).
                                             7
Government specifically reserved its right to “take any position” on that question.

App. 9. Tiller could — and likely would — take a different position, and the court would

have to resolve the issue. In other words, a dispute over “relevant conduct” is all that

Tiller’s plea agreement promised.

       Since the Government’s behavior was consistent with the plea agreement as

reasonably understood, Tiller’s claim of breach fails.

                                            IV.

       For these reasons, we will affirm the judgment of sentence.




                                             8
