18-1361-cr
United States v. Burks
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT
                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of August, two thousand nineteen.
PRESENT: ROBERT D. SACK
           PETER W. HALL
           CHRISTOPHER F. DRONEY,
                      Circuit Judges,
______________________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                         v.                                          No. 18-1361-cr

MARIO BURKS,

                              Defendant-Appellant


  FOR APPELLANT:                              Patrick J. Brown, Losi & Gangi, Buffalo,
                                              NY

   FOR APPELLEE:                              Tiffany H. Lee, Assistant United States
                                              Attorney for James P. Kennedy, Jr., United
                                              States Attorney for the Western District of
                                              Rochester, New York, NY


      Appeal from the United States District Court for the Western District of New York
(Arcara, J.).
        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that Mario Burks’s 48-month term of imprisonment imposed by the
district court is VACATED and the case is REMANDED for resentencing.

       Defendant-Appellant Mario Burks appeals from the judgment of the United States
District Court for the Western District of New York (Arcara, J.) sentencing him principally
to 48 months’ imprisonment. On appeal, Burks contends that the district court’s
calculation of drug quantity was not supported by a preponderance of the evidence,
rendering the sentence procedurally unreasonable. We agree and vacate the sentence.
We provide a brief description of the underlying facts and procedural history as relevant to
this decision, but otherwise assume the parties’ familiarity with the history and background
of the case.

I.        BACKGROUND

       On July 15, 2011, the Erie County Sheriff’s Department and Lackawanna Police
Department Narcotics Unit executed a search warrant at Burks’s apartment in Buffalo, New
York. Officers found firearms and ammunition, and seized a total of 1.21 grams of
cocaine residue from various narcotics packaging and processing materials at the apartment
and an adjoining unit.

       Burks was indicted on three counts of drug and firearms offenses, but ultimately
pleaded guilty, pursuant to a plea agreement, to one count of possession of cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). In the Plea
Agreement, Burks admitted that “prior to the police search, he knowingly and unlawfully
possessed and distributed cocaine in ½ ounce and one ounce amounts.”1 App’x 24. The
Plea Agreement states that the amount of cocaine attributable to Burks that “could be
readily proven by the government” was less than 50 grams based on the amount of cocaine
and other items seized and Burks’s admission, resulting in an estimated Sentencing
Guidelines range of 15–21 months’ imprisonment. App’x 24. The Agreement states
that Burks understood the district court was not bound by that calculation, but that neither
party would recommend any other Guidelines range or a sentence inconsistent with the
agreed-upon estimate of drug quantity.

       The pre-sentence report (“PSR”) recommended a drug quantity estimate attributable
to Burks that was substantially greater than the maximum of 50 grams agreed to in the Plea
Agreement. The PSR notes that police officers also seized $39,000 in cash from Burks’s
apartment on the day of his arrest. The PSR converted that amount to its “cocaine

1
     One ounce of cocaine weighs 28.35 grams.


                                                2
equivalent” and arrived at a drug quantity estimate of 312 grams. Based on that drug
quantity, the PSR recommended a Guidelines range of 41–51 months’ imprisonment, to
which Burks objected.

       To resolve the dispute concerning drug quantity, the district court conducted an
evidentiary hearing. An officer for the Lackawanna Police Department involved in the
search testified that Burks’s residence and the adjoining unit appeared to be “a
manufacturing operation [for] turning cocaine into crack cocaine and break[ing] it down
for distribution.” App’x 86. The officer testified that police seized weapons and
numerous items containing cocaine residue, including scales of multiple sizes, plates,
bowls, freezer bags, and two “kilo wraps.”2

         At sentencing, the district court determined that the small amount of cocaine
residue found in the apartment “does not reflect the scale of the possession with intent to
distribute.” App’x 125. In calculating drug quantity, the court relied on a statement in
the search warrant application from a police confidential source that Burks sold drugs on
“multiple occasions” during the six-month period before the search of Burks’s residence
to him and another individual for resale; Burks’s admission in the Plea Agreement and
during the plea colloquy that he had distributed cocaine in “ounce and a half quantities”
before his residence was searched; and the seized cocaine-packaging and distribution
materials, which suggested a large operation. App’x 126. The court explicitly did not
rely on the cocaine-equivalent drug quantity calculation (based on the presence of $39,000
in cash in the apartment) that was the basis for the higher calculation of 312 grams in the
PSR “in light of other reliable circumstantial evidence of relevant drug quantities in the
record and to avoid any double counting.” App’x at 128-29 However, it found that
Burks’s possession of $39,000 was evidence that he had the means to pay for a kilogram
of cocaine for redistribution. The court also did not find that two kilograms of cocaine
were attributable to the defendant based on the kilo wrappers, because “[s]ometimes,
cocaine traffickers receive less than kilograms of cocaine in kilogram-sized wrappers that
have already been broken open.” App’x 127.

       Applying a preponderance of the evidence standard, the court found the quantity of
cocaine attributable to Burks was more than 500 grams but less than two kilograms. It
calculated that amount was equivalent to “an approximate average of slightly more than
three-quarters of an ounce per week and slightly less than three ounces per week” over the
six-month period prior to the execution of the search warrant. App’x 129. It found that
amount was reasonable in light of Burks’s admissions, the buyer’s testimony, and the


2
    A “kilo wrap” is a packaging material that has the capacity to hold one kilogram of cocaine.


                                                      3
physical evidence at Burks’s home including weapons, drug processing and packaging
materials, and cocaine residue.

      Based on that drug quantity, the court calculated Burks’s Guidelines range at 63–78
months, more than three times the 15–21-month range contemplated by the Plea
Agreement. Ultimately, the court imposed a below-Guidelines 48-month sentence.
Burks appealed his sentence.

II.    DISCUSSION

       On appeal, Burks contends that the district court erred in calculating the drug
quantity attributable to him, rendering his sentence procedurally unreasonable. We
review a sentencing decision for “reasonableness,” which is akin to the deferential abuse-
of-discretion standard. See Gall v. United States, 552 U.S. 38, 46 (2007). At sentencing,
the government bears the burden of proving drug quantity by a preponderance of the
evidence. United States v. Colon, 961 F.2d 41, 43 (2d Cir. 1992). We review the court’s
drug-quantity calculation for clear error. United States v. Jones, 531 F.3d 163, 176 (2d
Cir. 2008).

       Burks’s Plea Agreement stated that the government could “readily prove[]” less than
50 grams of drug quantity, based on the amount and items seized and Burks’s admission.
App’x 24. The district court found that amount “does not reflect the scale of the
possession with intent to distribute.” App’x 125. In cases where the quantity of drugs
“seized does not reflect the scale of the offense,” the Sentencing Guidelines require courts
to “approximate” the quantity attributable to the defendant. U.S.S.G. § 2D1.1,
Application Note 5. While approximations need not be exact, the court’s underlying
factual findings cannot be “predicated on surmise and conjecture.” United States v.
Shonubi, 998 F.2d 84, 90 (2d Cir. 1993) (“Shonubi I”). Instead, courts must engage in a
“careful practice” of looking at “specific evidence—e.g., drug records, admissions or live
testimony—to calculate drug quantities for sentencing purposes.” Id. at 89.

        The district court’s approximation of a drug quantity of 500 grams to two kilograms
was based on a clearly erroneous factual finding. Specifically, the court based its
approximation, in part, on Burks’s purported admission to selling cocaine in “ounce and a
half quantities.” App’x 126. However, the Plea Agreement reflects Burks’s admission
to selling cocaine in only “½ ounce and one ounce amounts.” App’x 24.

       It is not clear the extent to which the court’s factual error affected Burks’s sentence
because the court did not clearly describe how it arrived at its quantity approximation. As
the court noted, ample evidence, including admissions, the buyer’s testimony, and physical
evidence of a larger distribution operation, supported a finding that Burks was responsible

                                              4
for a drug quantity in excess of the amount seized. It is simply not clear how much more.
To support a drug quantity approximation, courts must rely on evidence that “points
specifically to a drug quantity for which the defendant is responsible.” United States v.
Shonubi, 103 F.3d 1085, 1090 (2d Cir. 1997) (“Shonubi II”). While such evidence may
be circumstantial or based on informed approximation, it must be “specific to the
defendant” and provide information “regarding the quantity of illicit . . . goods.” United
States v. Archer, 671 F.3d 149, 162 (2d Cir. 2011) (emphasis added); see also United States
v. Pauling, 924 F.3d 649, 657 (2d Cir. 2019) (in analogous context concerning proof
required to satisfy element of charged crime, interpreting Archer to require “evidence from
which quantity can, through inference, be logically approximated or extrapolated”).

        Here, the district court did not adequately describe how it inferred quantity from the
evidence on which it relied.3 To the extent that the court extrapolated quantity based on
its calculation of sales of “slightly more than three-quarters of an ounce per week and
slightly less than three ounces per week” over the six-month period leading up to the
execution of the search warrant, it erred. App’x 129. The only evidence in the record
from which to infer the frequency of drug sales was the testimony of the confidential source
that Burks sold cocaine on “multiple occasions” over six months. App’x 126. That
testimony is insufficient from which to extrapolate any particular frequency of sales, let
alone weekly sales. Cf. United States v. Blount, 291 F.3d 201, 215-16 (2d Cir. 2002)
(approving court’s extrapolation of drug quantity based on witnesses’ testimony
concerning estimated frequency and approximate ranges of quantities of sales over known
period); United States v. Moreno, 181 F.3d 206, 214, 214 n.3 (2d Cir. 1999) (same)
(abrogated on other grounds). Absent any supportable basis for the court’s calculation, its
approximation appears to be impermissible “surmise and conjecture.” Shonubi I, 998 F.2d
at 90.

       The court therefore clearly erred in approximating the drug quantity attributable to
Burks. Although it ultimately imposed a below-guidelines sentence, the record does not
allow for sufficient review to ensure that the court correctly calculated the Guidelines
range. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016) (finding that
ordinarily “a defendant who has shown that the district court mistakenly deemed applicable
an incorrect, higher Guidelines range has demonstrated a reasonable probability of a

3
  Although it could have, the court explicitly did not adopt the approach advocated by the PSR to calculate
drug quantity based on the cocaine equivalent of the value of cash seized from Burks’s residence, as noted
above. See Jones, 531 F.3d at 175 (finding that “where . . . seized currency appears by a preponderance
of the evidence to be the proceeds of narcotics trafficking, a district court may consider the market price
for the drugs in which the defendant trafficked in determining the drug quantity represented by that
currency”).


                                                    5
different outcome.”). We therefore remand to the district court to conduct a new
calculation of drug quantity and to resentence Burks.

                                    * * *

      For the foregoing reasons, we VACATE the 48-month term of imprisonment
imposed by the district court and REMAND for resentencing.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk of Court




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