                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0595n.06

                                           No. 09-6053                                     FILED

                            UNITED STATES COURT OF APPEALS                            Aug 22, 2011
                                 FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )   ON APPEAL FROM THE UNITED
                       v.                         )   STATES DISTRICT COURT FOR THE
                                                  )   EASTERN DISTRICT OF TENNESSEE
JOSE A. HERNANDEZ,                                )
                                                  )
       Defendant-Appellant.                       )




       BEFORE:         KEITH, CLAY, and COOK, Circuit Judges.

       KEITH, Circuit Judge. This case arises out of defendant Jose A. Hernandez’s appeal of

his conviction for possession with intent to distribute and aiding and abetting other defendants with

their intent to distribute 500 grams or more of a mixture or substance containing a detectable amount

of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846. On appeal, Hernandez

raises two issues. First, Hernandez argues that police officers illegally searched his home, and

therefore, the district court should have suppressed all evidence found during that search. Second,

Hernandez argues that the district court incorrectly approximated the quantity of cocaine that

Hernandez conspired to distribute based on the cash found in his possession.

       For the reasons discussed below, we AFFIRM the district court’s judgment.

                                  FACTUAL BACKGROUND
       On October 9, 2008, at approximately 5:30 a.m., Officer William Rhodes of the Washington

County (Tennessee) Sheriff’s Department stopped a black pickup truck that he observed weaving

between lanes. The driver, Antonio Romero Chavez, failed a field sobriety test and was arrested for

driving under the influence. Cecilia Heatherly, a co-defendant, was a passenger in the car.
No. 09-6053
United States v. Hernandez


       A subsequent search of Chavez’s car revealed $20,000. As a result of the find and its size,

Rhodes contacted Agent Vince Walters, a Johnson City Police Officer working with the Drug

Enforcement Agency. Walters subsequently departed towards the Ideal Storage facility, which

Chavez had been driving towards at the time of his and Heatherly’s stop.

       Walters arrived at the storage facility around 10:45 a.m. and observed a black Chevrolet

Suburban sport utility vehicle (“SUV”) surrounded by a group of men, including defendant Jose
Hernandez. After speaking with Hernandez, co-defendant Emigdio Rodriguez and co-defendant

Elias Lopez, Walters conducted a consensual search of the black SUV. The vehicle search revealed

one kilogram of cocaine and $69,190. As neither Hernandez nor Lopez spoke any English, Walters

used Rodriguez as a translator to provide both defendants with Miranda warnings in Spanish before

arresting them. Once the warnings had been provided, Walters transported Hernandez, Lopez and

Rodriguez to the Washington County Detention Center. Heatherly was subsequently arrested on an

outstanding warrant.

       Upon Hernandez and Lopez’s arrival at the detention center, a series of officers attempted

to obtain their consent to search the trailer they co-habited in Washington County. As a means of

obtaining such, officers requested the assistance of Deputy Amy Chizmar, who had received a

bachelor’s degree in Spanish from East Tennessee State University, and grew up speaking a

Guatemalan dialect of Spanish. Hernandez refused to consent to the search, but Lopez proved more

willing. Chizmar provided Lopez a “Consent to Search” form, which she independently had

translated into Spanish. Before asking Lopez to sign the form, she reviewed the form with him

orally, allegedly explaining to him in Spanish that he had the right to withhold consent and that the

police expected to find additional drugs and money when they searched the residence. Lopez

subsequently signed the form.



                                                 2
No. 09-6053
United States v. Hernandez


        According to Hernandez, the language the form used was, at best, exceedingly formal, and,

at worst, incorrect. Hernandez alleges that in many instances words were spelled incorrectly and

formal words were used in place of the terms commonly used to communicate the intended ideas.

The situation was further compounded, Hernandez argues, by the fact that Lopez, who received only

one year of formal education, is illiterate – that is, he cannot read and has only limited verbal Spanish

ability. At no point did Lopez or anyone else inform Chizmar of Lopez’s limited language abilities.
        Upon obtaining Lopez’s signature, the officers searched Lopez and Hernandez’s trailer. The

search revealed $8,909 in cash hidden in a wall.

        Based on the cash and drugs recovered from the trailer, the black SUV, and Chavez’s black

pickup truck, the officers concluded that defendants Chavez, Lopez, Rodriguez, Heatherly, and

Hernandez together were responsible for distributing approximately two to four kilograms of cocaine

per week over the course of a ten-month period. All five were subsequently indicted.

        Before trial, Hernandez and Lopez moved to suppress the $8,909.00 found in the wall of their

trailer. The dispute turned on whether Chizmar had used the proper Spanish term for search.

Chizmar, in the form, used the term “registro” to explain that the police desired to search his trailer.

Chizmar admitted upon cross-examination that “registro” normally is used to convey an intent to

register, but defended her use of it on the form by noting that one of its accepted English translations

is “to search.” The defense presented testimony from Randall Wittig, a Spanish interpreter and

translator, who criticized the language Chizmar had used in the form as exceedingly formal, to the

point that it may have confused some Spanish speakers. In particular, Wittig noted that the word

“cateo,” which is commonly used to express an intent to search, was not included in the form. In

response to Chizmar’s testimony that “registro” technically meant search, Wittig admitted that while

this may be the case in some Latin American countries, it is not used in Mexico, from which Lopez



                                                   3
No. 09-6053
United States v. Hernandez


hails. Wittig, however, noted that if the form had been explained verbally, it may have been easier

to understand. No other testimony was provided.

       The magistrate judge issued a report and recommendation (“R & R”) recommending that the

motion to suppress be denied because Lopez’s consent was voluntary. The magistrate judge found

that any problems with the consent form were immaterial in light of the fact that “Deputy Chizmar

conversed with Mr. Lopez and she conversationally told him the purpose of the consent form and
what she and the other officers were requesting.” R. 86, R & R, at 8. The magistrate judge further

noted that “even if the consent form had been worded as Mr. [Wittig] testified it should have been,

it would have made absolutely no difference since Mr. Lopez was illiterate; he could not have read

it in any event.” Id.

       Hernandez filed an objection to the magistrate judge’s R & R with the district court. Before

ruling, the district court heard additional testimony from Chizmar and Wittig. During her testimony,

Chizmar reiterated that before she offered Lopez the form to sign, she verbally explained the form

and the authorities’ intent to search his residence. Chizmar then read the form into the record,

translated into English as follows:

       Elias Lopez, having been informed of my constitutional rights to not authorize a
       search without a search warrant, having been informed of my right to deny the search,
       I declare that I authorize the search on behalf of Seargent Gregg, an officer of the
       Washington County Sherriff’s Office, Johnson City, Tennessee, and whichever other
       officer of another agency that has been called to help conduct the search completed
       at my property located at 487 Washington College. These officers are authorized to
       take from my property papers, letters, materials, contraband or other property that
       they deem necessary. This permit, written permission is given to the officer stated
       above voluntarily and without threats or promises.


R. 178, Dist. Ct. Hr’g Tr. at 6-7. Chizmar stated that the form had been translated from English to

Spanish “just the way it is written in English.” Id.




                                                 4
No. 09-6053
United States v. Hernandez


       Wittig testified and reiterated his view that the form contained a poor and inaccurate

translation, the effect of which was compounded by Lopez’s limited language abilities. When

pressed by the district court as to how, given the context, “registro” could have meant anything but

search, Witting conceded, “okay, it must be about a search.” Id. at 15-16.

       After hearing Chizmar’s and Wittig’s testimony, the district court adopted the magistrate’s

Report. The district court explained that:
       there is some caselaw out there that suggests that there may be language barriers that
       prevent a defendant from voluntarily agreeing to a search, voluntarily consenting; but
       I believe that in every case that I found there was testimony from the defendant
       himself that he did not in fact understand what he was told. I don’t have any such
       testimony in this case . . . given the record, I think I have no alternative other than to
       overrule the objections and affirm the Magistrate Judge.

Id. at 21-22. On March 19, 2009, a jury convicted Hernandez and the case was moved to sentencing.

       The United States Probation Office prepared a Presentence Investigation Report (“PSR”).

The PSR concluded that Hernandez was responsible for having distributed 4.4 kilograms of cocaine

To arrive at this drug quantity, the PSR converted the sum of $98,099, representing seized currency,

into 3.4 kilograms by dividing the total cash amount by $29,000, the wholesale price of a kilogram

of cocaine. This amount of 3.4 kilograms was then added to the one kilogram of cocaine found at

the storage location where Hernandez, Lopez and Rodriguez were arrested, resulting in a total drug

quantity of 4.4 kilograms, which yielded a base offense level of thirty. After applying a two-level

enhancement for obstruction of justice, the PSR concluded that Hernandez’s total offense level was

thirty-two. Hernandez was placed in criminal history category I. A total offense level of thirty-two

and criminal history category I yielded an advisory Guidelines range of 121 to 151 months of

imprisonment.

       Hernandez objected to the PSR, arguing, among other things, that it erroneously calculated

the quantity of drugs for which Hernandez was responsible. First, Hernandez contested that


                                                   5
No. 09-6053
United States v. Hernandez


sufficient evidence existed linking him to the $20,000 found in Chavez’s car. Second, Hernandez

disagreed that the proper conversion rate should be based on the wholesale price of one kilogram of

cocaine unmixed with any other substance; instead, he argued that the proper conversion rate should

be the price at which Hernandez sold the cocaine mixed with other substances: $110,000 per

kilogram. In support, he cited the testimony of William Gregg, a lieutenant in the Washington

County Sheriff’s Department, who testified, at the government’s request, that while the wholesale
cost of purchasing one kilogram of cocaine is $29,000, individuals selling drugs do not sell cocaine

by the kilogram. Rather, he stated that narcotics distributors sell cocaine in smaller packages,

ranging between one gram and one ounce. Gregg further testified that persons distributing drugs

frequently mix cocaine with other masking agents that dilute the quality of cocaine, and therefore,

pure cocaine, rarely, if ever, is found on the street. Gregg estimated that, on average, a gram of

cocaine sells for approximately $1,000. Therefore, one kilogram of cocaine could be worth as much

as $110,000.

       The government presented testimony from Gregg that while cocaine is often sold in packages

weighing less than a kilogram, smaller amounts are not always sold in gram quantities. Rather,

Gregg testified, traffickers also sell drugs by the ounce. On such occasions, the price is much closer

to the wholesale price of a kilogram:

       Generally if we buy an ounce, they’ll give you a cut rate price; so if you’re buying
       grams from them, they’re going to hit you at $100 a time; but if you’re going to call
       and say, I need an ounce, they’re going to cut you a deal. An ounce is 28 grams, and
       we generally get it for a thousand dollars.

R. 174, Dist. Ct. Hr’g Tr. at 63. The government elicited further testimony demonstrating that the

conspiracy in which Hernandez was involved distributed cocaine by the ounce at prices which

roughly accorded with the price to which Gregg testified. For example, Heatherly testified that

Romero would often break up one kilogram of cocaine into smaller pieces of approximately ten


                                                  6
No. 09-6053
United States v. Hernandez


ounces in size “depend[ing] on what they wanted.” Id. at 34. In return, she would receive anywhere

between $7,000 and $10,000 depending on the amount of cocaine she delivered. Heatherly further

testified that Hernandez, on Romero’s orders, would often deliver cocaine packages of similar sizes.

Rodriguez, who purchased cocaine from Hernandez, also testified as to the size of Hernandez’s sales.

Rodriguez recounted that he purchased cocaine from Hernandez for approximately three months,

and would purchase “two to four ounces of cocaine at a time” and pay anywhere between $800 and
$920 per ounce. Id. at 73.

       In considering the appropriate drug quantity, the district court began by eliminating the

$20,000 found in Chavez’s and Heatherly’s vehicle from the conversion calculation, reasoning that

no testimony at trial directly linked the cash to Hernandez. Accordingly, the total cash amount

remaining to be converted into drug quantity was $78,099, as opposed to the $98,099 figure the PSR

initially proposed.

       The district court then rejected Hernandez’s argument that the PSR used an improper price

of cocaine when calculating the amount of the drugs Hernandez had handled. The court began by

noting that “[i]t seems reasonably clear from the proof at trial . . . that the seventy-eight thousand

[dollars] . . . represented the proceeds of drug sales.” R. 168, Sentencing Hr’g Tr., Sept. 30, 2009,

at 9. The court then explained that although “there is some language in these Sixth Circuit cases

about the quantity of cocaine used being the amount represented as having been sold rather than the

amount which could have been purchased [with the cash found],” the latter provided the appropriate

method of conversion. Id. at 10. The court explained:

       As I said, the Sixth Circuit has repeatedly approved a conversion where the Court
       determines the price generally obtained for the controlled substance and converts that
       amount of cash to the amount that could be obtained. And absent any case law that
       suggests another way of calculating it, that’s what the Court’s going to apply.

Id.


                                                  7
No. 09-6053
United States v. Hernandez


       Accordingly, the court converted the cash, $78,099, to 2.7 kilograms of cocaine by dividing

the cash by $29,000 and added that to the actual kilogram of cocaine found, for an aggregate drug

quantity of 3.7 kilograms. Applying its finding to the Sentencing Guidelines, the district court

concluded that Hernandez’s recommended sentence was between 121 and 151 months of

imprisonment. The district court concluded that a below the Guidelines sentence of ninety-six

months was appropriate.
       Hernandez timely appealed the denial of his motion to suppress and his sentence.

                                           DISCUSSION
       As noted above, Hernandez raises two issues on appeal. First, he argues that Lopez did not

knowingly and voluntarily consent to the police search of their home. Second, Hernandez argues

that the district court incorrectly calculated the amount of cocaine attributable to him because the

court relied on the wholesale price of one kilogram of cocaine, as opposed to the price at which

Hernandez sold the cocaine. Accordingly, he argues that his sentence, the length of which was

dependent on the amount of drugs he distributed, was incorrect.

       I.      The District Court Properly Denied Hernandez’s Motion to Suppress.

               A.      Standard of Review
       When reviewing a district court’s denial of a motion to suppress evidence, the district court’s

factual findings are examined for clear error, while its conclusions of law are reviewed de novo.

United States v. Jenkins, 124 F.3d 768, 771-72 (6th Cir. 1997). The evidence is reviewed in the light

most favorable to the district court’s conclusions. Id. at 772. “A factual finding is clearly erroneous

when, although there may be evidence to support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.” United States v. Blair,

524 F.3d 740, 747 (6th Cir. 2008) (internal quotation marks and citation omitted).



                                                  8
No. 09-6053
United States v. Hernandez


                B.      Analysis
        It is well established that the Fourth Amendment prohibits government intrusion into one’s

home without obtaining a search warrant, receiving voluntary consent or the existence of exigent

circumstances. Griffin v. Wis., 483 U.S. 868, 883 (1987). The determination of “whether consent

to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is

a question of fact to be determined from the totality of all of the circumstances.” Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973). Several factors should be examined when determining

whether consent is valid, including the age, intelligence, and education of the individual who

purported to give consent; whether that individual understood the right to refuse consent; whether

that individual understood his or her constitutional rights; the length and nature of detention; and the

use of coercive or abusive conduct by the police. United States v. Jones, 846 F.2d 358, 360 (6th Cir.

1988) (citing Schneckloth, 412 U.S. at 226, 248).

        “Consent must be proved by clear and positive testimony and must be unequivocal, specific,

and intelligently given, uncontaminated by any duress and coercion.” United States v. Williams, 754

F.2d 672, 674-75 (6th Cir. 1985). Moreover, in a warrantless search, the government bears the

burden of proving consent. Jones, 846 F.2d at 360. “This burden is of course heavier where it

appears that the owner is illiterate or a foreigner who does not readily speak and understand the

English language.” Kovach v. United States, 53 F.2d 639 (6th Cir. 1931) (per curiam); see also

United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) (explaining that “language

barriers may inhibit a suspect’s ability to [act] knowingly and intelligently”).

        Although we have yet to consider a situation analogous to the one at issue in this case, a

number of other circuits have considered similar circumstances, and refused to reverse the district

court’s denial of a motion to suppress. See, e.g., United States v. Rojas-Millan, 234 F.3d 464, 470

(9th Cir. 2000) (“[Defendant] objects to the use of the verb ‘registren,’ which, according to the

                                                   9
No. 09-6053
United States v. Hernandez


testimony of a court translator, could mean either ‘to search’ or ‘to register.’ This argument

collapses, however, because the translator further testified that, in the context of the form, ‘registren’

meant ‘to search.’” (internal citations omitted)); United States v. Perez-Llanes, No. 04-2224, 2005

U.S. App. LEXIS 9375, at *2 (8th Cir. May 16, 2005) (finding that consent was valid even though

“the officer asked Perez if the officers could search the car, using the Spanish word ‘registrar’ rather

than ‘esculcar.’”); United States v. Garza, 118 F.3d 278, 282-83 (5th Cir. 1997) (refusing to reverse
a district court’s finding that defendant voluntarily consented where the police misspelled the

Spanish word for “premises,” therefore resulting in the use of a term meaning “logical proposition”

and defendant testified that he did not understand police were going to search his home). While

these cases decided by other circuits are merely persuasive, the circumstances of this case do not

support a conclusion that the district court’s finding was clearly erroneous.

        Hernandez’s argument rests primarily upon Chizmar’s allegedly incorrect use of the Spanish

word for search. But even if the word was incorrect, Hernandez admits that Lopez was illiterate,

meaning that he could not have read the form, regardless of what word it used. What the form said,

much less whether one word was correctly or incorrectly used in it, cannot be dispositive as to

Lopez’s consent. See Garza, 118 F.3d at 282 (“The fact that the consent form was incorrectly

translated is irrelevant given that Inocencio never read the form and could not have mistakenly relied

on its translation.”); see also United States v. Acosta-Tapia, 69 F. App’x 885, 887 (9th Cir. 2003)

(“We note, however, that the officers could have eliminated any question about the consent in this

case by reading the Spanish translation of the consent form aloud to Ortiz, who was largely illiterate

but could understand spoken Spanish.”).

        Rather, whether Lopez voluntarily consented is largely dependant upon the sufficiency of the

oral explanation that Chizmar provided to Lopez. Chizmar testified that she not only orally asked

for Lopez’s consent, but also explained to him verbally what the police were looking for and that

                                                   10
No. 09-6053
United States v. Hernandez


Lopez had the right to withhold consent. Hernandez presents no specific evidence: a) disputing

Chizmar’s allegations as to what she told Lopez; b) suggesting that her description and request was

insufficient or misleading; or c) supporting the notion that Lopez did not understand what Chizmar

said to him. Rather, he relies solely on the fact that Chizmar grew up speaking a Guatemalan dialect

of Spanish and that Lopez is from Mexico. On this basis, he speculates that just as Chizmar used

the incorrect term for search, she likely used incorrect terms for a number of other words in her oral
explanation. Undoubtedly, the quality and appropriateness of a translation is an important

consideration for a reviewing court in determining whether consent was voluntary in a case such as

this; nevertheless, speculation as to the use of an incorrect dialect, and what might have been said,

does not demonstrate clear error.

          Even assuming that Chizmar, in her oral conversations with Lopez, used the Spanish word

“registro” to convey an intent to search, we cannot conclude that this error alone was so great as to

render the district court’s finding clearly erroneous. While one may speculate that Lopez had

questions as to the meaning of the term itself, given Chizmar’s testimony that as she provided Lopez

with an oral explanation in Spanish that he had the right to withhold consent and that the police

expected to find additional drugs and money when they searched the home, the district court

reasonably found that Lopez’s consent was valid. See United States v. Marin, 761 F.2d 426, 434 (7th

Cir. 1985) (“The consent form, as translated by the interpreter at the suppression hearing, did not

translate perfectly into English. Although certain nuances of the original may be lost, it is possible

to translate between Spanish and English; we agree . . . that the Spanish translation adequately

communicated the concepts . . . .”). Finally, this conclusion is further supported by Hernandez’s own

expert who admitted during his cross-examination that given the context of what was being said, it

is not clear what Lopez could have understood the conversation to be about other than a police

search.

                                                 11
No. 09-6053
United States v. Hernandez


       Admittedly, there are troubling aspects of this case, but without any evidence supporting

Hernandez’s argument that what Chizmar said during her oral explanation was inaccurate or

improper – for example, testimony from Lopez – we cannot conclude that the district court

committed clear error. See United States v. Gutierrez, 221 F. App’x 446, 450 (7th Cir. 2007)

(“[Defendant] calls the form ‘defective’ and seems to suggest that he did not understand the consent

form because it was poorly translated. Yet he offers no reason why the district court was wrong to
conclude that given the context of the encounter, he must have understood that the agents were

asking for permission to search.”).

       Accordingly, the district court’s denial of Hernandez’s motion to suppress is affirmed.

       II.     The District Court’s Calculation of the Amount of Drugs Hernandez
               Distributed Was Not Clearly Erroneous.

               A.      Standard of Review
       We review a sentencing court’s determination of drug quantity for clear error. United States

v. Bartholomew, 310 F.3d 912, 923 (6th Cir. 2002). The quantity of drugs must be supported by a

preponderance of the evidence. United States v. Hough, 276 F.3d 884, 891 (6th Cir. 2002). “A

finding [of fact] is clearly erroneous when, although there may be some evidence to support [the

finding], the reviewing court on the entire evidence is left with the definite and firm conviction that

a mistake has been committed.” Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) (quoting

United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

               B.      Analysis
       For sentencing purposes, Hernandez’s base offense level for the crime of possession with

intent to distribute cocaine is determined pursuant to § 2D1.1 of the United States Sentencing

Guidelines (“U.S.S.G.”). The commentary to § 2D1.1 states that

       [t]ypes and quantities of drugs not specified in the count of conviction may be
       considered in determining the offense level. See § 1B1.3(a)(2) (Relevant Conduct).

                                                  12
No. 09-6053
United States v. Hernandez


       Where there is no drug seizure or the amount seized does not reflect the scale of the
       offense, the sentencing judge shall approximate the quantity of the controlled
       substance. In making this determination, the judge may consider, for example, the
       price generally obtained for the controlled substance, financial or other records,
       similar transactions in controlled substances by the defendant, and the size or
       capability of any laboratory involved.

U.S.S.G. § 2D1.1 cmt. n.12.

       Relying on comment 12, this Court has previously approved the conversion of seized funds

into an equivalent amount of drugs, United States v. Keszthelyi, 308 F.3d 557, 577 (6th Cir. 2002)
(collecting cases), as long as the government “prove[s] by a preponderance of the evidence both the

amount of money attributable to drug activity and the conversion ratio – i.e., the price per unit of

drugs,” id. (citing United States v. Jackson, 990 F.2d 251, 253 (6th Cir. 1993)); see also United

States v. Sandridge, 385 F.3d 1032, 1037 (6th Cir. 2004), and the district court errs on the side of

caution in making this estimate. See Keszthelyi, 308 F.3d at 577.

       As noted, Hernandez argues that the district court incorrectly used the wholesale purchase

price of one kilogram of cocaine, $29,000, as opposed to the actual price at which cocaine is sold

on the street. In support, Hernandez relies exclusively on the testimony of Lieutenant Gregg that

street vendors often sell cocaine in small quantities after mixing in various other agents. Ultimately,

one kilogram of cocaine, when mixed with other agents, Gregg testified, could be worth as much as

$110,000.

       Hernandez, in arguing that the $110,000 per kilogram rate should have been used at his

sentencing, overlooks two salient points. First, while Gregg testified that a gram could sell for as

much for $110,000, he also pointed out that cocaine is often sold by the ounce. In such

circumstances, the cocaine trafficker often provides the buyer a discounted rate of $1,000 per ounce

or approximately, $35,300 per kilogram – a rate roughly similar to the one used by the district court.

Second, Hernandez overlooks that all available evidence in this case suggests that he sold cocaine,


                                                  13
No. 09-6053
United States v. Hernandez


not by the gram, but rather by the ounce. Accordingly, if we were to accept Gregg’s testimony as

to the price of cocaine when sold by street vendors, it would be inapplicable to Hernandez’s

situation. As noted, Heatherly, Hernandez’s co-defendant, testified that Romero, the leader of the

scheme, would purchase cocaine by the kilogram and then break off ounce quantities for Heatherly

and Hernandez to distribute. Heatherly testified that she would usually transport packages

containing at least ten ounces of cocaine and, in return, would receive payments of approximately
$7,000-$10,000, or $24,700-$35,300 per kilogram. She testified that Hernandez would likewise

deliver packages containing similar quantities of cocaine. While she was unaware of the amount of

cash that Hernandez would receive in return, Rodriguez testified that he bought anywhere between

two and four ounces from Hernandez and, in return, paid between $800 and $920 per ounce, or

anywhere between $28,200 and $32,400 per kilogram.

       Had Hernandez presented compelling evidence that he did in fact distribute cocaine by the

gram and then sold it at the price Gregg’s testimony indicated, a different resolution may have been

appropriate. However, all available evidence indicates that Hernandez distributed cocaine by the

ounce and did so for a price roughly equivalent to that used by the district court for the purposes of

its approximation calculation. Given the substantial evidence supporting the district court’s decision,

we cannot say its approximation was clearly erroneous. See Sandridge, 385 F.3d at 1038 (reversing

district court’s calculation where “no evidence was presented to show that the cash was related to

the sale of cocaine base, as opposed to marijuana, the other drug found in Sandridge’s car”); United

States v. Samour, 9 F.3d 531, 538 (6th Cir. 1993) (finding lower court’s calculation clearly erroneous

where “there was no testimony in the record regarding the $300 or $320 amounts, and the record

[did] not indicate how the district court reached these figures”), overruled on other grounds by

United States v. Reed, 77 F.3d 139 (6th Cir. 1996).



                                                  14
No. 09-6053
United States v. Hernandez


                                        CONCLUSION

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




                                             15
