                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0003n.06

                                            No. 18-1380


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Jan 04, 2019
 UNITED STATES OF AMERICA,                                                     DEBORAH S. HUNT, Clerk
         Plaintiff-Appellee,
                                                        ON APPEAL FROM THE UNITED
 v.
                                                        STATES DISTRICT COURT FOR
                                                        THE WESTERN DISTRICT OF
 ERIC LEON TUCKER, JR.,
                                                        MICHIGAN
         Defendant-Appellant.



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

       CLAY, Circuit Judge. Defendant Eric Tucker pleaded guilty to distributing heroin in

violation of 21 U.S.C. § 841(a)(1) and to possessing a firearm in furtherance of drug trafficking in

violation of 18 U.S.C. § 924(c)(1)(A). Defendant appeals the district court’s judgment imposing

a sentence of eighty-five months. For the reasons set forth below, we AFFIRM the district court’s

judgment.

                                         BACKGROUND

       On September 22, 2017, a criminal complaint was filed against Defendant. A grand jury

returned an indictment against Defendant on five counts.

       Counts One and Two were drug- and firearm-related charges associated with an incident

on July 12, 2017 at a residence in Kalamazoo, Michigan. When officers arrived at the scene,

Defendant was observed running into the residence, which was known as a residence where

narcotics were used and sold. Larry Rogers, the sole individual on the residence’s lease, let officers
No. 18-1380, United States v. Tucker


into the home and Defendant was observed quickly exiting a room in the back of the residence.

Officers stopped Defendant and discovered an outstanding warrant for his arrest. Officers found

5.68 grams of cocaine base (crack cocaine) and a loaded .40 caliber Glock pistol in the room that

Defendant had been observed exiting. Rogers informed police that he allowed Defendant to deal

drugs out of his residence in exchange for a few rocks of crack cocaine per day.

        Counts Three through Five were drug- and firearm-related charges associated with events

that occurred between September 18 and 20, 2017. On September 18, officers responded to a call

that shots had been fired and interviewed a minor victim who reported being shot at while in a

vehicle. The victim identified Defendant as the shooter. On September 20, 2017, Defendant sold

0.15 gram of heroin to an undercover officer and was arrested. Officers found 0.6 gram of crack

cocaine and 0.67 gram of methamphetamine on Defendant’s person. Officers subsequently found

a pistol in Defendant’s car.

        On November 27, 2017, Defendant pleaded guilty to Count Four of illegally distributing

heroin in violation of 21 U.S.C. § 841(a)(1) and Count Five of possessing a firearm in furtherance

of his illegal distribution of heroin in violation of 18 U.S.C. § 924(c)(1)(A); the other counts were

dismissed.

        A Presentence Investigation Report (“PSR”) was prepared, which included the 5.68 grams

of crack cocaine officers found on July 12, 2017 in calculating Defendant’s guideline range on

Count 4, resulting in a range of 15 to 21 months. Defendant objected to the 5.68 grams of crack

cocaine being attributed to him, arguing that there was not sufficient evidence connecting him to

the drugs and that his guideline range for Count 4 should have been 8 to 14 months.

        A sentencing hearing was held where the parties disputed whether the 5.68 grams of crack

cocaine was attributable to Defendant. Agent Theodore Westra of the Bureau of Alcohol,



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No. 18-1380, United States v. Tucker


Tobacco, Firearms & Explosives testified about the events of July 12, 2017, based on his review

of police records. Westra testified to the events described above (which were also related in the

PSR). Westra further testified that after Defendant was arrested and brought to jail, he was

recorded telling someone over the phone, “I just had package. I just trying to hurry back with the

package. So they found it. I think they ended up finding the little slide.” (Id., Page ID# 175–76.)1

Westra testified that Rogers had also informed police that Defendant was the only person who had

been in the room where the crack cocaine and pistol were found.

        The district court held that the government had proved by a preponderance of the evidence

that Defendant possessed the 5.68 grams of crack cocaine. The court based its holding on

“common-sense inferences” arising from Westra’s testimony about Rogers informing police that

Defendant sold drugs at the house, Defendant being seen quickly entering the residence and then

leaving the bedroom where the drugs were found, and the jail call in which Defendant alluded to

a “package” and a “slide” that represented the crack cocaine and the pistol. (Id., Page ID# 185–

88.)

        The district court sentenced Defendant to 15 months on Count 4 and 70 months on Count

5, for a total sentence of 85 months. Defendant timely appealed.

                                          DISCUSSION

                                       Standard of Review

        “[W]hen facing a due-process challenge . . . to a district court’s reliance on statements for

the purposes of finding facts at sentencing, we review the district court’s reliance on such




        1
          Westra testified that “package” is used as slang for an amount of controlled substance and
that “slide” is used as slang for a semiautomatic handgun.

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No. 18-1380, United States v. Tucker


statements—that is, its conclusion that those statements had sufficient indicia of reliability—for

clear error.” United States v. Santana, 723 F. App’x 331, 338 (6th Cir. 2018).

                                              Analysis

        Defendant’s sole claim on appeal is that the district court erred in connecting Defendant

with the crack cocaine found on July 12, 2017 for purposes of sentencing. Defendant argues that

there was not sufficient evidence in the record to support a finding that Defendant possessed the

crack cocaine and that the district court erred in relying on statements made by Rogers. We

disagree.

        The Guidelines state that a district court during sentencing “may consider relevant

information without regard to its admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability to support its probable accuracy.”

United States Sentencing Manual § 6A1.3(a). We have held that the Guidelines, as well as due

process, require evidence presented at sentencing to be supported by at least “some minimum

indicia of reliability.” United States v. Silverman, 976 F.2d 1502, 1506 (6th Cir. 1992) (en banc).

Accordingly, we have held that “hearsay is permissible at a sentencing hearing so long as it has

some minimum indicia of reliability.” United States v. Darwich, 337 F.3d 645, 656 (6th Cir. 2003).

This Court has referred to the sufficient-indicia requirement as “a relatively low hurdle.” United

States v. Moncivais, 492 F.3d 652, 659 (6th Cir. 2007) (quoting United States v. Greene, 71 F.3d

232, 235 (6th Cir. 1995)).

        Defendant argues that this hurdle has not been cleared with respect to Rogers’ statements

because Westra’s testimony was “uncorroborated” and “reflects at least three levels of hearsay”

since Rogers’ statements were given to police, who prepared a written report, which was reviewed




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No. 18-1380, United States v. Tucker


by Westra. (Appellant’s Br. 10–11.) Defendant also argues that “Rogers had a strong incentive

to inculpate [Defendant]” in order to exculpate himself. (Appellant’s Br. 12.)

        Defendant is incorrect that Rogers’ statements were uncorroborated. The district court

properly noted two sources of corroboration for Rogers’ statements connecting Defendant with the

drugs: First, police upon arriving at the residence observed Defendant running into the residence,

and subsequently observed him quickly walking out of the bedroom in which the drugs were found.

These furtive, evasive actions are consistent with trying to hide contraband. Second, Defendant

was recorded on the day of the arrest making statements connecting himself to a “package” (drugs)

and a “slide” (pistol) and stating that “they found” these items. (Id., Page ID# 175–76.) These

statements can reasonably be read as Defendant admitting that the crack cocaine and pistol that the

police found in the bedroom belonged to him.

        Together, this evidence sufficiently corroborates Rogers’ statements that Defendant dealt

drugs out of the residence and that the crack cocaine found in the bedroom belonged to him. The

hearsay testimony presented therefore clears the “relatively low hurdle” of bearing some minimum

indicia of reliability. Moncivais, 492 F.3d at 659 (quoting Greene, 71 F.3d at 235). Thus, the

district court did not clearly err in relying on this testimony to find that the crack cocaine belonged

to Defendant.

        For the reasons stated above, this Court AFFIRMS the district court’s judgment.




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