                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 09-16310         ELEVENTH CIRCUIT
                                                     JUNE 7, 2010
                        Non-Argument Calendar
                      ________________________        JOHN LEY
                                                       CLERK

                  D. C. Docket No. 08-00315-CR-11-4

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                 versus

MICHAEL ANTHONY DAVIS,
a.k.a. Mike,

                                                       Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                    _________________________

                             (June 7, 2010)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Michael Anthony Davis appeals his 140-month sentence imposed for

conspiring to possess with intent to distribute, and to distribute, a quantity of cocaine

base and a quantity of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1)

and 846. Davis argues that: (1) the district court clearly erred by increasing his

criminal history score based on a 91-day prison term that he served upon the

revocation of his probation for a prior conviction of driving with a suspended license,

and that his due process rights were violated at this probation revocation hearing; and

(2) the district court clearly erred when calculating the drug quantity attributable to

him and his base offense level, based on the incredible testimony of the government’s

witness, Telly Petty. After careful review, we affirm.

      “We accept the district court’s factual findings at sentencing unless clearly

erroneous,” and review the district court’s application of the Sentencing Guidelines

to the facts de novo. United States v. Caraballo, 595 F.3d 1214, 1230 (11th Cir.

2010). The district court’s determination of drug quantity is a finding of fact that we

review for clear error. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.

2005). “When a defendant objects to a factual finding that is used in calculating his

guideline sentence, such as drug amount, the government bears the burden of

establishing the disputed fact by a preponderance of the evidence.” Id.




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      First, we reject Davis’ claim that the district court clearly erred by increasing

his criminal history score.      Section 4A1.2(c) provides that all felonies and

misdemeanors, unless excluded under subsections (c)(1) or (c)(2), are counted as part

of a defendant’s criminal history. U.S.S.G. § 4A1.2(c). Subsection (c)(1) excludes

a number of misdemeanor offenses, including driving with a suspended license,

unless “the sentence [imposed] was a term of probation of more than one year or a

term of imprisonment of at least thirty days.” Id. § 4A1.2(c)(1). When a defendant

is sentenced to probation, but that probation is subsequently revoked, § 4A1.2(k)

instructs the court to “add the original term of imprisonment to any term of

imprisonment imposed upon revocation” when calculating criminal history points

under § 4A1.1(a), (b), or (c), as applicable. Id. § 4A1.2(k). Section 4A1.1(b)

provides that 2 points are to be added for each prior sentence of imprisonment of at

least 60 days. Id. § 4A1.1(b).

      With respect to the instant sentencing proceeding, the Sentencing Guidelines

“do not confer upon the defendant any right to attack collaterally a prior conviction

or sentence beyond any such rights otherwise recognized in law (e.g., 21 U.S.C. § 851

expressly provides that a defendant may collaterally attack certain prior convictions).”

Id. § 4A1.2, comment. (n.6). Under § 851, a person, who claims that a prior

conviction, alleged in an information filed by the government as a basis for a

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sentencing enhancement, was obtained in violation of the Constitution, may challenge

that conviction and has the burden of proof by a preponderance of the evidence on

any issue of fact raised in that response. 21 U.S.C. § 851(a), (c).

      We have held that “[c]ollateral attacks on prior convictions are allowed in

federal sentencing proceedings in one narrow circumstance only: when the conviction

was obtained in violation of the defendant’s right to counsel.” United States v.

Phillips, 120 F.3d 227, 231 (11th Cir. 1997) (citing United States v. Roman, 989 F.2d

1117, 1120 (11th Cir. 1993) (en banc) (holding that unless a prior conviction is

“presumptively void,” it is not open to collateral attack in a federal sentencing

proceeding)). In sentencing a defendant, the district court cannot ignore or discount

a prior conviction that has not been invalidated in a prior proceeding unless there was

an unwaived absence of counsel in the proceedings that resulted in the prior

conviction. Id. (citing U.S.S.G. § 4A1.2, comment. (n.6)).

      Here, Davis has not previously challenged the constitutionality of his probation

revocation pursuant to the procedures set forth in § 851. Moreover, Davis does not

argue on appeal that he was either improperly denied: (1) notice of the probation

revocation proceeding; or (2) the right to counsel at his probation revocation hearing.

Instead, Davis’ argument focuses on the following facts: (1) the transcript of the

revocation hearing does not show that he was present in court; and (2) the evidence

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presented at that hearing was insufficient to support the revocation of his probation.

Neither of these claims entitles Davis to collateral review by this Court of the

constitutionality of the probation revocation hearing. See id.; U.S.S.G. § 4A1.2,

comment. (n.6).      Accordingly, because Davis fails to argue that he was

unconstitutionally denied the right to counsel at the probation revocation hearing, or

that his probation revocation previously was held unconstitutional in a proceeding

conducted pursuant to § 851, the district court did not err by adding 2 criminal history

points for his 91 days’ imprisonment served upon revocation of his probation for his

conviction for driving with a suspended license.

      Next, we find no merit in Davis’ claim that the district court clearly erred in

relying on the incredible testimony of the government’s witness, Petty, in determining

the drug quantity attributable to Davis and his base offense level. Sentencing may be

based on fair, accurate, and conservative estimates of the drug quantity attributable

to a defendant. United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998).

However, sentencing cannot be based on calculations of drug quantities that are

merely speculative. Id.; see also United States v. Brazel, 102 F.3d 1120, 1160-61

(11th Cir. 1997) (stating that the government’s extrapolation from the evidence to

increase the drug quantity was impermissibly based on speculations that two isolated

deliveries were representative of weekly deliveries during the conspiracy period).

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      Calculation of a defendant’s base offense level for a drug conspiracy under

U.S.S.G. § 2D1.1 “requires a determination of the quantity of illegal drugs properly

attributable to a defendant. This, in turn, requires an assessment of the conduct of

others for which a defendant is accountable under section 1B1.3.” United States v.

Reese, 67 F.3d 902, 905 (11th Cir. 1995) (quotation omitted). “For sentencing

purposes a member of a drug conspiracy is liable for his own acts and the acts of

others in furtherance of the activity that the defendant agreed to undertake and that

are reasonably foreseeable in connection with that activity.” United States v. Ismond,

993 F.2d 1498, 1499 (11th Cir. 1993) (citing U.S.S.G. § 1B1.3(a)(1)). Even if the

district court does not make individualized findings, a defendant’s sentence may be

upheld if the record supports the amount of drugs attributed to the defendant. See id.

      Section 1B1.3(a)(1) of the Guidelines provides that, to determine the base level

for a charged offense, the district court shall consider:

      all acts and omissions committed, aided, abetted, counseled,
      commanded, induced, procured, or willfully caused by the defendant;
      and in the case of a jointly undertaken criminal activity (a criminal plan,
      scheme, endeavor, or enterprise undertaken by the defendant in concert
      with others, whether or not charged as a conspiracy), all reasonably
      foreseeable acts and omissions of others in furtherance of the jointly
      undertaken criminal activity. . . .

U.S.S.G. § 1B1.3(a)(1)(A)-(B). “We afford substantial deference to the factfinder,

in this case, the district court, in reaching credibility determinations with respect to

                                           6
witness testimony.” United States v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006)

(quotation omitted). “Where the factfinding resolves a swearing match of witnesses,

the resolution will almost never be clear error.” Rodriguez, 398 F.3d at 1296.

      Under the Sentencing Guidelines, a defendant receives a base offense level of

32 when he is accountable for at least 5 kilograms, but less than 15 kilograms, of

cocaine hydrochloride. U.S.S.G. § 2D1.1(c)(4). Application Note 12 to § 2D1.1

provides that “[t]ypes and quantities of drugs not specified in the count of conviction

may be considered in determining the offense level.” Id. § 2D1.1, comment. (n.12).

In determining the appropriate offense level, Note 12 instructs the district court to

approximate the quantity of the controlled substance when “there is no drug seizure

or the amount seized does not reflect the scale of the offense,” based, in part, on the

agreed-upon quantity of the substance to be sold. Id.

      Here, the evidence established by a preponderance that Davis was responsible

for at least five kilograms of cocaine. At the sentencing hearing, Petty testified as to

several specific instances in which he sold Davis at least eight kilograms of cocaine:

(1) Petty recalled selling Davis one-quarter kilogram of cocaine on two separate

occasions at Davis’ girlfriend’s house in June and July of 2008, and Davis admitted

to these purchases; (2) during that same time frame, Petty also recalled selling Davis

one-half kilogram of cocaine on two occasions, and one kilogram of cocaine on

                                           7
another occasion, and Davis admitted to purchasing one-half kilogram of cocaine in

a Kroger grocery parking lot in July 2008; (3) Petty agreed to sell one kilogram out

of a three-kilogram shipment to Davis and a codefendant, and after this shipment was

seized, Davis gave him money in advance to purchase two kilograms of cocaine; and

(4) Petty recalled one more transaction in which Davis bought two kilograms of

cocaine at the codefendant’s house. Davis also admitted to purchasing four and

one-half ounces of cocaine from Petty on two separate occasions. Thus, the record

reflects that Davis purchased or conspired to purchase well over five kilograms of

cocaine. See Ismond, 993 F.2d at 1499.

      The district court heard Petty’s testimony on direct examination that he had an

incentive to testify in the hopes of a more lenient sentence, and Petty admitted to his

prior criminal history. Moreover, the district court heard Petty’s responses on

cross-examination as to inconsistencies between his direct examination testimony and

his statements to DEA agents after his arrest regarding: (1) whom he bought cocaine

from; and (2) whether Davis ever gave him money in advance to buy cocaine. The

district court considered: (1) the agent’s testimony on cross-examination that Petty’s

testimony “seemed pretty accurate” compared to his prior statements; and (2) Davis’

counsel’s inquiry as to the discrepancies regarding Petty’s testimony as to who

supplied the cocaine. The district court also heard Davis’ testimony regarding the

                                          8
drug quantity with which he was involved, and the court was within its purview as

the fact finder to conclude that Petty’s testimony was more credible than Davis’

testimony. See Rodriguez, 398 F.3d at 1296.

      We owe substantial deference to the district court’s finding that Petty’s and the

agent’s testimony was more credible than Davis’ statement as to the drug quantity

with which Davis was involved. See Pham, 463 F.3d at 1244; Rodriguez, 398 F.3d

at 1296. Giving substantial deference to the district court’s attribution of at least five

kilograms of cocaine to Davis, the record supports this finding by a preponderance

of the evidence, and accordingly, the court did not clearly err in assigning to him a

base offense level of 32, pursuant to § 2D1.1(c)(4). See Pham, 463 F.3d at1244;

Ismond, 993 F.2d at 1499.

      AFFIRMED.




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