                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0320n.06

                                             No. 14-5392


                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                           May 01, 2015
UNITED STATES OF AMERICA,                          )                   DEBORAH S. HUNT, Clerk
                                                   )
              Plaintiff-Appellee,                  )       ON APPEAL FROM THE UNITED
                                                   )       STATES DISTRICT COURT FOR
       v.                                          )       THE WESTERN DISTRICT OF
                                                   )       TENNESSEE
                                                   )
ANGEL HERNANDEZ,                                   )
                                                   )
              Defendant-Appellant.                 )



Before: MERRITT and WHITE, Circuit Judges; HOOD, District Judge.*

       HOOD, District Judge.        Defendant-Appellant Angel Hernandez (“Hernandez” or

“Defendant”) was convicted by a jury of possession with intent to distribute more than 50 grams

of methamphetamine in violation of 21 U.S.C. § 841(a). Prior to the trial, the district court

denied Hernandez’s motion in limine in which he sought to exclude statements that he made

during an interview with law enforcement on March 13, 2013, finding that his waiver of his right

to remain silent was knowing, intelligent, and voluntary. The district court sentenced him to 188

months’ imprisonment, over his objection, premised on a United States Sentencing Commission

Guidelines (Sentencing Guidelines) base offense level of 36, which attributed to him a quantity




*
  The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Case No. 14-5392
United States v. Angel Hernandez
of methamphetamine found in the possession of a co-defendant for which Hernandez was

uncharged. Defendant appeals both decisions. For the reasons stated below, we AFFIRM.



                                                 I.


        A federal grand jury charged Defendant Angel Hernandez and his co-defendant, Thomas

Dobbins, with possession with intent to distribute more than fifty grams of actual

methamphetamine, by reason of aiding and abetting, in Count 1 of a superseding indictment on

March 18, 2013. Dobbins was also charged with being a convicted felon in possession of a

firearm in Counts 2 through 6 and a convicted felon in possession of ammunition in Counts 7

through 12. The grand jury charged Hernandez with possession with intent to distribute more

than fifty grams of a mixture and substance containing methamphetamine in Count 13 of the

superseding indictment.     The government moved to dismiss Count 1 of the superseding

indictment as to Hernandez, and the court granted its motion.


        Prior to trial, Defendant filed a motion in limine seeking a ruling on “the voluntariness of

any alleged confession or statements of the Defendant.” [DE 87, Motion in Limine, PageID#

173–74]. The district court considered Hernandez’s motion in limine just prior to the jury trial as

to Count 13, on December 2, 2013. After hearing testimony and argument, the court concluded

that Hernandez’s statements to law enforcement were given voluntarily and should not be

excluded at trial.


        At the hearing, Special Agent Paul Thomas (“Agent Thomas”), the primary investigator

on the case involving Hernandez, testified about the March 12, 2013 execution of the search


                                                -2-
Case No. 14-5392
United States v. Angel Hernandez
warrant and arrest of Defendant in a room at the Deerfield Inn in Humboldt, Tennessee. Thomas

explained that, although he found evidence of drug use in that motel room, Hernandez did not

appear to be under the influence of drugs and was aware of the happenings around him when he

was arrested. Thomas observed that Hernandez was “. . . coherent enough to know when we

were coming in. He just laid down in the floor. I didn’t have to tell him to get in the floor.

When I come [sic] in the room he was already laying in the floor in the prone position.” [DE

127, Transcript of Motion in Limine, Jury Trial, PageID# 325]. Hernandez was then advised of

his Miranda rights. Before Thomas and Special Agent Danny Lewis interviewed Hernandez the

next morning, on March 13, 2013, Thomas again read Hernandez his Miranda rights from a

form, which included a space to sign if Hernandez elected to waive those rights. Thomas

provided the form to Hernandez, who took a pen and signed the form. Approximately eleven

hours had passed from the time that law enforcement arrested Defendant to the time that Thomas

and Lewis sought to interview him. Agent Thomas observed that the defendant appeared able to

tell what was going on and spoke clearly during the interview. He found Hernandez “fairly

cooperative to [sic] the most part. But he was calm, collective [sic], sitting in a chair in the

interview room with us.” [Id. at 316]. Among other things,


              [d]uring the interview, Hernandez admitted to possessing the
              methamphetamine that investigators found in his hotel room.
              Hernandez advised that the methamphetamine had been brought to
              him from Texas for purposes of resale. Hernandez further stated
              that he was the leader of the Surenos 13 gang out of Nashville,
              Jackson, and Memphis. Hernandez indicated that he had
              approximately 3,000 members under him. Hernandez also stated
              that the money he earned from selling methamphetamine was
              going back to Texas and Mexico to fund his gang’s endeavors.

[PSR, ¶25].

                                             -3-
Case No. 14-5392
United States v. Angel Hernandez
       At one point during the interview, Thomas and Lewis asked Hernandez for the passcode

to his telephone, and he had the wherewithal to refuse to provide it to them, although he later

changed his mind and gave it to them. Thomas did not ask Defendant if he was under the

influence and could not recall during the hearing whether Defendant told him that he was still

high from the night before or whether Defendant had said he was not clear headed during the

interview. Thomas also testified that, in his experience, it can be hard to tell how long it will

take a person to become clear-headed or to no longer be under the influence of

methamphetamine after using the drug, ranging from no time at all to as much as twelve hours.

Agent Thomas testified that, had he suspected that Hernandez was under the influence of drugs

or alcohol, he would not have conducted the interview.


       Hernandez testified that, prior to Agent Thomas’s arrival in the hotel room, he had

smoked methamphetamine ice, snorted cocaine, and consumed a 24-pack of beer. He had been

using these drugs for the 30 day period before the day the search was conducted and had not

slept as a result. Despite his claimed intoxicated condition, Hernandez was able to purchase the

beer, rent the room at the Deerfield Inn, and even move his belongings from one room to another

when the motel staff changed his room. Five minutes before he heard the police say, “search

warrant, police,” he had used the slider found in the room to smoke methamphetamine ice and

“did a couple of lines up [his] nose of cocaine.” [DE 127 at PageID# 347–49]. Although he

recalled the police beating on his door and some parts of what happened after agents entered his

room, he testified that he did not recall the agents advising him of his Miranda rights on the

night of his arrest nor did he recall the interview on March 13, 2013, except that agents brought

him in and started asking him questions. He believed that he was high and under the influence at

                                              -4-
Case No. 14-5392
United States v. Angel Hernandez
the time he was interviewed. Hernandez testified that he did not understand what agents were

asking him when they advised him of his Miranda rights because “[he] wasn’t really all there.”

[Id. at 338]. During the interview, he told Agent Thomas that he had been doing ice, cocaine,

and drinking, but he did not tell Thomas that he did not want to be interviewed because he was

high or under the influence. After his arrest and the interview, Hernandez claimed that it took a

while for his memory to return.


       The March 13, 2013, interview was video recorded, and the recording of Hernandez’s

interview was played for the district court. [Id. at 317].


       The district court announced its decision in open court, stating,


               The 13th, according to Mr. Thomas, and according to the recording
               here, the videotape, that Mr. Hernandez was advised of his
               Miranda warnings. That he did, in fact, sign and acknowledge a
               waiver of his rights.

               It’s interesting also that in terms of -- just looking at the Miranda
               warning rights, his signature, which obviously he was somewhat
               under the influence, might have some bearing on the signature. But
               the court has received several matters that Mr. Hernandez has
               submitted to me pro se. And I was just comparing the signatures
               that he sent on that, which I assumed he would have been in a
               fairly lucid position, comparing that to the signature he submitted
               on that Miranda warning, they appear to be absolutely the same.

               There is no indication of a unable to sign or unable to give his
               signature on that occasion, which certainly has some bearing. I'm
               not saying it's the ultimate fact, but certainly has some bearing on
               whether he was lucid or was able to sign his name in a manner that
               was consistent with his signature on those dates, where apparently
               he was in jail and incarcerated when he would not be—when he
               would have been lucid and not under the influence.

               Mr. Thomas further stated that Mr. Hernandez appeared to be able
               to know what was going on. He was calm and collected, able to
                                                 -5-
Case No. 14-5392
United States v. Angel Hernandez
               respond. In my opinion, based upon my review of the tape, it did
               not appear that Mr. Hernandez was fidgety or in any way unable to
               answer the questions or understand the questions. He never said,
               huh or what, or I don't understand, or let me stop. He answered the
               questions about his telephone. In fact, he refused to give the officer
               the code to his telephone. I think he mentioned it later. The
               questions that were asked of him about his bringing the drugs or
               having drugs didn't appear to be at any time to be uncertain or
               unable to answer the questions.

               Mr. Hernandez does state that he had taken both ice and cocaine
               and alcohol all on that evening before they came, before the
               officers came into the room. In fact, according to his testimony, he
               had been on it for about 30 days. Which in that time period you
               would have imagined that Mr. Hernandez could not have even
               been able to do anything if he would have been in that shape.
               However, he was able to obtain a room. He moved his belongings
               from one room to the other, or somebody did. He came into the
               room and apparently was quite lucid about what he recalled from
               the evening before.

               So as Mr. Thomas indicated, a lot of what his impact upon
               somebody's ability to function, even under the influence, is how
               long they've been doing it, the strength, things of that nature. And
               obviously, Mr. Hernandez apparently was someone who was a
               frequent drug user, very frequent drug user, and could—obviously,
               was able to conduct his affairs and his business during that period
               of time even when he was under the influence.

               So based upon what I've seen both in the statements—excuse me,
               in the video tape, the communication between Mr. Thomas and
               Mr. Hernandez, the court finds that Mr. Thomas—I mean, Mr.
               Hernandez was lucid, was able to communicate, and that his
               statements given to Mr. Thomas on that evening were voluntarily
               given following his signature on the Miranda warning rights
               waiver, and I find that they were voluntary, and his consent was
               voluntary as well.

[Id. at 358–61].


       Trial commenced, and the jury ultimately returned a verdict of guilty as to Count 13, the

sole count before it for consideration. A Presentence Report (“PSR”) was prepared by the

                                               -6-
Case No. 14-5392
United States v. Angel Hernandez
United States Probation Office. At the sentencing hearing, the Court considered the PSR, which

set forth the facts concerning Defendant’s arrest in March 2013 and related that the substances

seized from Hernandez’s hotel room on March 12, 2013, contained a total of 216.81 grams of

methamphetamine hydrochloride.


       The PSR also outlined drug activity involving both Hernandez and his co-defendant,

Thomas Dobbins.       In September 2012, Dobbins identified Hernandez as his source of

methamphetamine. Based on the total drug activity, the probation officer calculated the relevant

conduct to be 619.36 grams of methamphetamine hydrochloride and 27.59 grams of

methamphetamine. This included approximately 400 grams of methamphetamine hydrochloride

recovered during the execution of a search warrant at Dobbins’ residence on August 31, 2012,

which had been the subject of Count 1 of the Superseding Indictment, and the remainder was

found during the search of the hotel room where Defendant was arrested. Although Defendant

did not object to most of the facts in the PSR at sentencing, he did object to inclusion of any drug

amounts outside of those found during the execution of the search warrant in March 2013,

including the drugs recovered during the August 2012 search of Dobbins’ residence.


       In light of those objections, Agent Thomas testified at the sentencing hearing regarding

the drug activity outlined in the PSR. He explained how he identified Hernandez as Dobbins’

supplier of methamphetamine:


               Mr. Dobbins told us in the initial interview that he was purchasing
               his methamphetamine ice from a Mexican male in the Crockett
               County area, that he only knew, what he told us, is the name of
               Angel. I did some checking and determined I believed it was Angel
               Hernandez, Jr.


                                               -7-
Case No. 14-5392
United States v. Angel Hernandez
                So in the initial interview with Mr. Dobbins we presented him a
                photo and asked him if he recognized him. He said, that’s Angel,
                that’s the guy I’ve been talking to.

[DE 129, Transcript of Sentencing Hearing, PageID# 507–08].


         In addition, the Government introduced a compact disc containing recordings of

telephone calls monitored by law enforcement and made between Dobbins and Hernandez in

early September 2012, about a week after Dobbins was arrested and decided to cooperate with

law enforcement. Counsel for the Government questioned Agent Thomas about the telephone

calls.


                Q: Agent Thomas, there was [sic] a number of references in the
                phone call. But what would you categorize the general nature of
                that conversation based on your training and experience as a drug
                agent?
                A. Well, based on my training, and also based on the conversation
                I had with Mr. Dobbins after that call was made, he explained the
                conversation that they would have. When—he said when Mr.
                Hernandez was referring to cans of green paint, he would be
                talking about pounds of marijuana. And when he said they would
                be 750, he was saying $750 a pound.
                And when Mr. Dobbins would refer to the ‘other,’ he said he was
                referring to the methamphetamine ice. And Mr. Hernandez, when
                he was asking what the price was going to be on that, he was
                saying 12 or 13. And that would be 12 to $1,300 per ounce.
                And then Mr. Hernandez said they were trying to make a deal
                where if he get rid of 16, it’s 11 or 12. That is 16 ounces of ice, or
                a pound, for 11 or $1,200. So basically you get a break on it if you
                buy it by the pound.
[Id. at 512–13].


         After hearing testimony and argument, the district court issued its ruling regarding

relevant conduct:

                                                -8-
Case No. 14-5392
United States v. Angel Hernandez
               Based again upon the evidence the court has heard, I’m going to
               find that the amount of methamphetamine found in Mr. Dobbins’
               house, and based on his testimony, or statements, rather, through
               the agent, and the—based upon the recorded telephone
               conversation the court has heard, I’m going to find that the 400
               grams of methamphetamine was, in fact, relevant conduct, and
               should be considered in terms of the assessment of the guideline
               range under Paragraph 32 of the presentence report.

[Id. at 533–34].


       The district court concluded that the United States had demonstrated by a preponderance

of the evidence that 619.36 grams of methamphetamine hydrochloride and 27.59 grams of

methamphetamine were attributable to Hernandez and adopted the PSR’s recommended advisory

guideline range of 188 to 235 months. Hernandez was sentenced to 188 months’ imprisonment.

Judgment was entered on March 26, 2014, and an amended judgment correcting the criminal

case number was filed on April 1, 2014. Hernandez timely appealed the court’s decisions on the

issues addressed above.


                                              II.


       Hernandez argues that the district court erred when it permitted the use at trial of

statements that he made during his interview with law enforcement agents after he had been

advised of his Miranda rights and signed a waiver of those rights on the morning of March 13,

2013. He maintains that his waiver and his statements could not have been made knowingly,

intelligently, and voluntarily because he was so heavily intoxicated as the result of heavy drug

and alcohol consumption on the evening of his arrest, more than twelve hours before the

interviews were made. He intimates that Agent Thomas coerced him, taking advantage of his



                                             -9-
Case No. 14-5392
United States v. Angel Hernandez
intoxicated state. We conclude that the district court did not err when it denied Hernandez’s

motion in limine and permitted the statements to be used at trial.


       When reviewing a district court’s decision on a motion to suppress evidence, this Court

reviews findings of fact for clear error and conclusions of law de novo. United States v. Torres-

Ramos, 536 F.3d 542, 549 (6th Cir. 2008) (citing United States v. Dillard, 438 F.3d 675, 680

(6th Cir. 2006)).     When determining whether a waiver of rights was made knowingly,

intelligently, and voluntarily, the trial court’s underlying factual findings are reviewed for clear

error while the legal conclusion is reviewed de novo. United States v. Wrice, 954 F.2d 406, 410–

11 (6th Cir. 1992) (citing United States v. Murphy, 763 F.2d 202, 206 (6th Cir. 1985)). In this

instance, the evidence is reviewed in a light most favorable to the Government because the

district court denied Hernandez’s motion. Torres-Ramos, 536 F.3d at 542 (citing United States

v. Long, 464 F.3d 569, 572 (6th Cir. 2006)).


       The Fifth Amendment privilege against compulsory self-incrimination bars the admission

of involuntary confessions. See Colorado v. Connelly, 479 U.S. 157, 163–64 (1986). “[T]he

prosecution may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436,

444 (1966). “Prior to any questioning, the person must be warned that he has a right to remain

silent, that any statement he does make may be used as evidence against him, and that the has a

right to the presence of an attorney, either retained or appointed.” Id. A defendant’s waiver of

his Miranda rights is considered valid if it is voluntary, knowing, and intelligent. Id. A

confession is involuntary if, in light of the totality of the circumstances, “the will of the accused
                                               - 10 -
Case No. 14-5392
United States v. Angel Hernandez
has been overwhelmed by official pressure.” Wrice, 954 F.2d at 411 (citing Murphy, 763 F.2d at

205). “‘When a defendant claims that a confession was coerced, the [G]overnment bears the

burden of proving by a preponderance of the evidence that the confession was in fact

voluntary.’” United States v. Johnson, 351 F.3d 254, 260 (6th Cir. 2003) (quoting United States

v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999)).


       A confession is involuntary due to police coercion if (i) the police activity was

objectively coercive; (ii) the coercion in question was sufficient to overbear the defendant’s will;

(iii) and the alleged police misconduct was the crucial motivating factor in the defendant’s

decision to offer the statement. Mahan, 190 F.3d at 422 (citing McCall v. Dutton, 863 F.2d 454,

459 (6th Cir. 1988)). In assessing whether the alleged coercion was sufficient to overcome the

defendant’s will, “[r]elevant factors may include the defendant’s age, education and intelligence;

whether the defendant has been informed of his constitutional rights; the length and extent of the

questioning; and the use of physical punishment, such as the deprivation of food or sleep.”

Mahan, 190 F.3d at 422-23 (citing Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th Cir. 1994)).

Intoxication is another factor for the court to consider. Like other circuits, this court considers

the impact of drugs and alcohol on the voluntariness of a confession on a “case-by-case basis and

in view of other circumstances at play.” United States v. Montgomery, 721 F.3d 568, 572 (6th

Cir. 2010) (collecting cases); see, e.g., United States v. Fletcher, 295 F. App’x 749, 757 (6th Cir.

2008) (upholding confession as voluntary based on officers’ testimony that Appellant “did not

seem impaired, was not swaying or unsteady, had no trouble signing the consent form, and

appeared to be coherent.”); Abela v. Martin, 380 F.3d 915, 928 (6th Cir. 2004) (holding that a

defendant cannot show that his confession should have been suppressed merely because he

                                                - 11 -
Case No. 14-5392
United States v. Angel Hernandez
claimed that he drank alcohol the night before his arrest), abrogated on other grounds by

Guilmette v. Howes, 624 F.3d 286 (2010); Garcia-Donantes v. Warren, 769 F. Supp. 2d 1092,

1110 (E.D. Mich. 2011) (holding that, because there was no evidence that petitioner was still

intoxicated at the time he spoke with police or any further evidence of coercion, petitioner was

not entitled to writ of habeas corpus because he had not established his conviction was obtained

with statements that were involuntary).


       On the evidence before the district court, we cannot conclude that law enforcement’s

activity in obtaining the waiver or conducting the interview was objectively coercive. First, we

conclude that the district court’s factual findings were not clearly erroneous. Looking at the

evidence in the light most favorable to the Government, there is sufficient evidence from which

the district court could conclude that Hernandez was lucid and able to communicate and not so

obviously intoxicated as to render him more susceptible to official pressure than a person who

was not intoxicated, at least from the perspective of the law enforcement agent who was making

the decision about whether to proceed with the interview.


       Agent Thomas recalled that Hernandez was calm and collected during the interview and

felt that Hernandez was able to respond to questions in a manner which did not suggest to him

that Hernandez was intoxicated. The district court viewed the video recording of the interview

and observed that Hernandez was neither “fidgety” nor unable to understand or answer questions

posed to him by law enforcement agents and that he did not appear uncertain during the course

of the interview. Having observed Hernandez’s testimony and having heard all of the evidence,

the district court’s conclusion that Hernandez’s function was not as impacted by his use of drugs

and alcohol as he claimed was properly supported by the evidence available. The district court’s
                                             - 12 -
Case No. 14-5392
United States v. Angel Hernandez
decision was supported by Hernandez’s recollection of the evening of his arrest, his ability to

communicate during the interview, and his ability to conduct his affairs and his business in that

period of time even if he was under the influence. The district court’s factual conclusion was

further supported, however slightly, by its observation about the similarities between

Hernandez’s signature on the waiver form at the time of the interview when he claimed to be

intoxicated and on pro se materials presented to the court at times when, presumably, Hernandez

was not intoxicated. Ultimately, we are not firmly persuaded that a mistake was committed and

conclude that the district court’s factual findings were not clearly erroneous.


       It follows, considering the matter de novo, that the district court did not err when it

concluded that Defendant’s confession was voluntary as a matter of law. There is no evidence of

objectively coercive activity on the part of law enforcement and, thus, we conclude that the

United States bore its burden of demonstrating by a preponderance of the evidence that

Defendant’s waiver of rights and his responses to law enforcement questions were made

knowingly, intelligently, and voluntarily and that the statements made during the interview were

voluntary. See Johnson, 351 F.3d at 260.


                                                III.


       Defendant also challenges the district court’s application of the Sentencing Guidelines on

the grounds that there was not sufficient evidence to find that he was responsible for the 400

grams of methamphetamine found in co-defendant Dobbins’ home and, thus, susceptible to

sentencing using a base offense level of 36 under U.S.S.G. §2D1.1(a)(5) and (c)(2). Specifically,

he argues that the district court’s conclusion that the 400 grams of methamphetamine seized from


                                               - 13 -
Case No. 14-5392
United States v. Angel Hernandez
Dobbins’ home was attributable to him for the purposes of calculating his guidelines range is not

supported by a preponderance of the evidence because there was no reference to prior

transactions between Defendant and Dobbins during the five controlled phone calls between

them nor was the quantity of methamphetamine found at and seized from Dobbins home

mentioned during the calls. He also argues that Agent Thomas’s testimony that the word “other”

was a reference to methamphetamine was inadequate to support the conclusion that Defendant

had methamphetamine to sell at any time because the word itself was not specific enough to

identify the substance discussed as methamphetamine and could have had any number of

meanings. The United States argues that the evidence obtained during the controlled calls, when

coupled with Dobbins’ statement to law enforcement that Defendant was his source for the

methamphetamine, established by a preponderance of the evidence that Hernandez was

accountable for the amount of methamphetamine recovered from Dobbins’ residence as well as

that recovered from Hernandez’s motel room and, thus, the district court did not err. For the

reasons which follow, we agree.


       We review a district court’s calculation of an advisory sentencing guidelines range as part

of its “obligation to determine whether the district court imposed a sentence that is procedurally

unreasonable.” See United States v. Bullock, 526 F.3d 312, 315 (6th Cir. 2008).


               In reviewing a district court’s application of the Sentencing
               Guidelines, this Court will “accept the findings of fact of the
               district court unless they are clearly erroneous and [will] give due
               deference to the district court's application of the Guidelines to the
               facts.” United States v. Williams, 355 F.3d 893, 897–98 (6th Cir.
               2003); 18 U.S.C. § 3742(e). A factual finding is clearly erroneous
               “when the reviewing court on the entire evidence is left with the
               definite and firm conviction that a mistake has been committed.”
               Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006). We review a
                                               - 14 -
Case No. 14-5392
United States v. Angel Hernandez
               district court’s legal conclusions regarding the Sentencing
               Guidelines de novo. United States v. Latouf, 132 F.3d 320, 331
               (6th Cir. 1997).

United States v. Moon, 513 F.3d 527, 539–40 (6th Cir. 2008). The calculation of the proper drug

amount attributable to Hernandez is a factual finding reviewed for clear error. See United States

v. Walton, 908 F.2d 1289, 1300–01 (6th Cir. 1990) (citing United States v. Barrett, 890 F.2d 855,

867 (6th Cir. 1989)). “The district court may rely on any competent evidence in the record;

however, the district court's findings must have ‘some minimum indicium of reliability beyond

mere allegation.’” United States v. Hough, 276 F.3d 884, 891 (6th Cir. 2002) (quoting United

States v. Ward, 68 F.3d 146, 149 (6th Cir.1995)). With regard to the drug amount attributable to

Hernandez at sentencing, as long as “the district court interprets the evidence in a manner

consistent with the record,” we will uphold the decision “even if we would have reached the

opposite conclusion.” See United States v. Darwich, 337 F.3d 645, 663 (6th Cir. 2003) (citing

Anderson v. City of Bessemer, 470 U.S. 564, 573–74 (1985)); United States v. Worley, 193 F.3d

380, 384 (6th Cir. 1999) (stating that “‘[w]here there are two permissible views of the evidence’

the district court's conclusions ‘cannot be clearly erroneous.’”) (quoting Anderson, 470 U.S. at

574).


        In calculating the appropriate base offense level, the sentencing court must consider

quantities of drugs not specified in the counts of conviction that were part of the same conduct or

common plan or scheme. United States v. Smith, 245 F.3d 538, 544 (6th Cir. 2001); U.S.S.G.

§1B1.3(a)(1)(A). This “[r]elevant conduct need not be charged, nor must it otherwise even be

within the jurisdiction of the sentencing court.” United States v. Gill, 348 F.3d 146, 151 (6th Cir.

2003). The government has the burden of proving that a defendant is accountable for specific

                                               - 15 -
Case No. 14-5392
United States v. Angel Hernandez
conduct by a preponderance of the evidence. United States v. Orlando, 281 F.3d 586, 600 (6th

Cir. 2002) (citing United States v. Bahhur, 200 F.3d 916, 924 (6th Cir. 2000)).


       On the facts before us, the district court’s opinion is consistent with the evidence of

record as a whole. Although Dobbins was the only person arrested on August 30, 2012, at the

time the methamphetamine was found in his home, he told investigators that his source for

methamphetamine was a person named “Angel.” His statement prompted Agent Thomas to

show him a photograph of Hernandez, who Dobbins then identified as the person he knew as

“Angel.” Dobbins then made a series of controlled phone calls to “Angel,” whose voice Agent

Thomas would testify was that of Hernandez, in September 2012. Even though, as Defendant

points out, Dobbins and Hernandez did not discuss the drugs found in Dobbins’ house on August

30, 2012, during the controlled phone calls and the fact that they were familiar with one another

does not—alone—mean that Hernandez had any involvement with the methamphetamine seized

from Dobbins’ residence, there is other evidence from which the district court could conclude

that the 400 grams of methamphetamine was provided to Dobbins by Hernandez: Dobbins’

statement to Agent Thomas.


       On the evidence before the district court, specifically the testimony of Agent Thomas

concerning information gained through Dobbins’ cooperation and Agent Thomas’ corroboration

of some aspects of that information, we conclude that the court’s findings below were supported

by “competent evidence in the record,” and had much more than a “minimum indicium of

reliability.” See Hough, 276 F.3d at 891. Although Hernandez argues that the controlled phone

calls between himself and Dobbins could have “various interpretations” and the word

“other…could involve any number of meanings,” [Brief of Hernandez at 33], he makes no effort
                                              - 16 -
Case No. 14-5392
United States v. Angel Hernandez
to explain why the trial court’s conclusion is clearly erroneous. United States v. Cooke, 915 F.2d

250, 252 (6th Cir. 1990) (“An effort must be made to demonstrate why the trial court’s

conclusion is clearly erroneous. On appeal all we have is the cold record, and we accord

considerable deference to the credibility findings of the trial court.”). Reviewing the evidence in

the light most likely to support the district court’s decision, we conclude that the district court’s

finding concerning the amount of methamphetamine attributable to Hernandez for the purposes

of sentencing was not clearly erroneous. See Moon, 513 F.3d at 539–40; Worley, 193 F.3d at

384. We are not left with a definite and firm conviction that a mistake has been committed.

Moon, 513 F.3d at 539-40. Further, giving due deference to the district court's application of the

Guidelines to the facts, we conclude that the district court properly included the 400 grams of

methamphetamine found in Dobbins’ home when establishing the applicable offense level for

Hernandez and, thus, and imposed a sentence that is procedurally reasonable. See Bullock, 526

F.3d at 315; Williams, 355 F.3d at 897-98; 18 U.S.C. § 3742(e).


                                                IV.


       For all of the reasons stated above, we AFFIRM the judgment of the district court.




                                               - 17 -
