                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0059n.06
                                Filed: January 27, 2009

                                      Nos. 06-5790 / 06-5804

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                   )
       Plaintiff - Appellee,                )
v.                                          )
NAKEITHA JACKSON,                           )
       Defendant - Appellant.               )        ON APPEAL FROM THE UNITED
                                            )        STATES DISTRICT COURT FOR THE
                                                     WESTERN DISTRICT OF KENTUCKY
                                            )        AT BOWLING GREEN
UNITED STATES OF AMERICA,                   )
       Plaintiff - Appellee,                )
v.                                          )
MARLOS HINES,                               )
       Defendant - Appellant.               )


BEFORE: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS,* District Judge


       EDMUNDS, District Judge. Nakeitha Jackson (“Jackson”) and Marlos Hines (“Hines”)

were convicted by a jury of conspiracy to possess with intent to distribute and possession with intent

to distribute crack cocaine, in violation of 21 U.S.C. §§ 841 and 846. Jackson was sentenced to 360

months of imprisonment, and Hines was sentenced to 97 months of imprisonment. On direct appeal,

we affirmed Jackson’s and Hines’ convictions, but remanded for resentencing in light of United



       *
       The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District
of Michigan, sitting by designation.
States v. Booker, 543 U.S. 220 (2005). See United States v. Washington, 166 F. App’x 823 (6th Cir.

2006).

         On remand, the district court once again sentenced Jackson to 360 months of imprisonment

and Hines to 97 months of imprisonment. Jackson and Hines now appeal these sentences, arguing

that their sentences were improperly enhanced based on judicially found facts contrary to those found

by the jury beyond a reasonable doubt, and further arguing that, even if properly considered, those

judicially found facts were clearly erroneous.

         Jackson’s and Hines’ sentences are AFFIRMED. The district court’s factual findings do not

increase Jackson’s or Hines’ sentences beyond the statutory maximums for the crimes on which the

jury convicted them, and the district court’s findings are not clearly erroneous.

                                                 I.

         The following facts are from this Court’s earlier opinion addressing Jackson’s and Hines’

convictions and sentences. In April 2002, Bureau of Alcohol, Tobacco and Firearms (“ATF”)

Special Agent David Hayes received information about drug-dealing activity in the Russellville,

Kentucky area. Agent Hayes and three confidential informants began an investigation lasting from

approximately May 20, 2002 until November 2, 2002 and involving numerous controlled buys of

crack and powder cocaine. The facts as to Jackson are set out first.

         A.     Nakeitha Jackson

         In the course of investigating another individual, Marcel Edwards, the ATF became aware

of Jackson’s drug-dealing activities.




                                                 2
On September 6, 2002, Confidential Informant Chris Bratcher purchased an “eight
ball”1 of crack cocaine from one Douglas Steven Johnson. Jackson sold this eight
ball to Johnson, and Johnson in turn sold it to Bratcher. On September 8, 2002,
Confidential Informant Bratcher purchased approximately 5 grams of crack from
Johnson and Jackson. Both exchanges were tape-recorded. Agent Hayes observed
both of these interactions from afar. During the September transaction, Agent Hayes
observed a gold Jeep Cherokee, the kind of automobile Jackson drove, pull out of the
driveway. Agent Hayes saw an individual he later identified as Jackson during the
September 8 sale.


Jackson was arrested on January 10, 2003. Jackson signed a waiver of his right to
remain silent and his right to counsel and made a tape-recorded statement to the
police. In this statement, Jackson indicated that he had a contact in Nashville who
would supply him with approximately 9 ounces of cocaine approximately once or
twice a week. He also indicated that Marlos Hines would occasionally buy
approximately 1 ounce of cocaine from him at a time. Jackson claimed that Hines
had purchased cocaine from him one week prior to the interview. Jackson further
indicated that Edwards would buy cocaine from him on an occasional basis. Jackson
stated that the most Edwards ever purchased from him was 1 ounce. Jackson noted
that Edwards often had a larger quantity of cocaine in his possession than the amount
purchased from Jackson, and that Edwards had other sources because Edwards felt
that Jackson’s prices were too high. Jackson also indicated that he and Edwards did
not get along particularly well due to a “falling out” in their past.


On January 8, 2003, a grand jury in the Western District of Kentucky returned a
Superseding Indictment against Marcel Edwards, Marlos Hines, Nakeitha Jackson,
Douglas Steven Johnson, Calvin Merrell and Tonya Washington. Edwards, Johnson,
and Merrell pled guilty to the charges against them contained in the indictment.


The grand jury charged Jackson in Count one with conspiring, between April 28,
2002 and November 2, 2002, to aid and abet in the knowing and intentional
possession with intent to distribute and distribution of a mixture or substance
containing cocaine base, commonly known as crack cocaine, in violation of 18
U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Count five charged Jackson with knowingly
and intentionally possessing with intent to distribute and distribution of a mixture or
substance containing cocaine base on September 6, 2002, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(c). Count six charged Jackson with knowingly and intentionally
possessing with intent to distribute and distributing cocaine base on September 8,
2002, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii).

1
    An “eight ball” of crack cocaine is approximately 3.5 grams.

                                           3
       At trial, Marcel Edwards and Douglas Steven Johnson, two charged co-conspirators;
       Tommy Stewart, John Stewart and Chris Bratcher, three confidential informants
       involved in this case; and Special Agent David Hayes testified regarding Jackson’s
       involvement in drug dealing. . . . The jury returned a guilty verdict for Jackson on
       Counts one, five, and six of the indictment. The jury further returned a special
       verdict, finding beyond a reasonable doubt that Jackson possessed 5 or more grams
       of cocaine base in connection with Count one of the indictment. . . .


       After a sentencing hearing conducted on November 12, 2003, the district court
       determined that Jackson had possessed 1.5 kilograms or more of cocaine base,
       thereby making his offense level thirty-eight according to the Drug Quantity Table
       set forth in U.S.S.G. § 2D1.1(c)(1). The district court then applied a four level
       enhancement to Jackson’s sentence pursuant to U.S.S.G. § 3B1.1 over defense
       counsel’s objection based on a finding that Jackson was “at least one of the leaders
       of this criminal activity and . . . there were five or more participants involved in it.”
       (JA 480). . . . Jackson’s final offense level was a forty-two and his criminal history
       category was six, placing him in a sentencing range of 360 months to life
       imprisonment. The district court then sentenced Jackson to 360 months
       imprisonment. . . .


166 F. App’x at 825-27.

       B.      Marlos Hines

       The following discussion of the facts concerning Hines’ conviction and first sentencing also

come from this Court’s earlier opinion.

       Marlos Hines, Edwards’ half-brother, was also identified during the investigation as
       an individual involved in dealing cocaine. On May 22, 2002, Hines delivered .46
       grams of crack cocaine to confidential informant Tommy Stewart, on Edwards’
       behalf. On May 31, 2002, Hines delivered 1.15 grams of crack cocaine to the
       confidential informant Stewart again on Edwards’ behalf. A confidential informant
       also spoke with Hines on the telephone on July 3, 2002, regarding a shortage in the
       amount of crack cocaine purchased from Edwards earlier in the day.


       On January 8, 2003, the grand jury charged Hines in Count one with conspiring
       between April 28, 2002 and November 2, 2002 to aid and abet in the knowing and
       intentional possession with intent distribute and distribution of a mixture or
       substance containing cocaine base, in violation of 18 U.S.C. § 2 and 18 U.S.C. §


                                                  4
       841(a)(1). Count three charged Hines with knowingly and intentionally possessing
       with intent to distribute and distribution of a mixture or substance containing cocaine
       base on May 31, 2002, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C).


       The jury returned a guilty verdict for Hines on Counts one and three of the
       superseding indictment. The jury also returned a special verdict in which it did not
       find beyond a reasonable doubt that Hines possessed 5 or more grams of cocaine base
       in connection with Count one. The district court subsequently determined that
       approximately 34.72 grams of crack cocaine and 29 grams of powder cocaine were
       attributable to Hines, yielding a base offense level of thirty according to the Drug
       Quantity Table set forth in U.S.S.G. § 2D1.1(c)(1). Hines sought a two level
       reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility, which the
       district court rejected. Hines’ criminal history category was one, placing him in a
       sentencing range of 97 to 121 months imprisonment. The district court imposed a
       sentence of 97 months.


Washington, 166 F. App’x at 827.

       C.      Direct Appeal and Remand in Light of Booker

       Jackson and Hines both appealed their convictions and sentences. After affirming their

convictions and the district court’s denial of their motions for a downward adjustment pursuant to

U.S.S.G. § 3E1.1 for acceptance of responsibility, we remanded for resentencing in light of Booker.

Washington, 166 F. App’x at 830, 832-34.

       D.      Resentencing on Remand

       On remand, at their May 26, 2006 resentencings, the district court rejected Jackson’s and

Hines’ arguments that the special jury verdict, this Court’s remand, and Booker precluded it from

finding facts that raised Jackson’s offense level under the Sentencing Guidelines above twenty-six

and that raised Hines’ offense level under the Sentencing Guidelines above twenty-four. The district

court explained that this Court had vacated Jackson’s and Hines’ sentences in Washington not

because the district court had erred in finding facts that it then used to calculate the appropriate

                                                 5
Guidelines range but rather because, pre-Booker, the district court had treated the Guidelines as

mandatory as opposed to advisory. Thus, the district court concluded that: (1) post-Booker, the

special verdict meant only that the district court’s sentence must not exceed the statutory maximum;

and (2) this Court’s decision in Washington did not preclude it from finding facts that placed

Jackson’s sentence for count one of the indictment within the statutory range of 10 years to life

imprisonment and placed Hines’ sentence within the statutory range of zero to twenty years.

       The district court then resentenced Jackson and Hines, relying on the same evidence used to

support its fact-finding about drug quantity and Jackson’s leadership role at their original

sentencings. It once again calculated the Guidelines range for Jackson to be 360 months to life, and

once again sentenced him to 360 months’ imprisonment. The district court once again calculated

the Guidelines range for Hines to be 97 months to 121 months, and once again sentenced him to 97

months’ imprisonment.

       Jackson and Hines now appeal their most recent sentences.

                                                 II.

       “Under this Circuit’s post-Booker protocol, the sentencing court must: (1) correctly calculate

the advisory guideline sentencing range, (2) consider the other [18 U.S.C.] § 3553(a) factors, and (3)

impose a sentence that is sufficient but not greater than necessary to comply with the purposes of §

3553(a)(2).” United States v. Lanesky, 494 F.3d 558, 561 (6th Cir. 2007). Sentences imposed by

the district court are reviewed by this Court for reasonableness. See United States v. Rita, 551 U.S.

338, ___, 127 S. Ct. 2456, 2459, 2465 (2007). “[A] sentence is unreasonable when the district judge

fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed


                                                  6
in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence

without such required consideration.” Lanesky, 494 F.3d at 561 (quoting United States v. Webb, 403

F.3d 373, 383 (6th Cir. 2005)).

       “[T]he district court’s determination of the quantity of drugs attributable to a defendant for

sentencing purposes” is reviewed for clear error.2 United States v. Jackson, 470 F.3d 299, 310 (6th

Cir. 2006). “[A] district court’s decision concerning a defendant’s role in an offense” is also

reviewed for clear error. United States v. Gates, 461 F.3d 703, 709 (6th Cir. 2006).

       Jackson and Hines both challenge their new sentences, arguing that (1) the district court

incorrectly calculated their Sentencing Guidelines range by considering judicially found facts

contrary to those found by the jury beyond a reasonable doubt, and (2) even if properly considered,

those judicially found facts were clearly erroneous. We first consider whether the district court

correctly calculated the advisory Guidelines sentencing range.

       A.      The District Court Correctly Calculated the Advisory Guidelines Range at
               Resentencing


       Hines argues that the district court used an improper Guidelines range at resentencing

because it deviated from the law of the case established by this Court in his first appeal and

calculated an advisory Guidelines range that improperly considered acquitted conduct. Jackson

similarly argues that the district court improperly calculated the Guidelines range by relying on

judicial fact finding rather than facts found by a jury beyond a reasonable doubt. Arguments similar


       2
         “A factual finding is clearly erroneous when, though there is evidence to support that
finding, ‘the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.’” United States v. Ables, 167 F.3d 1021, 1035 (6th Cir.
1999) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

                                                 7
to Hines’ law-of-the-case and Jackson’s and Hines’ arguments about judicial fact-finding that

deviates from facts found beyond a reasonable doubt in a special jury verdict were recently rejected

by this Court in United States v. Mendez, 498 F.3d 423 (6th Cir. 2007) (per curiam).3

       1.      Law-of-the-Case Doctrine Not Implicated

       Similar to the defendant in Mendez, Hines argues here that the law-of-the-case doctrine

applies. Hines is mistaken. Under this doctrine, “findings made at one point in the litigation become

the law of the case for subsequent stages of that same litigation.” Mendez, 598 F.3d at 426 (internal

quotation marks and citations omitted). To determine whether the doctrine applies, the appellate

court’s decision “must be read against the backdrop of prior proceedings in the case.” Id. (internal

quotation marks and citation omitted). Just as in Mendez, “[a]lthough the remand order could have

been clearer,” we construe it as saying what the maximum base offense level should have been for

Jackson and Hines “under a mandatory Guidelines regime,” because that was what was “supported

by a jury’s beyond-a-reasonable-doubt factual findings.” Id. “So read, this language says nothing

about the appropriate range under the advisory Guidelines regime to be used by the district court at

the post-Booker resentencing.” Id.

       2.      Acquitted Conduct Was Properly Considered at Resentencing




       3
         The holding in Mendez was recently upheld in an en banc decision. See United States v.
White, ___ F.3d ___, ___, 2008 WL 5396246, at *5 (6th Cir. Dec. 24, 2008)(en banc). In White,
we held that “[s]o long as the defendant receives a sentence at or below the statutory ceiling set
by the jury’s verdict, the district court does not abridge the defendant’s right to a jury trial by
looking to other facts, including acquitted conduct, when selecting a sentence within that
statutory range.” Id. at ___, 2008 WL 5396246 at *3.

                                                 8
       Hines next argues that the district court calculated an advisory Guidelines range that

improperly considered acquitted conduct. Specifically, he asserts that, because the jury determined

in the special jury verdict form that he did not possess more than 5 grams of cocaine base beyond

a reasonable doubt, the district court cannot consider conduct on which he was acquitted to find

otherwise. Although framed differently, Jackson also argues that the district court improperly

engaged in judicial fact-finding post-Booker.

       Similar arguments were rejected in Mendez. Relying on the Supreme Court’s decision in

United States v. Watts, 519 U.S. 148, 157 (1997), we observed that “this court has repeatedly held

since Booker that sentencing courts may still find facts using the preponderance-of-the-evidence

standard,” “that Booker did not disturb Watts,” and thus reasoned that “a post-Booker sentencing

court may consider even ‘acquitted conduct’ if it finds facts supporting that conduct by a

preponderance of the evidence.” Mendez, 498 F.3d at 426-27.

       In United States v. Watts, the Supreme Court held “that a jury’s verdict of acquittal
       does not prevent the sentencing court from considering conduct underlying the
       acquitted charge, so long as that conduct has been proved by a preponderance of the
       evidence.” 519 U.S. 148, 157 (1997). Watts preceded Booker, but this court has
       repeatedly held since Booker that sentencing courts may still find facts using the
       preponderance-of-the-evidence standard. See United States v. Gates, 461 F.3d 703,
       708 (6th Cir. 2006); United States v. Coffee, 434 F.3d 887, 897-98 (6th Cir. 2006);
       United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005) (“Booker did not
       eliminate judicial fact-finding. Instead, the remedial majority gave district courts the
       option, after calculating the Guideline range, to sentence a defendant outside the
       resulting Guideline range.”). And in United States v. Brika, 487 F.3d 450, 458-60
       (6th Cir. 2007), this court concluded after a thorough analysis that Booker did not
       disturb Watts, and therefore confirmed that a post-Booker sentencing court may
       consider even “acquitted conduct” if it finds facts supporting that conduct by a
       preponderance of the evidence.




                                                  9
Id. (footnote omitted). This Court’s en banc decision in White acknowledges that “Mendez accords

with the view expressed by our sister circuits that Booker did not alter the Watts position on

acquitted conduct.” White, ___ F.3d at ___, 2008 WL 5396246 at *2 (citing cases).

       As we observed in White, it is not improper post-Booker for a district court to “to rely[] on

acquitted conduct in applying an advisory Guidelines system.” Id. at ___, 2008 WL 5396246 at *3.

Rather, “[i]n the post-Booker world, the relevant statutory ceiling is no longer the Guidelines range

but the maximum penalty authorized by the United States Code.” Id. Because Jackson and Hines

received sentences “below the statutory ceiling set by the jury’s verdict, the district court [did] not

abridge the defendant’s right to a jury trial by looking to other facts, including acquitted conduct,

when selecting a sentence within that statutory range.” Id. In Hines’ case, the “statutory ceiling”

of 20 years “set by the jury’s verdict” is well above Hines’ actual sentence of 8 years, 1 month. See

21 U.S.C. § 841(b)(1)(C). In Jackson’s case, the “statutory ceiling” of life imprisonment “set by the

jury’s verdict” is well above Jackson’s actual sentence of 30 years. See 21 U.S.C. § 841(b)(1)(A).

       The district court committed no error when it considered acquitted conduct on resentencing.

“Taking acquitted conduct into account . . . is permitted for the limited purpose of determining the

sentence for convicted conduct, which must be shown by a preponderance of the evidence.” White,

___ F.3d at ___, 2008 WL 5396246 at *4. “[T]he district court’s consideration of acquitted conduct

in sentencing passes constitutional muster . . . insofar as enhancements based on acquitted conduct

do not increase a sentence beyond the maximum penalty provided by the United States Code.” Id.

at ___, 2008 WL 5396246 at *5.

       B.      The District Court’s Factual Findings Are Not Clearly Erroneous



                                                  10
        We now address Jackson’s and Hines’ arguments that the district court’s factual findings

about drug quantities and Jackson’s leadership role were clearly erroneous. We begin with the

district court’s drug quantity findings as to Hines.

        1.      Quantity of Drugs Attributed to Hines

        At Hines’ resentencing, the district court considered counsel’s arguments, relied on the same

evidence presented at his original February 10, 2004 sentencing -- e.g. trial testimony, Jackson’s

statement to Agent Hayes, Edwards’ post-trial affidavit, and testimony that both Edwards and Hines

used co-defendant Calvin Merrell as a runner for small amounts of cocaine -- and reaffirmed the drug

quantity findings made at Hines’ original sentencing. Those findings are as follows.

        First, as to the period between May 20, 2002 and June 13, 2002, there were several drug

deliveries; some made by Hines and some by others. Because the evidence showed that Hines was

involved at both the beginning and the end of this time period, the district court found all criminal

activity of Edwards and Merrell during this time was reasonably foreseeable to Hines, thereby

making him accountable for 13.46 grams of crack cocaine and 660 milligrams of powder cocaine.

Second, none of drug quantities involved in July 2002 would be attributable to Hines. Third,

considering Edwards’ trial testimony and his post-trial affidavit, the district court attributed to Hines

the one-half ounce of crack cocaine (14.17 grams) that Edwards testified he fronted to Hines because

this testimony showed that they were still working toward a common goal. As to the one-half ounce

of crack cocaine that Edwards testified he and Hines had obtained from Jackson and split, the district

court attributed to Hines one-half of that one-half, or 7.09 grams of crack cocaine. Finally, based

on Jackson’s statement to Agent Hayes that Hines frequently purchased drugs from him and had



                                                   11
even done so as recent as a week ago, the district court found that, even if outside the conspiracy

period, this was still relevant conduct under U.S.S.G. § 1B1.3(a)(2) and attributed Hines with 29

grams of powder cocaine. The district court thus determined that Hines would be attributed with

34.72 grams of crack cocaine and 29 grams of powder cocaine, thereby arriving at a base offense

level under the Sentencing Guidelines of 30. (JA 902-906).

       Hines challenges these findings, arguing that the district court failed to determine the scope

of his agreement and improperly relied on Edwards’ post-trial affidavit that conflicted with his trial

testimony. Each of these arguments is addressed below.

       a.      District Court Did Determine Scope of Hines’ Agreement

       Hines first argues that, in calculating the drug quantity attributable to him, the district court

improperly applied U.S.S.G. § 1B1.3(a)(1)(B)4 and held him accountable for the conduct of others

in the criminal drug conspiracy without first determining the scope of the criminal activity that Hines

agreed to join. In United States v. Campbell, 279 F.3d 392, 400 (6th Cir. 2002), this Court held that

§ 1B1.3(a)(1)(B) “requires that the district court make particularized findings with respect to both

       4
        U.S.S.G. § 1B1.3(a)(1)(B) provides that relevant conduct used to determine the
Guideline range, includes:

       (B)     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,

       that occurred during the commission of the offense of conviction, in preparation
       for that offense, or in the course of attempting to avoid detection or responsibility
       of that offense . . .

U.S.S.G. § 1B1.3(a)(1)(B).

                                                  12
the scope of the defendant’s agreement and the foreseeability of his co-conspirators’ conduct before

holding the defendant accountable for the scope of the entire conspiracy.” Contrary to Hines’

arguments here, the district court satisfied these requirements.

       First, the district court did not find Hines accountable for all of his co-conspirators’ conduct

during the entire April through November 2002 scope of the conspiracy. Rather, the district court

made particularized findings that Hines was involved in the conspiracy to purchase and distribute

cocaine both at the beginning and the end of the time period between May 20, 2002 and June 13,

2002, during which time several deliveries were made by Hines and others. Next, the district court

found all criminal activity of co-conspirators Edwards and Merrell during this time to be reasonably

foreseeable to Hines. The district court further found that, based on Edwards’ trial testimony and

his post-trial affidavit, that Edwards and Hines were still working towards a common goal of the

criminal conspiracy at the time they split a one-half ounce of crack and at the time Edwards fronted

another one-half ounce of crack to Hines.

       In Campbell, this Court observed that the district court may infer the scope of a defendant’s

agreement “from the conduct of the defendant and others.” Campbell, 279 F.3d at 400. That is what

the district court did here. It examined the time period Hines was actively involved in the

conspiracy, its common goal, and the conduct of Hines’ co-conspirators that was reasonably

foreseeable during that time period. The district court’s findings as to the scope of Hines’ agreement

to participate in the charged criminal conspiracy are not clearly erroneous.

       2.      Edwards’ Trial Testimony and Post-Trial Affidavit Are Consistent




                                                 13
       Hines also challenges the district court’s attribution of any drug quantity based on Edwards’

testimony that he and Hines had split a half ounce of crack cocaine that they had purchased from

Jackson. In particular, Hines argues that the district court improperly relied on Edwards’ affidavit

averring that this occurred during the April through November 2002 time frame of the charged

conspiracy (JA 159)5 because it conflicts with his trial testimony (JA 295-298, 307-09, 333, 342-43,

346, 350-55). Hines misconstrues Edwards’ trial testimony. Edwards testified that he did recall one

instance where both he and Hines bought a half ounce of cocaine from Jackson that they split, but

he could not recall the precise date. He admitted that he had previously told the government that he

had purchased crack cocaine from Jackson in the summer of 2002. (JA 350). On cross-examination,

Edwards testified that he dealt with Jackson in 2001 or 2002, that he could not give a precise date,

but it was probably in the summer of 2002. (JA 353-54). Thus, the district court’s finding that this

drug transaction occurred during the time frame of the charged conspiracy is not clearly erroneous.




       5
           In his December 17, 2003, post-trial affidavit, Edwards avers the following:

       2.        From April through November 2002, I was involved with the purchase and
                 distribution of cocaine base, commonly known as crack cocaine. During
                 that time period, Marlos Hines and I purchased 1/2 ounce of crack cocaine
                 from Nakeitha Jackson. Marlos Hines and I split the 1/2 ounce of crack
                 cocaine.

       3.        During the same time period, on at least one occasion, I “fronted” 1/2
                 ounce of crack cocaine to Marlos Hines. I gave Marlos the 1/2 ounce of
                 crack cocaine without making him pay me for it first. Once he sold the
                 crack cocaine, he was supposed to pay me for it. He never paid me for the
                 crack cocaine. After that, I refused to provide crack cocaine to Marlos
                 Hines unless he paid for it first.

(JA 159).

                                                  14
       Hines also challenges the district court’s attribution of any drug quantity based on Edwards’

testimony that he also fronted Hines a half ounce of crack cocaine. In particular, Hines argues that

the district court improperly relied on Edwards’ affidavit averring that there was one instance where

Edwards and Hines split a half ounce of crack cocaine that they purchased from Jackson and another

instance where Edwards fronted Hines a half ounce of crack cocaine (JA 159) because it conflicts

with his trial testimony (JA 296, 308-309). Contrary to Hines’ argument here, there is no conflict

with Edwards’ testimony at trial and that in his post-trial affidavit. At trial, Edwards testified that

he did not sell Hines any cocaine that he got from Jackson. When asked whether he bought crack

cocaine from sources other than Jackson, Edwards replied that he did. He further testified that he

never sold it to Hines but rather had fronted it to him one time. (JA 296). When asked specifically

whether Jackson was a source for Hines, Edwards testified that there was only one time that he and

Hines split some crack cocaine that Jackson supplied. (JA 308-309). Thus, the district court’s

findings attributing to Hines all of the drug quantity that he and Edwards purchased from Jackson

(14.17 grams) and half of the drug quantity Edwards obtained from another source and fronted to

Hines (7.09 grams) are not clearly erroneous.

       B.      Quantity of Drugs Attributable to Jackson

       Jackson challenges the quantity of drugs that the district court attributed to him. In particular,

Jackson argues that, although the district court is permitted to estimate the drug quantity to be

attributed to him, U.S.S.G. § 2D1.1, cmt. n. 12 (2002), it improperly found a drug quantity here that

is not supported by a preponderance of the evidence. Despite Jackson’s arguments to the contrary,

the drug quantity estimated by the district court and attributed to Jackson is supported by a

preponderance of the evidence. There is no clear error.

                                                  15
       At Jackson’s original sentencing, the district court heard testimony from ATF Special Agent

David Hayes, the individual to whom Jackson gave a statement after his arrest. Agent Hayes

testified that he explained to Jackson at the outset of the interview that the grand jury had charged

him with crack cocaine offenses; and consequently, the discussion was about crack cocaine. (JA

832-834, 837-38). Jackson admitted to Agent Hayes that he would usually pick up about nine

ounces a week from his source in Nashville and bring it back to Russellville, Kentucky. Sometimes

Jackson made more than one trip in a week. (JA 835). Jackson also discussed his prices. (JA 838).

Agent Hayes asked Jackson about Marlos Hines (also known as “Frog”) and Marcel Edwards (“Meat

Grease”). Jackson admitted that he had dealt with Hines extensively, and that Hines had approached

him about obtaining drugs within the last few days. (JA 836). Based on Jackson’s statement to

Agent Hayes, Agent Hayes’s testimony, and testimony at trial, the district court found that Jackson

was talking about crack cocaine in his statement to Agent Hayes and that Jackson possessed at least

1.5 kilograms of crack cocaine (thereby making his base offense level thirty-eight under the

Sentencing Guidelines). (JA 861-65). The district court observed that the highest offense level

under U.S.S.G. § 2D1.1 applied when a defendant’s drug-trafficking offense involved 1.5 kilograms

of crack cocaine. Thus, the court estimated, at the 9 ounces a week that Jackson said he usually

picked up from his source, Jackson would have obtained 1.5 kilograms in six weeks and this would

place him at an offense level of 38. (JA 861).6 Moreover, the district court acknowledged, even if

Jackson was obtaining powder cocaine from his Nashville source, the evidence showed that he had

distributed crack cocaine. Thus, the district court found that Jackson had possessed 1.5 kilograms


       6
         The district court rejected the substantially greater 11.2266 kilogram drug quantity set
out in Jackson’s Presentence Report (“PSR”). (JA 965, ¶ 55) (calculating 9 ounces purchased for
44 weeks as provided in Jackson’s statement to Agent Hayes).

                                                 16
of crack cocaine during the time of the charged conspiracy, attributed that drug quantity to him, and

determined that his base offense level would be 38. When re-sentencing Jackson, the district court

relied on the same evidence, made the same findings, and arrived at the same conclusion. (JA 915-

19, 930-32).

       C.        Leadership Role Attributed to Jackson

       At his original sentencing, the district court found that Jackson was at least one of the leaders

of the criminal activity set out in Count one of the indictment and that there were five or more

participants involved. The district court thus applied a four-level enhancement to Jackson’s

sentence, pursuant to U.S.S.G. § 3B1.1(a).7 (JA 861-65). Based on these findings, the district court

calculated Jackson’s offense level as forty-two and his criminal history category was six, placing him

in a sentencing range under the Sentencing Guidelines of 360 months to life imprisonment. (JA 366,

870). When re-sentencing Jackson, the district court relied on the same evidence supporting its

earlier finding about Jackson’s leadership role, once again calculated the Guidelines range to be 360

months to life, and once again sentenced Jackson to 360 months imprisonment. (JA 915-19, 930-

32).




       7
           U.S.S.G. § 3B1.1provides that:

       Based on the defendant’s role in the offense, increase the offense level as follows:

       (a)       If the defendant was an organizer or leader of a criminal activity that
                 involved five or more participants or was otherwise extensive, increase by
                 4 levels.

U.S.S.G. § 3B1.1(a) (2002).

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       Jackson argues that the district court erred when it attributed to him a leadership role in the

criminal conspiracy and thus applied a four-level enhancement when calculating the Guidelines

sentencing range. In making this determination, the district should consider

       the exercise of decision making authority, the nature of participation in the
       commission of the offense, the recruitment of accomplices, the claimed right to a
       larger share of the fruits of the crime, the degree of participation in planning or
       organizing the offense, the nature and scope of the illegal activity, and the degree of
       control and authority exercised over others. There can, of course, be more than one
       person who qualifies as a leader or organizer of a criminal association or conspiracy.
       This adjustment does not apply to a defendant who merely suggests committing the
       offense.


U.S.S.G. § 3B1.1, cmt. n. 4 (2002). Here, the evidence supports the district court’s finding and four-

level enhancement. Testimony from Agent Hayes, Jackson’s statement, and trial testimony show

that (1) Jackson frequently purchased large amounts of cocaine that he would then sell to

“middlemen” in the Russellville, Kentucky area; (2) he sold the drugs he had purchased in varying

amounts to Edwards, Johnson and Hines, who then delivered even smaller amounts to others; (3)

Jackson set the price for the drugs offered for sale to Edwards, Johnson and Hines; (4) Edwards

testified that Jackson’s prices were often “too high,” indicating that he claimed a right to a larger

share of the fruits of the criminal activity; and (5) Jackson, Edwards, Hines, Johnson, and Merrell

were all participants in the charged criminal activity. The district court’s attribution of a leadership

role to Jackson was not clearly erroneous.

IV.    Conclusion

       For the foregoing reasons, we affirm Jackson’s and Hines’ sentences.




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