                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 02-3663
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,

                             v.


BOBBY DEWAYNE JOHNSON,
                                       Defendant-Appellant.
                       ____________
         Appeal from the United States District Court
               for the Southern District of Illinois.
        No. 01-30152-DRH—David R. Herndon, Judge.
                       ____________
     ARGUED APRIL 7, 2003—DECIDED AUGUST 19, 2003
                      ____________


  Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Bobby DeWayne Johnson re-
ceived a sentence that was seven and a half years more
than the ten-year mandatory minimum due to the district
court’s relevant conduct determination that he distributed
1.5 kilograms of crack cocaine. On appeal, he challenges the
district court’s drug quantity calculation, arguing that the
self-incriminating statement he made following his arrest
was unreliable and should have been evaluated under a
clear and convincing evidence standard of proof. We do not
find Johnson’s statement unreliable, nor do we believe the
district court was required to apply a higher standard of
2                                              No. 02-3663

proof than the preponderance of the evidence standard.
Therefore, we affirm Johnson’s conviction and sentence.


                   I. BACKGROUND
  Johnson was arrested when he arrived at a hotel room to
consummate a drug sale with a police informant. During
the arrest, the police searched Johnson and seized 10.8
grams of crack cocaine and .62 grams of heroin. Johnson
began crying, stating that he was willing to cooperate and
did not want to go to jail. He also told the officers that
he had a large heroin habit of 2 grams per day. The follow-
ing day, eleven hours after his arrest, Johnson was advised
of his Miranda rights and agreed to make a statement. In
his statement, he admitted that he had sold “1/16th” (one
ounce) of crack cocaine to the informant six times in the
past week and a half, and had sold one ounce of crack co-
caine each day for the past seven or eight months. Johnson
was indicted for possession with the intent to distribute
in excess of five grams of crack cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and ultimately pled
guilty to the charge without entering into a written plea
agreement with the government.
  Before Johnson pled guilty, the government filed an infor-
mation which included, pursuant to 21 U.S.C. §§ 841, 850,
and 851, giving the court and Johnson notice that he was
subject to a mandatory minimum sentence of 10 years’ im-
prisonment and a maximum sentence of life imprisonment
due to a previous felony drug conviction. At the guilty plea
hearing, the government informed the court of Johnson’s
post-arrest statement in which he admitted his involvement
in the offense and detailed conduct that amounted to dis-
tribution in excess of 500 grams of crack cocaine. The
district court determined that Johnson knew (1) he was
pleading guilty to possessing in excess of 5 grams of crack
cocaine with the intent to distribute, (2) he was facing a
No. 02-3663                                                   3

sentence of 10 years to life, and (3) because of his post-
arrest statement his sentence could be severe. The court ad-
vised Johnson that, in addition to the 10.8 grams seized
during his arrest, his accountability with respect to other
drugs would require a separate determination of relevant
conduct that the court would make rather than a jury.
Johnson acknowledged that he understood this process and,
other than challenging that he sold more than 500 grams of
crack cocaine, agreed with the government’s factual asser-
tions.
  At sentencing, the district judge reviewed the presentence
investigation report (PSR) detailing Johnson’s relevant
conduct based on his post-arrest statement, which con-
cluded that Johnson’s relevant conduct consisted of distrib-
uting in excess of 1.5 kilograms of crack cocaine.1 Johnson
objected to this calculation by challenging the reliability
of his statement. He offered witnesses who testified that he
may have been suffering from heroin withdrawal and
desperate for more drugs at the time he made his state-
ment. He also argued for a higher standard of proof than
the preponderance of the evidence standard. The district
court adopted the PSR, overruled Johnson’s objection, and
refused to apply a higher standard of proof. The court
ruled that his relevant conduct was 1.5 kilograms or more
of crack cocaine, which resulted in a sentencing range of
210 to 262 months’ imprisonment, and sentenced him to
210 months.
   Johnson now appeals, renewing his argument that his
post-arrest statement was unreliable. He asserts that his
lengthy sentence amounts to “tail wagging the dog” because
it was the result of his relevant conduct, and not the con-
duct that precipitated his arrest, and this conduct was not
proved by clear and convincing evidence.


1
  The 1.5 kilograms was reached by multiplying one ounce (28.35
grams) by 210 days (approximately 7 months) to arrive at 5,935.5
grams of crack cocaine.
4                                                    No. 02-3663

                        II. ANALYSIS
  Relevant conduct determinations are factual findings that
we review with great deference to the district court, revers-
ing only in the case of clear error. United States v. Car-
mack, 100 F.3d 1271, 1276 (7th Cir. 1996).2 For relevant
conduct, the government is required to prove the amount of
drugs attributable to a defendant by a preponderance of the
evidence. United States v. Ofcky, 237 F.3d 904, 908 (7th Cir.
2001). Proving relevant conduct by a preponderance of the
evidence requires showing that the conduct was “ ‘more
likely than not,’ i.e., probable or likely rather than just
possible.” United States v. Shannon, 110 F.3d 382, 401 n.10
(7th Cir. 1997) (en banc) (citing United States v. Saulter, 60
F.3d 270, 280 (7th Cir. 1995)).
  Here, Johnson’s relevant conduct was based on his post-
arrest statement that he dealt one ounce of crack cocaine
every day for the preceding seven to eight months. Self-
incriminating statements such as Johnson’s, which was
clearly against his penal interest, “have long been consid-
ered reliable enough for use at trial . . . , so we cannot say
that they are too unreliable for use at sentencing.” United
States v. Szakacs, 212 F.3d 344, 352-53 (7th Cir. 2000).
Indeed, we have held that a drug dealer’s self-incriminat-
ing statement to a drug enforcement agent, which was of-
fered at sentencing solely through the testimony of the
agent (as opposed to a written confession or testimony by
the dealer), was sufficiently reliable because “[n]o one was
more qualified than [the dealer] himself to put a number on



2
  “Clear error review means that the district court’s decision will
not be reversed unless after reviewing the entire record we are left
with a definite and firm conviction that a mistake has been com-
mitted.” Id. at 1276 (citing United States v. Flores-Sandoval, 94
F.3d 346, 349 (7th Cir. 1996)).
No. 02-3663                                                      5

the amounts of cocaine he was purchasing and re-selling.”
United States v. Contreras, 249 F.3d 595, 602 (7th Cir.
2001).
  Nothing about Johnson’s case makes it different. Like
the district court below, we are unpersuaded by Johnson’s
argument that his heroin addiction makes his statement
inherently unreliable. To support his argument, Johnson of-
fered the testimony of Dr. Jonathan Lipman, Ph.D., a neu-
ropharmacologist, who testified that based on his review of
Johnson’s arrest and hospitalization records, Johnson may
have been suffering from heroin withdrawal at the time
he made the statement and under such circumstances may
have been willing to say anything in the hopes of being
released and obtaining more drugs to feed his addiction.3
Johnson also offered the testimony of Andrea Smith, an as-
sistant federal public defender, who said that Johnson ap-
peared to be suffering from severe heroin withdrawal when
she met with him two days after his arrest (the day after he
made his statement). Johnson, however, did not testify on
his own behalf.
  The officers who arrested Johnson and took his confession
testified that he did not appear to be going through with-
drawal at the time he confessed but instead seemed very
alert and coherent. They also testified that he stated he
wanted to cooperate, signed a written waiver of his Mir-
anda rights, and read over and corrected his statement (ini-
tializing his corrections) before signing it. They further
stated that while Johnson was willing to incriminate him-
self, he was unwilling to give the name of his drug supplier



3
   Johnson also submitted a report of Dr. Heidi Israel, Ph.D., who,
like Dr. Lipman, did not interview or examine Johnson, but who
nevertheless opined that Johnson’s possible heroin withdrawal
might have caused him to say anything in order to obtain more
drugs.
6                                               No. 02-3663

to the interrogating officers. The district court concluded
that while the testimony proffered by Johnson was helpful
in explaining the progression of opiate withdrawal, it did
not override the officers’ testimony that Johnson did not
appear to be going through withdrawal at the time he made
his statement. We accord exceptional deference to a sen-
tencing judge’s credibility determinations. See, e.g., United
States v. Johnson, 227 F.3d 807, 813 (7th Cir. 2000); United
States v. McClinton, 135 F.3d 1178, 1193 (7th Cir. 1998).
And under these circumstances, we cannot say that the dis-
trict court committed clear error in rejecting Johnson’s
addiction argument and sentencing him based on his post-
arrest statement.
  Johnson argues that his sentence amounts to a “tail wag-
ging the dog” because it was his relevant conduct, and not
the conduct that precipitated his arrest, that lengthened his
sentence from ten years to seventeen and a half years, and
that relevant conduct was not proved by clear and convinc-
ing evidence. “It is well-established that simply a prepon-
derance of the evidence is all that is required for a factual
finding under the Sentencing Guidelines.” United States v.
Porter, 23 F.3d 1274, 1277 (7th Cir. 1994) (citing United
States v. Corbin, 998 F.2d 1377, 1387 (7th Cir. 1993)). “A
higher standard might be called for only in the rare in-
stance where a factual finding will result in a sentencing
increase so great that the sentencing hearing can fairly be
characterized as a tail which wags the dog of the substan-
tive offense.” Corbin, 998 F.2d at 1387 (citations and quota-
tion marks omitted). Johnson claims that his case is similar
to United States v. Hopper, 177 F.3d 824 (9th Cir. 1999),
and United States v. Kikumura, 918 F.2d 1084 (3d Cir.
1990), in which the Ninth and Third Circuits respectively
held that proof by clear and convincing evidence was
required in order to substantially enhance a defendant’s
sentence based on relevant conduct. See Hopper, 177 F.3d
at 833 (clear and convincing evidence required for increase
No. 02-3663                                                       7

from 24-30 months to 63-78 months because of the relative
shortness of the unenhanced sentencing range); Kikumura,
918 F.2d at 833 (twelve-fold sentence increase, from a range
of 27-33 months to a term of thirty years, must be proved by
clear and convincing evidence). Our decisions have im-
plicitly agreed with Kikumura to the extent that due pro-
cess considerations may, at some point, require a greater
showing for a dramatic increase. Nevertheless, we have
approved the preponderance standard in numerous cases
in which a defendant’s sentence was increased by a factor
greater than in Kikumura or Hopper. See, e.g., United
States v. Rodriguez, 67 F.3d 1312, 1323 (7th Cir. 1995)
(enhancement from 51-63 month range to sentence of life
imprisonment); United States v. Porter, 23 F.3d 1274, 1277
(7th Cir. 1994) (enhancement from 33-41 month range to
137-month sentence); United States v. Masters, 978 F.2d
281, 286-87 (7th Cir. 1992) (enhancement from 33-41 month
range to 40-year sentence); United States v. Schuster, 948
F.2d 313, 315-16 & n.3 (7th Cir. 1991) (enhancement from
21-27 month range to 5-year sentence). While this list is not
exhaustive, it is sufficient to show that the increase in
Johnson’s sentence is not one of those rare instances in
which a higher standard is required.4




4
  While this case presents a sentence that is less troublesome
than those which this court has previously rejected applying a
higher standard of proof, the significant increase in Johnson’s sen-
tence due to his self-incriminating statement, and the circum-
stances in which he gave it, underscore the need for the proper
exercise of prosecutorial discretion. In this case, we hope that the
prosecutors exercised this power with an eye toward justice, mind-
ful of the discretion that is essential to the proper functioning of
the criminal justice system. See United States v. Zendeli, 180 F.3d
879, 886-87 (7th Cir. 1999); see also United States v. LaBonte, 520
U.S. 751, 762 (1997).
8                                            No. 02-3663

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

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—8-19-03
