                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0083n.06

                                        Case No. 13-1152
                                                                                     FILED
                                                                               Feb 03, 2014
                          UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )      ON APPEAL FROM THE UNITED
                                                     )      STATES DISTRICT COURT FOR
v.                                                   )      THE WESTERN DISTRICT OF
                                                     )      MICHIGAN
JIMMY RAY VALENTINE,                                 )
                                                     )
       Defendant-Appellant.                          )




       BEFORE: SILER, COLE, and COOK, Circuit Judges.


       COOK, Circuit Judge. Convicted of conspiring to purchase and distribute large amounts

of crack cocaine in 2000, Jimmy Ray Valentine moved for a sentence reduction under 18 U.S.C.

§ 3582(c)(2) after the Sentencing Commission amended the sentencing guidelines for such

offenses in 2007. Valentine appeals the district court’s judgment finding Valentine accountable

for at least 8.4 kilograms of crack cocaine, rendering him ineligible for a reduction. Because

ample evidence supports the district court’s finding, we affirm.


                                                I.


       In 2000, a jury convicted Valentine and several codefendants of conspiracy to distribute

and possess with intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. §§ 846
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United States v. Valentine


and 841(a). At trial, cooperating co-conspirators testified that the conspiracy involved a total of

50 to 75 kilograms of crack cocaine, with Valentine playing a key role in coordinating large

crack cocaine purchases.


       Valentine’s presentence report recommended, consistent with the then-guidelines, a base-

offense level of 38 because his criminal activity involved more than 1.5 kilograms of cocaine

base—the highest drug-quantity threshold at that time.         Judge Richard Enslen overruled

Valentine’s objection to this quantity, noting that “witnesses testified that the total amount of

crack purchased by the defendant and his co-conspirators . . . was somewhere between 50

kilograms and 60 kilograms, a great deal more than 1.5.”


       Judge Enslen also imposed a two-level aggravating role enhancement under U.S.S.G.

§ 3B1.1(c). The enhancement resulted in an offense level of 40 and a guidelines range of 292 to

365 months, and the court sentenced Valentine to 292 months. Valentine appealed on a number

of grounds, and we affirmed, observing that “[t]he amount of drugs involved in the conspiracy

was conservatively estimated at between 50 and 75 kilograms of crack.” United States v.

Valentine (Valentine I), 70 F. App’x 314, 331 (6th Cir. 2003). Valentine also sought post-

conviction relief, which the district court denied.


       After the Sentencing Commission increased the crack-cocaine threshold for Valentine’s

base-level offense from 1.5 kilograms to 4.5 kilograms, Valentine moved for a sentence

reduction under 18 U.S.C. § 3582(c)(2). Judge Robert Jonker, who replaced Judge Enslen when

Judge Enslen assumed senior status, granted Valentine’s motion, declining to make new factual

findings and holding that “it would be functionally inconsistent—if not literally inconsistent—


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United States v. Valentine


for this Court to increase [Judge Enslen’s] threshold finding [of at least 1.5 kilograms].” On

appeal, we reversed and remanded, concluding that the district court’s decision not to conduct

further fact-finding violated circuit precedent. United States v. Valentine (Valentine II), 694 F.3d

665, 675 (6th Cir. 2012). In doing so, we noted that “credible evidence in the record [shows]

that [Valentine] was responsible for more than 4.5 kilograms of crack cocaine; . . . trial testimony

and Judge Enslen’s reflections on that testimony during [Valentine’s] sentencing indicate that a

preponderance of the evidence establishes that more than 4.5 kilograms . . . was attributable to

. . . Valentine.” Id. We therefore instructed the district court to “determine whether the record

shows by a preponderance of the evidence that . . . Valentine was responsible for at least 4.5

kilograms of crack cocaine.”1 Id.


       In 2011, before the district court took up his remanded case, Valentine filed another

§ 3582(c)(2) motion seeking to benefit from a second guidelines amendment that raised the

crack-cocaine threshold for the highest base-offense level from 4.5 kilograms to 8.4 kilograms.

Accordingly, the district court considered whether the amount of crack cocaine attributable to

Valentine exceeded 8.4 kilograms. Assessing the record evidence heard by Judge Enslen, the

court found that it did, as “[m]ultiple cooperating witnesses provided proffer information, trial

testimony or both linking the conspiracy to years of drug trafficking involving quantities that

easily exceeded 8.4 kilograms over the life of the conspiracy.” The district court thus denied

Valentine’s motion, concluding that the record evidence “overwhelmingly supports a finding by


       1
        Valentine’s codefendants Kenneth, Corey, and Johnny Valentine also filed § 3582(c)(2)
motions. Chief Judge Paul Maloney denied the motions, finding these defendants ineligible for a
sentence reduction because a preponderance of the evidence established that the conspiracy
involved more than 4.5 kilograms. On appeal, we affirmed. Valentine II, 694 F.3d at 673.


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United States v. Valentine


a preponderance of the evidence that [Valentine] is properly accountable for at least 8.4

kilograms of crack cocaine as part of the overall conspiracy.”


                                                II.


       Valentine’s appeal raises two related arguments. First, he contends that the district court

failed to make a “cautious” drug-quantity estimate in crediting certain witness testimony

regarding the purchase and distribution amounts. Second, he argues that the district court erred

by attributing co-conspirators’ conduct to him without making particularized findings concerning

his scope-of-consent to the conspiracy and the foreseeability of his co-conspirators’ relevant

conduct, as required by the sentencing guidelines and our precedent. See United States v.

Campbell, 279 F.3d 392, 400 (6th Cir. 2002). Neither argument warrants remand.


A. The District Court’s Drug-Quantity Finding


       We review a district court’s drug-quantity determination for clear error. United States v.

Hernandez, 227 F.3d 686, 697 (6th Cir. 2000). “An approximation by a court is not clearly

erroneous if it is supported by competent evidence in the record.” United States v. Ward, 68

F.3d 146, 149 (6th Cir. 1995). At a minimum, the district court’s determination “must have

some . . . indicium of reliability beyond mere allegation.” Id. (internal quotation marks omitted).


       Valentine insists that de novo review should apply because the district court’s alleged

failure to make a “cautious” approximation of the amount of crack cocaine attributable to him

constitutes legal error.     Though district courts must “err on the side of caution” when

approximating drug quantities, Hernandez, 227 F.3d at 699, our cases confirm the clear-error


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United States v. Valentine


standard for drug-quantity findings. Id. at 697; see also Valentine I, 70 F. App’x at 329;

Valentine II, 694 F.3d at 672. Unlike the cases Valentine cites,2 the district court considered

only factual questions, not legal issues, in arriving at its drug-quantity conclusions.


       Valentine next points to six “distinct circumstances . . . warranting special caution” in

this case: (1) scarce physical evidence supporting the district court’s drug-quantity

determination; (2) no defense admissions concerning drug quantities; (3) the government’s

cooperating witnesses’ incentive to lie and exaggerate; (4) the district court’s decision not to hold

a hearing; (5) Valentine’s lack of incentive at the original sentencing hearing to offer argument

on the new, higher drug-quantity thresholds; and (6) the district court’s alleged failure to respect

Judge Enslen’s credibility determinations.


       But Valentine overstates the uniqueness of his case.              Our precedent holds that

“[t]estimonial evidence from a coconspirator may be sufficient to determine the amount of drugs

for which another coconspirator should be held accountable.” Hernandez, 227 F.3d at 697.

Further, Valentine fails to specify what other evidence he would have presented if the higher

drug-quantity thresholds had applied at his original sentencing. And Valentine cites no authority

requiring a judge to examine new evidence in a § 3582(c)(2) proceeding when the parties have

had a full opportunity to establish the record.


       As for the district court’s drug-quantity finding, competent evidence supports its

       2
         Valentine points to cases presenting mixed questions of law and fact such as “whether
there existed a substantial risk of harm to human life or the environment within the meaning of
the [sentencing guidelines],” and whether “a defendant knowingly created a substantial risk of
injury as set forth in the Guidelines.” Unlike a district court’s drug-quantity finding, these issues
involve both a factual question—the nature of the conduct—and a legal question—the
guidelines’ applicability to the conduct.
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United States v. Valentine


determination that the conspiracy involved more than 8.4 kilograms. Indeed, in affirming the

denial of Valentine’s codefendants’ § 3582(c)(2) motions, we noted that “this is a case where

uncontradicted trial testimony indicated that the conspiracy involved tens of kilograms of crack

cocaine that were foreseeable to each [d]efendant as a member of the conspiracy.” Valentine II,

694 F.3d at 673 (emphasis added).


        Valentine maintains that the district court clearly erred in relying on the testimony of

Yusef Phillips, a co-conspirator who estimated that the conspiracy involved up to 75 kilograms

of crack cocaine, and other witnesses who testified to smaller amounts. But to uphold the district

court’s finding, we need look only at Jerry Lee Butler’s testimony as the conspiracy’s primary

supplier. Butler testified that he personally sold crack cocaine to Valentine three to five times,

with the first transaction involving 8 to 10 ounces and the other transactions involving 1 to 2.5

kilograms each. More damning still, Butler testified that codefendant Corey Valentine traveled

to Arkansas approximately twenty times, picking up 1.5 to 3 kilograms of crack cocaine on each

occasion, with either Valentine or codefendant Kenneth Valentine coordinating the purchases.

Judge Enslen expressly found Butler’s testimony concerning these Arkansas transactions

credible. Even a conservative sum of these estimates exceeds 30 kilograms, much more than the

district court’s finding of at least 8.4 kilograms.


        Valentine marshals a number of arguments in the face of this evidence. First, he asks us

to disregard much of his co-conspirators’ testimony and focus only on the crack cocaine he

personally purchased, using only witnesses’ lowest drug-quantity estimates. But as the district

court properly noted, Valentine may also be found accountable for the foreseeable actions of his

co-conspirators. See U.S.S.G. § 1B1.3(a)(1)(B). These actions include the purchase of tens of

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United States v. Valentine


kilograms of crack cocaine from Butler, with Valentine playing a key organizing role.


       Valentine next presses that United States v. Battle, 706 F.3d 1313 (10th Cir. 2013),

compels reversal here, as the Tenth Circuit disapproved of the district court’s calculation of a

“theoretical maximum amount” of drugs. But the court reversed and remanded there because the

district court double-counted. Id. at 1320-21. Unlike Battle no double counting occurred here.


       Last, Valentine makes much of Judge Enslen’s “misgivings about the total amount of

crack, whether it is 50 to 60 kilos or not.” These misgivings likely derive from Butler’s trial

testimony concerning the total amount of crack cocaine he sold to the Valentines. Specifically,

Butler said, “[n]othing more than 50. Maybe less than 50. . . . I don’t think it would be more

than 50, but it could be. But . . . no more than 50.” Regardless, these “misgivings” about how

many tens of kilograms to attribute to the conspiracy fail to undermine the district court’s

relatively modest finding of at least 8.4 kilograms. Still, Valentine contends that because Judge

Enslen expressed doubt about the total amount of crack cocaine Butler sold, Judge Enslen

necessarily doubted Butler’s testimony about the amounts involved in individual transactions.

Not so. Admittedly, Judge Enslen’s “misgivings” might give us pause had the district court

found Valentine responsible for 40 or 50 kilograms. See Valentine II, 694 F.3d at 673 (reasoning

that “[i]f the amended quantity threshold was 40 kilograms rather than 4.5 kilograms, Judge

Maloney would have had a tougher question to answer.”).           But here, where substantial,

competent, and uncontradicted evidence shows that the conspiracy involved much more than 8.4

kilograms, Valentine fails to show clear error.


B.     Valentine’s Scope of Consent and the Foreseeability of his Co-Conspirators’ Actions


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United States v. Valentine


       Next, Valentine argues that the district court failed to make “particularized findings”

required by U.S.S.G. § 1B1.3 and our decision in Campbell. The government responds that the

district court did make the requisite findings when assessed together with Judge Enslen’s earlier

findings. We review a district court’s interpretation of the sentencing guidelines de novo.

United States v. Canestraro, 282 F.3d 427, 431 (6th Cir. 2002).


       When a defendant participates in a “jointly undertaken criminal activity,” U.S.S.G.

§ 1B1.3(a)(1)(B) instructs courts to assess a defendant’s base-offense level “on the basis of . . .

all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). Application Note Two further provides that “to

determine the defendant’s accountability for the conduct of others . . . , the court must first

determine the scope of the criminal activity the particular defendant agreed to jointly undertake

(i.e., the scope of the specific conduct and objectives embraced by the defendant’s agreement).”

U.S.S.G. § 1B1.3 cmt. n. 2.   In Campbell, the court construed § 1B1.3 to “require[] that the

district court make particularized findings with respect to both 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.” Campbell, 279 F.3d at 400-01 (vacating the

district court’s sentence “because the court failed to make particularized findings with respect to

the scope of [the defendant’s] agreement”) (emphasis removed).


       Unlike the district court in Campbell, the district court here was not writing on a clean

slate—Judge Enslen already made detailed findings concerning the scope of Valentine’s consent

and the foreseeability of his co-conspirators’ conduct. These findings remained binding on the

district court. See Valentine II, 694 F.3d at 673 (explaining that a court in a § 3582(c)(2)

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proceeding may make new factual findings if they are “not inconsistent with the court’s

determination at [the defendant’s] original sentencing”); see also U.S.S.G. § 1B1.10(b)(1) (“In

determining whether . . . a [§ 3582(c)(2) sentence] reduction . . . is warranted, the court shall . . .

substitute only the [amended sentencing guidelines] and shall leave all other guideline

application decisions unaffected.”). In particular, Judge Enslen found that “[Valentine] agreed

with some of the co-conspirators to purchase large quantities of crack from Arkansas, bring that

crack back to Michigan, [and] resell it [in] Benton Harbor,” evidencing his scope of consent.

And in imposing the two-point aggravating-role enhancement, Judge Enslen concluded that

“[Valentine] made the initial contact with . . . Butler as a potential source of cocaine, . . . he

pooled money with other co-conspirators to purchase that cocaine, [and] he negotiated and

organized the terms and conditions of the purchases.”            The district court, responding to

Valentine’s argument that he should be found responsible only for crack cocaine he personally

purchased, cross-referenced these earlier findings.


       As to foreseeability, Judge Enslen found that “[t]rial testimony indicated [that Valentine]

was involved in . . . three to five purchases in Arkansas of one to two kilograms per transaction,”

and other “multiple kilogram purchase[s] from Arkansas,” concluding that “this quantity was

either known by [Valentine] personally because he was there or was reasonably foreseeable to

him.” Consistent with these findings, the district court noted Valentine’s leadership role and

found Valentine “properly accountable for . . . all reasonably foreseeable acts . . . in furtherance

of the . . . extensive crack cocaine distribution conspiracy.”


       These findings substantially comply with Campbell. See United States v. Elias, 107 F.

App’x 634, 638 (6th Cir. 2004) (holding that the district court “substantially complied” with

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Campbell despite the district court’s failure to use the words “scope of the defendant’s

agreement”). Valentine clings to Judge Enslen’s findings attributing “at least 1.5 kilograms” to

him. But that finding, made under the drug-quantity thresholds then applicable, need not prevent

the district court from making a higher drug-quantity finding later. See Valentine II, 694 F.3d at

670 (“[I]f the record [in a § 3582(c)(2) proceeding] does not reflect a specific quantity finding

but rather a finding . . . that the defendant was responsible for ‘at least’ . . . a certain amount, then

the modification court must make supplemental findings based on the available record.”). Judge

Enslen himself tied Valentine to the larger quantities in commenting, “witnesses testified that the

total amount of crack purchased by [Valentine] and his co-conspirators . . . was somewhere

between 50 kilograms and 60 kilograms, a great deal more than 1.5.” (R. 436, Sent’g Tr. at 28-

29) (emphasis added). These undisputed, earlier findings obviate the need for additional findings

here. Cf. United States v. Sullins, 529 F. App’x 584, 589 (6th Cir. 2013) (holding that the district

court substantially complied with Campbell such that remand “would be a waste of resources”).


                                                  III.


        For these reasons, we AFFIRM.




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