                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0822n.06

                                        Case No. 14-5280                               FILED
                                                                                  Oct 30, 2014
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
BARRY DAVID THOMPSON,                               )       TENNESSEE
                                                    )
       Defendant-Appellant.                         )
                                                    )
____________________________________/               )


Before: MERRITT, WHITE, and DONALD, Circuit Judges.

       PER CURIAM. Defendant Barry David Thompson appeals from an order imposing a

57-month prison sentence after he pled guilty to charges of conspiracy to distribute and possess

with intent to distribute and aiding and abetting possession with intent to distribute oxycodone in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). Specifically, this case asks us to

decide whether Thompson’s sentence is procedurally unreasonable because the district court

incorrectly calculated the drug quantity attributable to him. For the reasons explained below, we

hold that the district court correctly calculated the drug quantity based on credible testimony

presented to it. We therefore AFFIRM the sentence imposed by the district court.
Case No. 14-5280
United States v. Thompson

                                         I.       Factual Background

         In April 2013, a federal grand jury charged Florida resident Barry David Thompson and

thirteen others for their roles in an extensive oxycodone trafficking conspiracy centered in

Sullivan County, Tennessee. Six months later, Thompson pled guilty to two counts without the

benefit of a plea agreement.1 During the presentence investigation, Thompson admitted to

having distributed approximately 200 oxycodone pills to one of his co-defendants, Jessica White.

         Based on its investigation and Thompson’s prescription records from Florida, U.S.

Probation ultimately deemed him responsible for 2,730 oxycodone pills (30 milligrams each),

resulting in a base level offense of 28 and, because of a three-point reduction for acceptance of

responsibility, a total offense level of 25. Given Thompson’s criminal history, the presentence

report calculated an advisory Guidelines range of 57 to 71 months’ imprisonment. Thompson

objected to the drug quantity attributed to him in the presentence report, arguing that his offense

level should be 17, with a resulting Guidelines range of 24-30 months.

                            A.       Testimony of Co-Defendant Jessica White

         At the sentencing hearing, the United States called co-defendant Jessica White to

establish the drug quantity attributable to Thompson.2 White testified that she and Thompson

were distant relatives who first met at a family function in Virginia around Thanksgiving 2011.

According to White, Thompson had generally made it known that he was from Florida and had

prescription pills with him. Thompson gave her three or four oxycodone pills that day and later

went to her house to sell her a few more before returning to Florida.


         1
            In the 28-count Superseding Indictment, Count One charged conspiracy to distribute and possess with the
intent to distribute a quantity of oxycodone, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(C); Count
Eight charged aiding and abetting in the possession with the intent to distribute a quantity of oxycodone, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2.
          2
            The Government also called Sergeant Buck Murray of the Sullivan County Sheriff’s Office. Discussion
of his testimony is not necessary to resolve this appeal.

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Case No. 14-5280
United States v. Thompson

       White further testified that she purchased pills from Thompson on several other

occasions, ultimately resulting in an arrangement where he would travel from Florida to

Tennessee nearly every week. White stated that Thompson usually brought her 200 pills per trip

and the most he brought at one time was between 300 and 400 pills. This arrangement continued

for approximately six months until their arrest in June of 2012. Regarding a ledger found in

Thompson’s wallet, White explained that it represented only one of his trips to Tennessee and

was more consistent with six hours of transactions — not six months. She also stated that

Thompson would typically return to Florida with approximately $6,000 to $8,000 in cash.

                          B.        Testimony of Barry David Thompson

       Thompson testified on his own behalf.            Although he largely agreed with White’s

description of how they first met at a family party, he stated that he only distributed pills after

several people asked for them. He said that he knew what he was doing was illegal, but he gave

pills to White because he was attracted to her.

       Thompson stated that he knew White was an addict and an intravenous drug user and that

he supplied her with oxycodone. He also admitted to having a sexual relationship with White,

who was approximately 30 years younger than him. He denied, however, making regular trips to

Tennessee to deliver the pills to her. He also testified that the ledger found in his wallet during

the execution of the search warrant represented all the trips he had made from Florida to

Tennessee and all of the pills he had ever distributed to White. He estimated that he had

distributed an amount consistent with the ledger, plus 30 to 50 more pills as gifts to White, for a

total of approximately 200 pills.




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Case No. 14-5280
United States v. Thompson

             C.      District Court’s Factual Findings and Imposition of Sentence

       Before ruling on the drug-quantity issue, the district court acknowledged that it was the

Government’s burden to prove drug quantity by a preponderance of the evidence and that the

court was thus required to weigh White’s and Thompson’s credibility. The court also noted that

there was little evidence in the record to fully corroborate the version of events offered by either

of them:    White’s testimony indicated that Thompson had distributed approximately 4,400

oxycodone pills, but Thompson claimed a far lesser quantity of approximately 200 pills.

       After reviewing the evidence, the district court deemed White the more credible witness

by finding that her testimony was internally consistent and consistent with statements she

previously made to the Government, and that she had little motivation to fabricate her testimony.

By contrast, the court specifically found significant parts of Thompson’s testimony “puzzling”

and lacking credibility. For example, the court rejected Thompson’s assertion that he was

“duped” into a relationship with White to provide her with pills in exchange for the promise of

sex, noting that many defendants claim drug dealers take advantage of their addictions, but that

in this case Thompson was the drug dealer supplying White with oxycodone. The court also

deemed White’s description of the ledger to be more credible, and found that Thompson’s

statements about the ledger were inconsistent with other portions of his testimony. Additionally,

the court noted that Thompson had implausibly accused law enforcement officers in both

Tennessee and Florida of falsely reporting statements he had made to them.

       After fully evaluating all of the evidence and testimony, the district court ruled “based on

the credible testimony in the record” that the quantity of drugs attributable to Thompson from

January 2012 through June 2012 was 4,400 oxycodone pills (30 milligrams each). That quantity

increased the advisory Guidelines range to 70-87 months. After hearing further argument from


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Case No. 14-5280
United States v. Thompson

the parties, inviting Thompson to personally allocute, and considering the 18 U.S.C. § 3553(a)

factors, the district court ultimately varied downward from the Guidelines range and sentenced

Thompson to 57 months’ imprisonment. The court explained that the only reason Thompson’s

Guidelines range had increased during the sentencing hearing was because he had objected to the

drug quantity set forth in the presentence report, and the court concluded that a sentence within

the previously calculated Guidelines range was sufficient to satisfy the § 3553(a) factors. This

timely appeal followed.

                                   II.     Standard of Review

       We review a defendant’s sentence for procedural and substantive reasonableness. United

States v. Babcock, 753 F.3d 587, 590 (6th Cir. 2014). We may deem a sentence unreasonable

only if the sentencing court abused its discretion. United States v. Carter, 510 F.3d 593, 600 (6th

Cir. 2007) (citing Gall v. United States, 552 U.S. 38, 46 (2007)).

                                         III.    Analysis

       This court reviews a district court’s factual calculation of the drug quantity attributable to

a defendant for clear error. United States v. Olsen, 537 F.3d 660, 663 (6th Cir. 2008). The

Sentencing Guidelines instruct sentencing courts to calculate a defendant’s base offense level

from the total quantity of drugs attributable to him. U.S.S.G. § 2D1.1(c). “A drug quantity need

only be established by a preponderance of the evidence, and an estimate will suffice so long as it

errs on the side of caution and likely underestimates the quantity of drugs actually attributable to

the defendant.” United States v. Anderson, 526 F.3d 319, 326 (6th Cir. 2008). Additionally, the

testimony of a co-conspirator may be sufficient to determine the quantity of drugs attributable to

another co-conspirator. United States v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004).




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Case No. 14-5280
United States v. Thompson

        Thompson contends that the United States failed to meet its burden to prove the drug

quantity by a preponderance of the evidence because White’s testimony during the sentencing

hearing was uncorroborated.3 If the uncorroborated testimony of an accomplice is sufficient to

support a conviction, see United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010); United

States v. Pruitt, 156 F.3d 638, 647 (6th Cir. 1998) (citing United States v. Hayes, 49 F.3d 178,

181 (6th Cir. 1995)), then a co-conspirator’s uncorroborated but credible testimony may sustain a

drug-quantity finding under the lesser preponderance-of-the-evidence standard.

         In this case, the district court specifically found that the testimony from co-defendant

Jessica White was credible.           Thompson’s testimony, however, was “puzzling” and “not

particularly credible.” Thompson does not challenge the court’s credibility determinations. The

district court’s factual determination — that Thompson was responsible for approximately 4,400

oxycodone pills — is thus not clearly erroneous.

        Thompson also argues that the district court failed to apply the “estimate rule” set forth in

United States v. Walton, 908 F.2d 1289 (6th Cir. 1990). The Walton court held that “when

choosing between a number of plausible estimates of drug quantity, none of which is more likely

than not the correct quantity, a court must err on the side of caution.” Id. at 1302 (emphasis

added). In this case, however, there was no reason for the district court to believe that none of

the estimates presented were “more likely than not” to be correct. Having found White’s

testimony credible, the district court implicitly found that her estimate — 4,400 oxycodone pills

— was more likely than not to be correct. Thompson’s reliance upon Walton is thus unavailing.

        Additionally, Thompson argues that the rule of lenity required the district court to resolve

in his favor any alleged ambiguity in the drug quantity attributable to him. Thompson Br. 29-30.
        3
           Thompson suggests that the United States should have called another co-defendant, Dustin Wilcox, who
may have been able to corroborate White’s testimony. Thompson’s Br. at 33. As we hold, the district court did not
abuse its discretion when it relied on White’s credible testimony.

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Case No. 14-5280
United States v. Thompson

His argument fails, however, because the rule is an interpretive tool. Thompson does not

contend that a criminal statute or Sentencing Guideline is ambiguous; thus, the rule does not

apply here. See United States v. Booth, 551 F.3d 535, 541 (6th Cir. 2009).

       Having determined the drug quantity attributable to Thompson, the district court

calculated the corresponding Guidelines range, gave both parties an opportunity to argue for a

particular sentence, invited Thompson to personally allocute, noted that it had already reviewed

the letters of support submitted by Thompson’s friends and family on his behalf, and discussed

the § 3553(a) factors at length. Thompson’s sentence is thus procedurally reasonable.

                                        IV.   Conclusion

       Because the district court correctly calculated the amount of oxycodone attributable to

Thompson, the below-Guidelines sentence imposed procedurally reasonable. The judgment of

the District Court is therefore affirmed.




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