                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0108n.06

                                          Case No. 19-1462

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Feb 19, 2020
 UNITED STATES OF AMERICA,                          )
                                                                            DEBORAH S. HUNT, Clerk
                                                    )
          Plaintiff-Appellee,                       )
                                                    )           ON APPEAL FROM THE UNITED
 v.                                                 )           STATES DISTRICT COURT FOR
                                                    )           THE WESTERN DISTRICT OF
 MARTIN LUTHER DUKES,                               )           MICHIGAN
                                                    )
          Defendant-Appellant.                      )                      OPINION
                                                    )
                                                    )



BEFORE: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. Martin Dukes pleaded guilty after participating in a large-

scale drug distribution scheme. He now challenges his sixty-three-month sentence. He argues that

the district court erred in (1) calculating the drug quantity attributable to him and (2) holding him

accountable for a co-conspirator’s actions. Dukes also claims the government presented

insufficient evidence to support the district court’s ruling.

       But that’s not the case. The district court relied on the record to determine the quantity of

drugs involved in the conspiracy that Dukes could have reasonably foreseen. Evidence shows

Dukes knew that the conspiracy’s leader, Howard Mayfield, obtained cocaine as part of the

conspiracy. Because we hold criminal defendants accountable for foreseeable actions of their co-

conspirators within the scope of the criminal agreement, the district court did not err by finding

Dukes responsible for drugs Mayfield handled. And a preponderance of the evidence supports that
No. 19-1462, United States v. Dukes


Dukes knew of at least 14.57 kilograms bought or transported to further the conspiracy. So we

AFFIRM.

                                                 I.

       Dukes participated in a conspiracy to distribute cocaine and crack cocaine. The indictment

named many defendants allegedly involved in a Michigan-based drug trafficking scheme. Various

law enforcement agencies worked together to uncover the organized drug distribution. And they

used a wide array of investigative methods, including wiretapping, controlled buys, confidential

informants, GPS tracking, and surveillance. Howard Mayfield spearheaded the conspiracy,

recruiting and directing participants while taking in a considerable share of the profits. At first,

Mayfield worked with Wilbert Gentry to obtain large amounts of cocaine (over 100 kilograms)

from the Sinaloa Cartel in Mexico to distribute stateside. After falling out with Gentry, Mayfield

turned to Quincy Lofton and Craig James for a new supply. To secure drugs for the distribution

scheme, Mayfield often traveled to Texas and Tennessee. All the while, Mayfield kept in close

contact with Dukes.

       Dukes and Mayfield have a close, longstanding relationship. They are longtime friends,

having known each other for over thirty-five years. Throughout the conspiracy, Dukes and

Mayfield spoke “daily . . . on a variety of topics.” (R. 700, Sentencing Tr., PageID # 3659.) And

Dukes bought cocaine from Mayfield, both to deal and for personal use. While Dukes neither

traveled with Mayfield nor executed large-scale drug transactions, he remained Mayfield’s

confidant during the conspiracy. Mayfield also sold cocaine at Dukes’s house and sought help

from Dukes to process shipments of cocaine. In brief, Dukes acted as Mayfield’s “right-hand man.”

(R. 614, Presentence R., PageID # 2256.)




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       In his plea agreement, Dukes admitted to entering a conspiracy with Mayfield and others

to possess and distribute cocaine with the intent that it would be distributed. He also confirmed

that he “understood and intended to join in the conspiracy to possess and distribute controlled

substances.” (R. 365, Plea Agreement, PageID # 908.) But after reviewing the initial presentence

report, Dukes objected to being characterized as Mayfield’s close associate and thought he should

have received a lesser recommended sentence because he did not “plan, coordinate, or direct”

Mayfield’s acquisitions of drugs. (R. 610, Dukes’s Obj., PageID # 2122.) These objections proved

unsuccessful. The district court adopted the presentence report, holding Dukes responsible for 1.57

kilograms of cocaine that he bought and thirteen kilograms of cocaine that Mayfield transported

into Michigan. And the court echoed the presentence report by remarking that Dukes received an

“extremely conservative” sentence considering his close relationship with Mayfield. (R. 700,

Sentencing Tr., PageID # 3668; R. 614, Presentence R., PageID # 2284.)

       At sentencing, Dukes reiterated these concerns about the drug quantity for which he was

held responsible. Although Dukes admitted some knowledge of Mayfield’s drug acquisitions, he

disputed that he knew enough to be held responsible for thirteen kilograms of cocaine that

Mayfield handled. During the hearing, the government produced a phone call reflecting Dukes’s

knowledge of Mayfield’s drug trafficking trips and his concern that the arrest of a drug courier

(who was carrying eight kilograms of cocaine) might trigger a federal investigation. The

government also relied on evidence that Dukes communicated with Mayfield during another trip

Mayfield took to Texas to pick up five more kilograms of cocaine. The district court sided with

the government, finding Dukes responsible for 14.57 kilograms of cocaine as recommended by the

final presentence report. The court sentenced Dukes to sixty-three months, which was on the lower




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end of the Guidelines range. He now challenges the district court’s decision to sentence him based

on cocaine obtained and transported by Mayfield.

                                                 II.

       Dukes asserts two errors. First, he argues that he isn’t liable for drugs Mayfield possessed

because Mayfield’s criminal activity was not reasonably foreseeable to him and it was outside the

scope of Dukes’s criminal agreement. Second, he claims that the district court’s finding that the

conspiracy involved 14.57 kilograms, at least in relation to Dukes, isn’t supported by a

preponderance of the evidence.

       We review a district court’s findings on the foreseeability of criminal activity of a co-

conspirator for clear error. United States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002). And we also

review the quantity of drugs used to calculate a defendant’s sentence for clear error. United States

v. Charles, 138 F.3d 257, 267 (6th Cir. 1998). “A finding is ‘clearly erroneous’ when, although

there is evidence to support it, the reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.” Tocco, 306 F.3d at 284 (quoting Charles,

138 F.3d at 262). But we determine the relevance of the conduct to the conspiracy de novo. Id.

       Dukes pleaded guilty to the conspiracy and is thus liable for the actions of his co-

conspirators, including Mayfield, for conduct that “was reasonably foreseeable to [Dukes] and in

furtherance of the execution of the jointly undertaken criminal activity.” United States v. Jenkins,

4 F.3d 1338, 1346 (6th Cir. 1993). So Dukes isn’t liable for all of the contraband involved in the

distribution scheme. Just the cocaine that (1) he knew about or was reasonably foreseeable to him,

and (2) was within the scope of his criminal agreement. See United States v. Campbell, 279 F.3d

392, 399–400 (6th Cir. 2002).




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No. 19-1462, United States v. Dukes


       In this analysis, foreseeability must rise beyond “know[ing] that every transaction requires

an extensive network of importers and distributors handling large quantities.” Jenkins, 4 F.3d at

1346 (quoting Stephen J. Schulhofer, Excessive Uniformity-And How to Fix It, 5 FED. SENT’G REP.

169, 170 (1992)). That means we need to “differentiate between [Dukes] and other members of

the . . . conspiracy.” Id. at 1347. Yet we have imposed liability when a defendant knew about:

(1) the drug scheme’s leadership; (2) particular instances of obtaining and selling drugs; (3) the

potential for being caught by a government investigation; (4) the methods of creating drugs; and

(5) actions taken by other drug dealers in the conspiracy. See United States v. Young, 847 F.3d

328, 367–68 (6th Cir. 2017).

       Dukes contends that the lower court erred “because it failed to make particularized findings

regarding both that the quantities of drugs delivered to Michigan through Mayfield were

reasonably foreseeable to [Dukes] and that the shipments were in furtherance of the joint criminal

activity to which Mr. Dukes agreed.” (Appellant Br. at 20.) To make this point, Dukes claims the

phone calls between him and Mayfield did not show Dukes knew that Mayfield transported drugs

for future distribution. That’s because Dukes allegedly “minimally participat[ed]” in discussing

the drug scheme and that Dukes and Mayfield “discuss[ed] . . . many other legal and harmless

matters common to all close friendships.” (Appellant Br. at 24–25.) For instance, he describes their

typical conversation as “Mr. Mayfield saying yap, yap, yap, yap, and Mr. Dukes [responding] uh-

huh, uh-huh . . . and then there is a little bit of interaction.” (R. 700, Sentencing Tr. at PageID #

3664.) Further addressing the phone calls, Dukes claims that “knowledge [about the drugs] alone

does not amount to reasonable foreseeability to be on the hook for that quantity.” (Id. at 3657.)

That is true. Campbell, 279 F.3d at 400. But the conversations between Dukes and Mayfield




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No. 19-1462, United States v. Dukes


introduced at sentencing show that such quantities were foreseeable and within the scope of

Dukes’s agreement.

       First, Dukes admitted that he knew Mayfield acquired between five and fifteen kilograms

of cocaine. Considering Dukes’s role as Mayfield’s “right-hand man in the drug trafficking

conspiracy,” Dukes could have reasonably foreseen that Mayfield would use the drugs in the

conspiracy. (R. 614, Presentence R., PageID # 2260, 2268.) And the two often communicated,

discussing subjects like Mayfield’s obtaining drugs, manufacturing drugs, and a potential federal

investigation. Likewise, it is apparent enough from the evidence introduced at sentencing that

distribution of at least 13 kilograms of cocaine fell under Dukes’s criminal agreement. Dukes and

Mayfield discussed the co-conspirator who was arrested with eight kilograms of cocaine and the

record reflects that Dukes helped Mayfield sell and process shipments of cocaine. So the evidence

supports the inference that Dukes likely knew about and agreed to participate in a drug trafficking

scheme, and took specific actions in furtherance of that scheme. Similar knowledge and agreement

provided ample ground to uphold co-conspiracy liability in Young.

       What’s more, the district court judge gave Dukes an “extremely conservative” sentence

because he considered only “actual conversations between [Dukes] and Mr. Mayfield showing

[Dukes’s] knowledge[.]” (R. 700, Sentencing Tr. at PageID # 3668.) So the district court

(1) differentiated Dukes from other co-conspirators by relying on his conversations and (2) cited

ample evidence showing Dukes knew about, and agreed to participate in a conspiracy to distribute,

the cocaine at issue. And Dukes still knew Mayfield acquired and transported cocaine, even if

Mayfield did most of the talking during their phone calls. As a result, the district court did not err

by holding Dukes responsible for cocaine Mayfield obtained and transported.




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No. 19-1462, United States v. Dukes


                                                  III.

        Because Dukes is liable for the cocaine he knew Mayfield obtained and that was part of his

criminal agreement, the only question remaining is whether a preponderance of the evidence

supported the ultimate quantity of drugs used to calculate Dukes’s sentence. The district court held

him responsible for 14.57 kilograms of cocaine—1.57 kilograms handled by Dukes and thirteen

kilograms bought and transported by Mayfield. But Dukes believes it did so without sufficient

evidence.

        The quantity of drugs on which a sentence is based must be supported by a preponderance

of the evidence. United States v. Anderson, 526 F.3d 319, 326 (6th Cir. 2008). We permit estimated

drug quantities, so long as the district court erred on the side of caution. Id. In sum, the quantity of

drugs supporting a sentence must reflect “a minimal level of reliability beyond mere allegation.”

United States v. West, 948 F.2d 1042, 1045 (6th Cir. 1991).

        Dukes claims the district court held him responsible for 14.57 kilograms of cocaine without

sufficient evidence. He rightly points out the district court lacked physical evidence tying him to

thirteen of those kilograms. In short, he contends the district court sentenced him based only on

speculation. Yet Dukes’s position omits key record details.

        First, Dukes admitted that he knew Mayfield obtained up to fifteen kilograms of cocaine

to use in the conspiracy. Based on that alone, Dukes arguably knew about at least thirteen

kilograms of cocaine that Mayfield obtained for criminal purposes. But there’s more. The record

reflects many discussions between Mayfield and Dukes regarding quantities of cocaine used in the

conspiracy. Yet Dukes is only being held responsible for two shipments of drugs that Mayfield

executed, one for five kilograms and one for eight kilograms. And the district court relied on

reports that Dukes and Mayfield communicated during these shipments. Far from speculative, the




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No. 19-1462, United States v. Dukes


evidence implicating Dukes shows that he likely knew about a large amount of cocaine obtained

and transported by Mayfield. So we are satisfied the lower court did not clearly err in determining

the quantity of drugs for sentencing Dukes. After all, it only needed to find it more likely than not

that Dukes was tied to 14.57 kilograms of cocaine.

                                                IV.

       Our precedent permits imposing liability based on the actions of co-conspirators. Dukes

knew of the cocaine Mayfield possessed and intended to distribute. So he could have reasonably

foreseen that cocaine’s use in the conspiracy. Sufficient evidence shows Dukes knew about at least

thirteen kilograms of cocaine obtained by Mayfield on top of the 1.57 kilograms he possessed.

Thus, both of Dukes’s arguments fall short. We AFFIRM.




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