                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0288n.06

                                         Case No. 16-1661

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                       )                   May 23, 2017
UNITED STATES OF AMERICA,                              )               DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                              ON APPEAL FROM THE
                                                       )
                                                              UNITED STATES DISTRICT
v.                                                     )
                                                              COURT FOR THE WESTERN
                                                       )
                                                              DISTRICT OF MICHIGAN
DARRYL LARON GILLIAM-FRENCH,                           )
                                                       )
                                                                     OPINION
       Defendant-Appellant.                            )
                                                       )
                                                       )


BEFORE: GIBBONS, SUTTON, and COOK, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant Darryl Gilliam-French pled

guilty to heroin distribution pursuant to a written plea agreement and was sentenced to

65 months’ imprisonment. On appeal, Gilliam-French challenges the ratio the district court used

to convert the cash and money orders found in his possession into an attributable drug weight.

Gilliam-French contends that the amount of heroin attributed to him is too high and that the

conversion rate makes his sentence procedurally unreasonable. For the reasons that follow, we

affirm the judgment of the district court.

                                                I.

       In 2015, the government learned that Darryl Gilliam-French was selling heroin in the

Escanaba, Michigan area.       Thereafter, the government investigated Gilliam-French using a

confidential informant.      Between July and September 2015, the government set up four
Case No. 16-1661, United States v. Gilliam-French


controlled buys from Gilliam-French using wired informants and prerecorded cash. In each

controlled buy, Gilliam-French sold the heroin in “packs,” or clear-filled capsules, usually for

$10 per pack.

       On September 15, 2015, officers saw Gilliam-French leave his residence and meet two

women at an Escanaba shopping center.         When Gilliam-French returned to his apartment,

officers arrested him for two counts of delivery of heroin.        Officers discovered a blank

$300 MoneyGram check on Gilliam-French during his arrest. During the subsequent search of

Gilliam-French’s apartment, officers discovered a plastic bag with five capsules of suspected

heroin, one Xanax pill hidden inside an Ajax bottle, a small amount of marijuana, scales, receipts

for money orders, and $13,424 in cash.

       The investigation into Gilliam-French’s heroin operation led to the arrest of four other

suspects for delivery of controlled substances. During interviews with these suspects, officers

learned that Gilliam-French’s capsules contained 0.1 gram of heroin and each capsule was

typically sold for $10.

       On September 29, 2015, Gilliam-French was indicted on four counts of distribution of

heroin in violation of 21 U.S.C. § 841(a)(1). On February 1, 2016, he pled guilty to Count 1 of

the indictment pursuant to a written plea agreement.

       The United States Probation Office provided the parties with an initial presentence report

(“PSR”) in March 2016. Gilliam-French’s base offense level of 24 was calculated using the drug

weight attributable to him. The $13,424 found in Gilliam-French’s apartment and the $300

MoneyGram found on him during his initial arrest were deemed “drug proceeds” and used to

calculate the drug weight. To avoid double-counting, the proceeds from the government’s




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Case No. 16-1661, United States v. Gilliam-French


controlled buys were not used to calculate drug weight. The money was converted using a rate

of $10 per 0.1 gram of heroin. This led to a drug weight of 137.24 grams.

       Gilliam-French objected to the initial PSR. He objected to the use of witness and

informant statements in calculating the drug weight, and to the use of one of the criminal

convictions used in calculating his criminal-history score. But the final PSR, too, relied on the

same “conservative estimate[s]” from the witness and informant statements and suggested that

the district court resolve the drug weight issue at sentencing.

       The district court conducted a sentencing hearing on May 18, 2016. At the hearing,

Gilliam-French reiterated his objection to the conversion method. Gilliam-French instead argued

that the quantity of heroin listed in lab reports from the four controlled buys was a more accurate

representation of his heroin sales and that the lab report quantities should be the basis for

converting the cash into drug weight. To perform these tests the heroin was separated from its

capsule and transported in plastic bags. Heroin from two capsules from one of the controlled

buys weighed in at 0.0756 grams, heroin contained in five capsules from another controlled buy

weighed 0.0949 grams, and three more capsules from a third controlled buy contained 0.0407

grams of heroin. But, the lab tests were conducted to confirm only that the capsules, in fact,

contained heroin. The lab report did not report the exact weight contained in each capsule

because some stuck to the bags due to static.

       To support its calculation that 0.1 grams of heroin were in each capsule, the government

presented testimony from Michigan State Police Detective Sergeant Ron Koski. Koski testified

about the four controlled drug buys with Gilliam-French. In the first, the informant purchased

six capsules from Gilliam-French for $60. Two capsules sold for $15 in the second controlled

buy. Gilliam-French sold six capsules for $60 in the third controlled buy. The final controlled



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Case No. 16-1661, United States v. Gilliam-French


buy was three capsules for $30. Koski also testified that Gilliam-French had regularly advertised

to his customers that he sold 0.1 gram capsules for $10 each. He further testified that a “pack” or

“point” is common drug slang for a tenth of a gram of heroin. The court also heard testimony

about the standard price for heroin in the Upper Michigan Peninsula and the Detroit area, the lab

reports from the four controlled buys, and the weight contained in each capsule sold by Gilliam-

French.

       The court overruled Gilliam-French’s objection to the drug-weight conversion method

used in the PSR. In doing so, the court stated that it was undisputed that the $13,724 in cash or

money orders was recovered from Gilliam-French, and that Gilliam-French was unemployed and

had no visible means of supporting himself other than drug dealing. It also noted that the lab

reports were conducted for the purposes of determining whether the capsules contained heroin,

and that the weight of the heroin was a secondary consideration. That some of the heroin from

the capsules stuck to the plastic bags in which they were transported could account for the lower

quantities from the four controlled buys. However, that was not the sole basis for its sentencing

decision. The court noted that the samples from the controlled buys were not necessarily

representative of Gilliam-French’s total drug activity. It highlighted that it had heard testimony

that Gilliam-French had been selling heroin for at least two years, and that this evidence could be

factored into its calculation when converting the cash into a drug weight. The district court

ultimately concluded that the estimate in the PSR was accurate, if not an underestimate, of the

amount of heroin for which Gilliam-French was responsible.

       The court also overruled Gilliam-French’s second objection to the guideline scoring from

the PSR. He was sentenced to 65 months’ imprisonment, within the 57-71 months Guidelines

range. He now appeals.



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Case No. 16-1661, United States v. Gilliam-French


                                                II.

       We review a district court’s sentencing decisions for an abuse of discretion. United

States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (citing Gall v. United States, 552 U.S. 38, 40–

41 (2007)).    “A district court’s determination of the quantity of drugs used to compute a

defendant’s sentence is a finding of fact that should be upheld unless clearly erroneous.” United

States v. Young, 553 F.3d 1035, 1051 (6th Cir. 2009) (quoting United States v. Hoskins, 173 F.3d

351, 354 (6th Cir. 1999)). The finding of fact will be clearly erroneous only where “the

reviewing court on the entire evidence is left with the definite and firm conviction that a mistake

has been committed.” United States v. Russell, 595 F.3d 633, 646 (6th Cir. 2010) (internal

citation omitted).

       “Where there is no drug seizure or the amount seized does not reflect the scale of the

offense, the court shall approximate the quantity of the controlled substance.”            Federal

Sentencing Guidelines Manual § 2D1.1, commentary, applic. nt. 5 (U.S. Sentencing Comm’n

2016); see also Russell, 595 F.3d at 646. When so approximating, “the court may consider, for

example, the price generally obtained for the controlled substance, financial or other records,

[and] similar transactions in controlled substances by the defendant.” Guidelines § 2D1.1 nt. 5.

The government “must prove by a preponderance of the evidence both the amount of money

attributable to drug activity and the conversion ratio-i.e., the price per unit of drugs.” Russell,

595 F.3d at 646 (internal citation omitted). When the exact drug weight for which a defendant is

responsible is uncertain, the district court must “err on the side of caution and may only hold a

defendant accountable for a specific quantity for which he is more likely than not actually

responsible.” United States v. Johnson, 732 F.3d 577, 581 (6th Cir. 2013) (internal quotations

omitted).



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Case No. 16-1661, United States v. Gilliam-French


       Here, Gilliam-French does not dispute that the $13,724 in cash and currency was

attributable to his drug activity. Instead, he focuses on the district court’s conversion ratio.

Gilliam-French argues that the conversion of the $13,724 should be based on the quantities

reported by the lab from the controlled buys. For example, he offers that the calculation should

be based on the 0.0756 grams of heroin extracted from two capsules in a controlled buy, yielding

0.0378 grams per capsule. Those two capsules sold for a total of $15, or $7.50 each. Dividing

the $13,724 by that price yields 1,829.86 capsules, for a total of 69.17 grams, instead of 137.24

grams as the PSR and the district court concluded. This drug weight, Gilliam-French argues,

would place him at a starting offense level of 20, instead of 24, and his Guidelines range would

have been 36-47 months instead of 57-71 months.

       We may not reverse a district court’s factual finding as long as it was based on a

plausible view of the evidence, even if we “would have weighed the evidence differently.”

Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). In light of this, “when there are

two permissible views of the evidence, the [district court’s] choice between them cannot be

clearly erroneous.” United States v. Ivy, 165 F.3d 397, 401–02 (6th Cir. 1998) (quoting United

States v. Taylor, 956 F.2d 572, 576 (6th Cir. 1992)). If a court fails to correctly calculate the

Guidelines, however, the procedural error renders the sentence procedurally unreasonable.

United States v. Pawlak, 822 F.3d 902, 905–06 (6th Cir. 2016), abrogated on other grounds,

Beckles v. United States, 137 S. Ct. 886 (2017). Therefore, miscalculating the drug weight for

which a defendant is responsible could result in a procedural error by placing the defendant

within the incorrect Guidelines range. See, e.g., Molina-Martinez v. United States, 136 S. Ct.

1338, 1345–46 (2016).




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Case No. 16-1661, United States v. Gilliam-French


       The district court considered the non-exhaustive list of evidence contained in Note 5 to

§ 2D1.1 and reasonably determined that the proper conversion ratio was $10 to 0.1 grams of

heroin. The district court relied, primarily, on the testimony of Officer Koski. Koski testified to

what he learned about Gilliam-French’s drug sales during his investigation, and to what a “pack”

or “point” usually means in drug slang. Koski testified about the four controlled buys that the

government set up with Gilliam-French, and that, in three of them, Gilliam-French offered to sell

0.1 grams of heroin for $10 per capsule.        He also testified about the multiple interviews

conducted during the investigation with Gilliam-French’s customers, all of whom stated that they

had bought heroin in clear capsules containing a “pack,” or 0.1 gram of heroin, for $10 apiece.

Importantly, several of those customers noted that they had been buying from Gilliam-French

since 2014 and that they often bought multiple capsules a day.

       Koski also offered some explanation of the lower reported drug weights from the lab tests

conducted on the controlled-buy capsules: the tests were conducted to confirm it was heroin, not

to weigh the amount within the capsules, and, when the heroin was extracted from the capsules

and transported in plastic bags, some of the heroin stuck to the interior of the plastic bags from

static. He offered at least one plausible reason that there could be a discrepancy between the

reported quantities and what Gilliam-French had advertised as 0.1 gram capsules of heroin. But,

he acknowledged that this might not account for the entire difference between the 0.1 advertised

and the weight obtained in the lab.

       Gilliam-French argues that Koski’s testimony “does not matter, and that the evidence

from the lab reports is the “best and most reliable evidence of the weight of heroin in the

capsules.” Additionally, Koski’s testimony may support a finding that the conversion ratio was




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Case No. 16-1661, United States v. Gilliam-French


incorrect; he testified that one gram sold for between $125–250, making the $10 per 0.1 gram

measure relatively low.

       The record shows that the district court considered both Koski’s testimony and the

evidence from the lab reports in making its calculation and thus ultimately in its sentencing

decision. The court considered “the price generally obtained for the controlled substance[,]” the

proceeds from the drug sales, and similar transactions and controlled-substance sales by Gilliam-

French. It also considered testimony that Gilliam-French had been selling heroin in the region

since at least the summer of 2014. This fact led the court to believe that Gilliam-French was

responsible for far more the $13,724 in drug proceeds, because it is unlikely he would have kept

all of the proceeds sitting in his apartment in cash for more than a year and a half. Thus, even if

the conversion ratio was inaccurate, the district court’s estimate of Gilliam-French’s drug

trafficking was still a conservative, and reasonable, estimate. Taking all of the testimony into

account, including the lab reports, the district court found the PSR’s estimation accurate. Section

2D1.1 does not limit district courts to consideration of only currency; instead, such evidence is

just an example of types of evidence that may be employed.

       Gilliam-French has not shown that his reading of the evidence is the only plausible one.

Therefore, the district court’s finding of fact as to the drug weight was not in error. Because our

review of a defendant’s sentence is deferential, and because there was ample evidence in the

record to support the court’s calculation that Gilliam-French was responsible for at least

137.24 grams of heroin, we uphold his sentence.

                                               III.

       For the reasons stated above, we affirm the judgment of the district court.




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