                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         August 21, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-1017
          v.                                             (D. Colorado)
 DEON ROLLEN, also known as                     (D.C. No. 04-CR-514-EW N-1)
 Deacon,

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, B AL DOC K, and HO LM ES, Circuit Judges.




I.    IN TR OD UC TIO N

      Defendant-Appellant Deon Rollen entered an oral guilty plea to nineteen

counts arising from a conspiracy to manufacture and distribute crack cocaine. A t

sentencing, Rollen challenged the drug quantity calculation included in the

Presentence Investigation Report (“PSR”) and used to calculate his base offense

level. The district court rejected Rollen’s challenge and concluded Rollen was



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
responsible for “in excess of eleven kilograms of crack” during just a portion of

the conspiracy period, a quantity significantly higher than the 1.5 kilograms

necessary to place Rollen at a base offense level of thirty-eight.

      On appeal, Rollen renews his objection to the district court’s drug quantity

calculation. He also argues his sentence is substantively unreasonable.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this

court determines the district court’s drug quantity calculation was supported by a

preponderance of the evidence. This court also concludes Rollen’s sentence is

substantively reasonable. Rollen’s sentence is therefore affirm ed.



II.   BACKGR OU N D

      Rollen, along with several other indicted individuals, was involved in a

drug trafficking conspiracy in Colorado beginning in January 2003 and ending in

December 2004. Rollen entered a guilty plea to one count of conspiracy to

distribute and possess with the intent to distribute five kilograms or more of a

mixture or substance containing a detectable amount of cocaine or fifty grams or

more of a mixture and substance containing a detectable amount of cocaine base,

in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A); three counts of

possession with intent to distribute a substance containing a detectable amount of

cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); seven counts of

distribution and intent to distribute five grams or more of cocaine base, in

                                          -2-
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii); and seven counts of using a

communication facility to facilitate the conspiracy, in violation of 21 U.S.C.

§ 843(b). Rollen also pleaded guilty under the criminal forfeiture statute

applicable to drug crimes. See 21 U.S.C. § 853. Rollen admitted he purchased

drugs, cooked powder cocaine into crack cocaine, sold drugs to other individuals,

and knew that the others resold the drugs he provided. In exchange for Rollen’s

plea, the government agreed to recommend a 216-month prison sentence.

      At Rollen’s change of plea hearing, the government alleged that, based on

its wiretap surveillance and other investigation, Rollen was “near the top” of a

hierarchical conspiracy. The government stated its evidence would have show n

that over a period of almost two years, Rollen purchased powder cocaine from

several individuals, particularly co-defendant Richard Powell, went to the home

of two co-defendants, Perry Syrie and Derrick W iley, to cook the powder cocaine

into crack cocaine, and distributed crack cocaine to Syrie and Wiley for

redistribution to other sellers. The government stated the wiretap evidence

collected in the fall of 2004 demonstrated Rollen visited Syrie’s house two or

three times per week and distributed two to three ounces of crack cocaine to Syrie

and W iley on each occasion. The government also indicated that early in the

conspiracy period, during 2003, when Syrie and Wiley lived at a different

residence, Rollen cooked between four-and-a-half and nine ounces of powder

cocaine at their apartment two to three times per week. Syrie and W iley would

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then sell the crack cocaine on Colfax Avenue in Denver either to end-users or

other redistributors. Rollen was usually paid little or nothing when he provided

the crack to Syrie and Wiley but expected payment after the drugs had been

resold.

      In response to the government’s evidence, Rollen asserted the government

“had a lot of things right on the nose.” He did, however, contend the government

was mistaken in assuming that every wiretapped conversation between himself

and Syrie and Wiley involved a discussion about repayment for crack cocaine,

since he also sold marijuana. He also indicated that not every trip to the home of

Syrie and Wiley involved cooking crack cocaine because problems with the

cocaine powder sometimes prevented the manufacture of crack.

      The PSR relied on the government’s sentencing statement when assessing

Rollen’s offense conduct. Prepared after the conclusion of co-defendant Powell’s

trial at which Syrie and others involved in the conspiracy testified, the PSR

indicated Syrie “reported and testified” he received a minimum of three to five

ounces of crack cocaine from Rollen each week between August 2003 and

November 2003. The PSR also stated that, between December 2003 and M arch

2004, Rollen supplied two to four ounces of crack cocaine per week to Syrie and

W iley and that several controlled buys of crack cocaine originating with Rollen

were made in M arch, April, and August 2004. Additionally, according to the

PSR , from April 2004 to December 2004, Syrie purchased two to four ounces of

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crack cocaine from Rollen 1 ; another co-defendant, Akinlabi Coleman, testified he

purchased four ounces of crack cocaine three times per week from Rollen between

July 2004 and November 2004; W iley was supplied with one or two ounces of

crack cocaine by Rollen during this same period in 2004. Based on this

information, the PSR concluded ten kilograms or more of cocaine base were

involved in Rollen’s offenses and, therefore, Rollen’s base offense level was

calculated as thirty-eight. The PSR recommended a three-point departure for

acceptance of responsibility, resulting in a total offense level of thirty-five.

Combined with his criminal history of Category IV, Rollen’s sentencing range

under the advisory Sentencing Guidelines was 235 to 293 months’ imprisonment.

The probation officer recommended the court impose a 250-month concurrent

prison term, as well as a sixty-month term of supervised release.

      Rollen objected to the drug quantity calculation contained in the PSR.

Although he did not take issue with any of the very specific statements in the

PSR , he asserted his conduct involved less than five kilograms of powder cocaine

and, as a result, pursuant to U.S.S.G. § 2D1.1, his base offense level should have

been thirty.



      1
        It is unclear from the PSR whether Syrie purchased two to four ounces of
crack each time Rollen visited his home during this period or whether he
purchased two to four ounces of crack total. Given the government’s statements
at the change of plea hearing, the district court construed the amounts Syrie
purchased from Rollen to be per-visit am ounts. Rollen does not contest this
assumption.

                                          -5-
      At the sentencing hearing, the court rejected Rollen’s challenge. It stated

that, at the change of plea hearing, Rollen had not objected to the government’s

contention that he met with Syrie and other individuals two to three times per

week in the fall of 2004 and cooked two to three ounces of crack cocaine on each

occasion. Accordingly, the court stated,

             Taking the most conservative figures in this limited time
      range, this would be at least 1 kilogram of cocaine during this period
      alone.

             The Government also represented that during 2003, the
      quantities cooked on each occasion were higher, 4.5 ounces on each
      occasion. 2 Given the number of weeks in the year and the frequency
      of the defendant’s visits to M r. Syrie, the Court concludes that in
      excess of 11 kilograms of crack was involved in 2003.

Notwithstanding its eleven-kilogram estimate, however, the district court

observed that “1.5 kilos of crack cocaine suffices to place the defendant at Base

Offense Level 38. Therefore . . . there can be no question that the defendant has

under oath admitted conduct placing him well w ithin this level.”

      Rollen himself then addressed the court. He admitted he did not know how

much crack cocaine he sold, but urged the court that, despite the government’s



      2
        At the change of plea hearing, the government represented the 4.5 to 9
ounce figure as “powder cocaine.” In the court’s recitation of the government’s
evidence, however, the court seems to treat the 4.5 ounce quantity as crack
cocaine. Because Rollen did not object to or even take note of this discrepancy
either in the court below or on appeal, this court assumes the government simply
misspoke at the change of plea hearing and that it intended to say Rollen cooked
and distributed 4.5 to 9 ounces of crack cocaine two to three times per w eek in
2003.

                                           -6-
characterization, he was not a “major kingpin.” In particular, he stated he did not

cook crack cocaine or give drugs to Syrie, a friend of twenty years, every time he

went to Syrie’s house. The court responded it had heard testimony from Syrie at

trial on the matter and reiterated it found Rollen responsible for at least eleven

kilograms of cocaine base. The court ultimately sentenced Rollen to a within-

Guidelines sentence of 264 months’ imprisonment. As part of its consideration of

the factors set out at 18 U.S.C. § 3553(a), the court commented that Rollen w as a

“central figure” in the case and not particularly remorseful for his conduct. The

court also ordered Rollen to serve a five-year term of supervised release upon

completion of his prison term and required him to pay a special assessment of

$1800.



III.   D ISC USSIO N

       A. Drug Q uantity Used for Sentencing Purposes

       On appeal, Rollen contests the district court’s drug quantity calculation.

He first argues he should only have been held responsible for the 169 grams of

crack cocaine included in the indictment, rather than the eleven-kilogram quantity

for which the district court determined him responsible. Rollen next contends the

court erred by failing to rule on the disputed portions of the PSR affecting his

sentence, as required by Federal Rule of Criminal Procedure 32(i)(3)(B).

Furthermore, Rollen asserts there was insufficient independent corroborating

                                          -7-
evidence to support the government’s estimate of the drug amounts attributable to

him because co-defendant Syrie’s testimony was inherently unreliable and

informant Lora W ilson’s out-of-court statements did not mention drug quantities.

Finally, Rollen challenges the method by which the district court arrived at its

eleven-kilogram calculation, arguing the court improperly extrapolated from his

drug activity during a four-month period in 2004 to arrive at a total drug quantity

attributable to him during the entire course of the conspiracy.

      At sentencing, the government bore the burden of proving by a

preponderance of the evidence the quantity of drugs attributable to Rollen for

sentencing purposes. United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir.

2001). “W hen the actual drugs underlying a drug quantity determination are not

seized, the trial court may rely upon an estimate . . . so long as the information

relied upon has some basis of support in the facts of the particular case and bears

sufficient indicia of reliability.” United States v. Dalton, 409 F.3d 1247, 1251

(10th Cir. 2005) (quotations omitted). In a drug conspiracy case, the defendant is

accountable for all quantities with which he was directly involved and all

quantities which would have been reasonably foreseeable within the scope of the

jointly undertaken criminal enterprise. United States v. Lauder, 409 F.3d 1254,

1267 (10th Cir. 2005) (citing U.S.S.G. §1B1.3 cmt. n.2).

      This court reviews the district court’s drug quantity calculation for clear

error. Ryan, 236 F.3d at 1273. Reversal is appropriate only if the record lacks

                                          -8-
factual support or “we are left with a definite and firm conviction that a mistake

has been made.” Id. (quotation omitted). W hen the district court relies upon

witness testimony in making its drug quantity calculation, this court defers to the

district court’s determinations of witness credibility. United States v. Browning,

61 F.3d 752, 754 (10th Cir. 1995).

      The district court’s drug quantity determination in this case was not clearly

erroneous. Nothing precluded the government from presenting evidence of drug

quantities in excess of those included in the indictment for sentencing purposes

and nothing prevented the court from finding Rollen responsible for quantities in

excess of the indicted amounts because the district court’s sentence did not

exceed the statutory maximum sentence of life imprisonment for which Rollen

was eligible. See United States v. W ilson, 244 F.3d 1208, 1216 (10th Cir. 2001);

see also 21 U.S.C. § 841(b)(1)(A)(iii) (prescribing statutory maximum of life

imprisonment).

      M oreover, the court satisfactorily responded to Rollen’s objections at

sentencing by explaining the basis for its calculation. United States v. W illiams,

374 F.3d 941, 947 n.9 (10th Cir. 2004). Because 1.5 kilograms of crack cocaine

is all that is required to arrive at a base offense level of thirty-eight, see U.S.S.G .

§ 2D1.1(c)(1), in order to affirm the district court’s calculation of Rollen’s

advisory Guidelines sentencing range, this court must merely be satisfied the

record supports a finding that 1.5 kilograms is attributable to Rollen. See United

                                           -9-
States v. Humphrey, 208 F.3d 1190, 1209–10 (10th Cir. 2000) (holding harmless

any error in district court’s drug quantity determination where undisputed

quantity of drugs was enough to place defendant at the base offense level

calculated by the district court). The trial court admittedly did not calculate the

precise drug quantity attributable to Rollen, stating that “in excess of eleven

kilograms of crack was involved in 2003” and that Rollen was responsible for “at

least one kilogram of cocaine” during the 2004 wiretap period. The record,

however, indicates there w as more than enough evidence from which the court

could have concluded Rollen was responsible for at least 1.5 kilograms of crack

cocaine over the entire January 2003 to December 2004 period of the conspiracy. 3

      Furthermore, the evidence the court relied upon in calculating the drug

quantity attributable to Rollen bore sufficient indicia of reliability. The



      3
        Although it is unclear from the record how the district court arrived at its
calculation, a rough estimate based on the government’s allegations and the
court’s statements indicate Rollen was probably responsible for far more than the
eleven kilograms of crack cocaine found by the district court.
       The government’s evidence was that, from September 2004 to December
16, 2004, the period when Rollen’s phone was wiretapped, Rollen cooked crack
cocaine at the residence of Syrie and Wiley two to three times per week and
distributed two to three ounces of crack cocaine to Syrie on each visit during this
time period. Assuming, conservatively, Rollen distributed two ounces of crack
cocaine twice per week for fourteen weeks, he would have distributed a total of
fifty-six ounces, or just over 1.5 kilograms of crack cocaine. Additionally, at
Rollen’s change of plea hearing, the government indicated that during 2003,
Rollen cooked 4.5 to 9 ounces two to three times per week. Assuming again,
conservatively, that Rollen cooked only 4.5 ounces two times per week each
week, he would have been responsible for 468 ounces, or 13.3 kilograms, of crack
cocaine in 2003.

                                         -10-
government provided specific information about the quantity of cocaine Rollen

cooked on each visit to the residence of Syrie and W iley during at least two

distinct time periods and about the quantities Rollen provided to other individuals

over the course of the conspiracy. The government based its assertions on an

informant’s statements regarding Rollen’s activities, Syrie’s statements prior to

co-defendant Pow ell’s trial, and the trial testimony of Syrie and other co-

conspirators. The court had the opportunity to assess the credibility and

reliability of that testimony throughout Pow ell’s trial. Rollen’s mere suggestion

that Syrie’s testimony is inherently unreliable because of Syrie’s self-interested

motive for testifying is not enough to override the general rule regarding the

district court’s role in evaluating witness credibility. 4 See Browning, 61 F.3d at

754.

       Finally, the district court did not improperly extrapolate the amount of

crack cocaine for which Rollen was responsible. The court was entitled to

estimate drug quantity in any reliable manner it chose, including computing

       4
        Rollen takes issue with the PSR’s statement as to what Syrie “reported and
testified to” and asserts Syrie did not testify at Pow ell’s trial to all the
information attributed to him in the PSR. Rollen, however, did not include
Syrie’s trial testimony in the record on appeal. This court is thus unable to
review for itself whether Syrie’s testimony did or did not contain the statements
attributed to him in the PSR. In any event, a sentencing court is permitted to rely
on out-of-court statements so long as those statements bear indicia of reliability.
As a consequence, the district court was well within its discretion to consider
Syrie’s unsworn statements to law enforcement as well as Syrie’s trial testimony
when sentencing Rollen. See United States v. Shewmaker, 936 F.2d 1124, 1129
(10th Cir. 1991).

                                         -11-
quantity based on the frequency and amount of drug manufacturing and

distribution over a given period of time. See United States v. Powell, 982 F.2d

1422, 1435 (10th Cir. 1992) (quotation omitted). Based on this court’s review of

the record, the district court appropriately and conservatively based its drug

quantity calculation on the government’s lowest estimates of both the frequency

of Rollen’s visits to Syrie and Wiley and the quantity of crack cocaine cooked on

each visit during each of two distinct time periods. There was no error in this

approach.

      B. Substantive Reasonableness of Rollen’s Sentence

      Having determined Rollen’s base offense level was properly calculated, this

court applies a presumption of reasonableness to Rollen’s sentence. 5 United

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); see also Rita v. United

States, 127 S. Ct. 2456, 2463 (2007) (approving appellate court application of

presumption of reasonableness to properly calculated within-Guidelines

sentences). A defendant can rebut a presumptively reasonable sentence only by

demonstrating the sentence is unreasonable when considered against the other

factors enumerated in 18 U.S.C. § 3553(a). Kristl, 437 F.3d at 1054.




      5
       On appeal, Rollen resurrects a challenge to the number of criminal history
points used to calculate his criminal history category. Rollen explicitly
abandoned this objection to the PSR before the district court and has, therefore,
waived this argument on appeal. Rollen does not otherwise challenge the
procedures the district court used to arrive at a sentence.

                                         -12-
      Rollen’s sole substantive challenge to the reasonableness of his 264-month

sentence focuses on the disparity under the advisory Guidelines between crack

cocaine and powder cocaine offenses. There is certainly no obligation on the part

of a district court to take into account this G uidelines’ disparity as part of its

§ 3553(a) analysis. As a result, the nature of Rollen’s offenses as crack cocaine

offenses cannot make his sentence substantively unreasonable. 6 See United States

v. M cCullough, 457 F.3d 1150, 1171–72 (10th Cir. 2006).




      6
       Although neither have any bearing on this court’s disposition of Rollen’s
case, Rollen correctly notes the Guidelines’ disparity has been called into
question. The Sentencing Commission has recently proposed an amendment to
the Sentencing Guidelines which w ould modify the G uidelines’ current 100-to-1
crack-to-powder ratio in sentencing. See Sentencing Guidelines for United States
Courts, 72 Fed. Reg. 28,558, 28,571–73 (M ay 21, 2007) (notice of submission to
Congress of amendment). The Guidelines themselves will not be modified
however, absent congressional action to stop the modification, until November 1,
2007. See id. at 28,558. Even if the amendment does take effect, there is no
guarantee it w ill apply retroactively to previously sentenced defendants. See
Sentencing Guidelines for United States Courts, 72 Fed. Reg. 41,794, 41,794
(July 31, 2007) (notice seeking public comment on retroactivity of Guidelines
amendment).
       Additionally, the Supreme Court is scheduled to hear oral argument in
October 2007 on a related, but different, question. In United States v.
Kim brough, the district court imposed a below-Guidelines sentence on a
defendant convicted of crack cocaine offenses based on the court’s policy
disagreement with the Guidelines’ disparity in sentencing ranges between crack
and powder cocaine offenses. 174 F. App’x 798, 799 (4th Cir. 2006), cert.
granted, 127 S. Ct. 2933 (June 11, 2007) (N o. 06-6330). The Fourth Circuit held
such a below-G uidelines sentence per se unreasonable. Id.

                                           -13-
IV .   C ON CLU SIO N

       Because the district court did not err w hen calculating the drug quantity

attributable to Rollen or when imposing Rollen’s sentence, the sentence imposed

by the district court is A FFIR M ED.

                                        ENTERED FOR THE COURT



                                        M ichael R. M urphy
                                        Circuit Judge




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