                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0231n.06

                                       Case No. 13-1882
                                                                                  FILED
                                                                               Mar 27, 2014
                                                                         DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE
v.                                                  )       UNITED STATES DISTRICT
                                                    )       COURT FOR THE WESTERN
DEMANUAL PORTER,                                    )       DISTRICT OF MICHIGAN
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                                      OPINION


BEFORE:         COLE and SUTTON, Circuit Judges; CLELAND, District Judge.*

       COLE, Circuit Judge. Demanual Porter appeals his 100-month prison sentence. Porter

pleaded guilty to two counts of distribution of cocaine base in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(C). The district court sentenced him to a within-Guidelines prison

term of 100 months based on a finding that Porter had distributed in excess of 54 grams of

cocaine base.    On appeal, Porter argues that the district court’s drug-quantity finding was

erroneous because it was based, in part, on the uncorroborated statements of a purportedly

untrustworthy informant. Because the district court did not clearly err in its drug-quantity

determination, we affirm Porter’s sentence.


       *
        The Honorable Robert H. Cleland, United States District Judge for the Eastern District
of Michigan, sitting by designation.
Case No. 13-1882, USA v. Demanual Porter




                                      I. BACKGROUND

       On February 14, 2012, Lansing Police officers arrested Willie Glass after he completed a

drug transaction in a public parking lot. Police caught Glass holding 28.35 grams of crack

cocaine, which he stated he acquired from his longtime dealer, Demanual Porter. Authorities

then arranged for Glass to participate in a series of “controlled buys” from Porter. During these

controlled buys, Glass would pay Porter cash for the crack cocaine that Porter had previously

fronted, and Porter would provide Glass additional quantities of drugs for resale.

       On February 19, Glass met with Porter for the first controlled buy and paid him $1,000

for the 28.35 grams of crack cocaine for which Glass was initially arrested. During the same

buy, Porter fronted Glass an additional 5.41 grams of crack cocaine to sell. Four days later,

Glass met with Porter for a second controlled buy, during which Glass paid for the 5.41 grams he

was previously fronted. At that buy, Porter provided Glass an additional 20.95 grams to sell.

Police recorded both buys on video.

       Porter was indicted for and pleaded guilty to two counts of distribution of cocaine base.

At sentencing, the government urged the court to attribute at least 54.71 grams of crack cocaine

to Porter—28.35 grams found on Glass when he was initially arrested plus an additional 26.36

grams that Porter provided Glass during the two controlled buys. But Porter argued that the

court should attribute to him only the amounts exchanged during the controlled buys. Porter’s

attorney questioned the reliability of Glass’s statements regarding the source of the initial 28.35

grams given some confusion as to the timing of Glass’s initial arrest when compared to the

sequence of events surrounding the controlled buys.




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Case No. 13-1882, USA v. Demanual Porter

       The district court rejected Porter’s arguments regarding Glass’s credibility and the timing

of his arrest. Based on the uncontroverted testimony of two Lansing police officers as well as

the prior history between Glass and Porter, the court concluded that Glass was credible and that

Porter had in fact distributed at least 54 grams of crack cocaine during the relevant timeframe.

Accordingly, the court overruled Porter’s drug-quantity objection. The court then calculated a

base offense level of 26, applied a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for

maintaining a drug premises, and determined that Porter had a criminal history category of II.

These calculations resulted in a Guidelines range of 87 to 108 months of imprisonment. The

court ultimately imposed a 100-month sentence, from which Porter timely appealed.

                                        II. ANALYSIS

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

Swanberg, 370 F.3d 622, 625 (6th Cir. 2004). For sentencing purposes, the government need

only establish a drug quantity by a preponderance of the evidence, id., and the district court’s

finding “may be based upon physical evidence (such as seized drugs) or testimonial evidence,”

United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008). We have held time and again that

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

for which another coconspirator should be held accountable.” Swanberg, 370 F.3d at 625

(internal quotation marks omitted). In that context, we afford “great deference” to the district

court’s credibility determinations. See United States v. Esteppe, 483 F.3d 447, 452 (6th Cir.

2007). Under this deferential standard of review, “[c]lear error will not be found where two

permissible views of the evidence exist, and a district court’s approximation of drug quantity is

not clearly erroneous if it is supported by competent evidence in the record.” Jeross, 521 F.3d at

570 (citations omitted).




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Case No. 13-1882, USA v. Demanual Porter


A. Sentencing Guidelines and Their Implication

        The Sentencing Guidelines provide different offense levels depending on the quantity of

cocaine base distributed. U.S.S.G. § 2D1.1(c). Here, the pertinent cutoff was 28 grams. Id.

§ 2D1.1(c)(7)-(c)(8). Porter argues that he was responsible for the 26.36 grams he was caught

distributing during the controlled buys, but nothing more. Accordingly, he argues the district

court should have set his base offense level at 24 under § 2D1.1(c)(8). The district court

determined, based on Glass’s statements to the police and other circumstantial evidence, that

Porter was responsible for distributing at least 28.35 additional grams of cocaine base—namely,

the crack found on Glass’s person during his February 14 arrest. Therefore, the court set Porter’s

base offense level at 26 under § 2D1.1(c)(7).          This determination resulted in an advisory

sentencing range of 87 to 108 months, as opposed to 70 to 80 months.

B. Porter’s Arguments on Appeal

        Porter contends that the district court’s drug-quantity finding and resultant use of a higher

sentencing range constituted “significant procedural error.” But Porter offers threadbare support

for this allegation. Accordingly, his appeal falls short.

        Porter first argues that an apparent clerical error in the police file detailing his activities,

which was later incorporated into the Presentence Investigation Report (“PSR”), undermines

Glass’s credibility. That clerical error suggests that Glass was arrested with the additional 28.35

grams of crack cocaine in between the two controlled buys, as opposed to beforehand. Porter

contends that Glass was engaged in “extra-curricular drug dealing” when he was arrested on

February 14, and that by claiming he had obtained the drugs from Porter, Glass was protecting

himself from additional criminal charges.         This, Porter argues, calls into question Glass’s

credibility.




                                                 -4-
Case No. 13-1882, USA v. Demanual Porter

       Relatedly, Porter argues that the district court should have discredited Glass’s account of

events because the government presented no corroborating evidence showing Porter was the

source of the 28.35 grams found on Glass’s person. Taken together, Porter argues the record

does not support a conclusion that he was responsible for more than 26.26 grams of cocaine base.

       There are several problems with Porter’s arguments. First, two Lansing police officers

responsible for the investigation into Porter’s drug dealing testified under oath as to the sequence

of events and confirmed that both controlled buys came after Glass’s initial arrest, not prior.

Both officers testified that the events unfolded in the following sequence:

       February 14: Glass was arrested with 28.35 grams of crack cocaine that he
       asserted he obtained from Porter.
       February 19: Glass purchased 5.41 grams of crack cocaine from Porter during the
       first controlled buy.
       February 23: Glass purchased 20.95 grams of crack cocaine from Porter during
       the second controlled buy.

Based on this uncontroverted testimony, the district court was justified in rejecting Porter’s

allegation that Glass was engaged in “extra-curricular drug dealing” when he was arrested on

February 14. This, in turn, undercuts Porter’s principle contention that Glass had a motive to lie

regarding the source of the 28.35 grams of crack cocaine in question.

        Second, the district court heard testimony from the officers as to why Glass’s assertions

about Porter were credible. Officer Guerra, who oversaw both controlled buys, explained that

Glass and Porter “dealt [drugs] all the time[,]” had established routine procedures for the fronting

and repayment of drug purchases, and appeared to trust one another. Officer Guerra also

explained that he found Glass’s statement credible because Glass followed through with what he

said he would do during each of the controlled buys.




                                               -5-
Case No. 13-1882, USA v. Demanual Porter

       Given the evidence presented to the district court—including a particularized course-of-

dealing between Glass and Porter, the true sequence of events surrounding Glass’s arrest and the

controlled buys, Glass’s statement that the 28.35 grams of crack cocaine came from Porter,

Officer Guerra’s testimony that Glass was a credible informant, and the total lack of evidence to

the contrary—we see no error (let alone clear error) in the district court’s drug-quantity finding.

If Porter had evidence showing he was not the true source of the drugs in question, he should

have presented it during his sentencing hearing. Merely stacking one credibility inference on top

of an unfounded allegation will not suffice.

       Where, as here, “there were two permissible views of the evidence,” the district court did

not err in choosing to credit Glass’s statements. See United States v. Kelley, 459 F. App’x 527,

534 (6th Cir. 2012). Moreover, there was “competent evidence in the record” to support the

court’s finding that Porter was responsible for distributing over 28 grams of cocaine base. See

Jeross, 521 F.3d at 570. Accordingly, the district court’s drug-quantity finding and subsequent

application of the base offense level from U.S.S.G. § 2D1.1(c)(7) were not clear error.

                                      III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s imposition of a 100-month prison

sentence.




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