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United States v. Barfield

United States Court of Appeals, Fifth Circuit

October 25, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee

          Appeal from the United States District Court for the Western District of Texas

          Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, Circuit Judge:

         Kenneth James Barfield challenges his 360-month sentence for possession with intent to distribute methamphetamine. He contends that the district court erred by holding him accountable not only for the methamphetamine seized from him but also for the full quantity he confessed to having trafficked in the preceding months. Finding no clear error, we affirm.


         On April 26, 2017, 24-year-old Barfield was released from prison after serving a four-year sentence for assault of an elderly person. His freedom would not last long. Suspecting that Barfield was involved in narcotics trafficking, the Midland Police Department Narcotics Unit began surveilling him shortly after his release. On one occasion, detectives provided a cooperating source (CS) with $475 in cash, with which he successfully purchased 12.9 grams of meth from Barfield. On November 17, 2017, the Narcotics Unit instructed a patrol officer to pull Barfield over for driving without a valid license. Inside Barfield's vehicle, the officer discovered a digital scale, needles, small plastic bags, and 23.4 grams of meth. The search also revealed $917 in cash, including the $475 Barfield had received from the CS.

         Barfield was taken into custody and charged with possession with intent to distribute methamphetamine.[1] The Government sought to enhance the statutory penalty range based on Barfield's prior meth conviction.[2] Barfield pleaded guilty. The Government's proffered factual basis for the plea included the following:

Once at the Midland Police Department, [a detective] read the defendant his Miranda warnings, and the defendant advised he understood his rights. The government's evidence would reflect that during the interview, the defendant admitted ownership to the 25.1 grams of methamphetamine, [3] located inside the vehicle. The government believes the evidence would also reflect the defendant stated that he'd gotten out of prison April of 2017 and had been selling methamphetamine since then. The government further believes that the statements made by Barfield, as reflected by the testimony of the officers, would be that he admitted to obtaining a pound of methamphetamine per week from April 2017 until his arrest.

         Barfield's counsel objected to two of the prosecutor's allegations: (1) that Barfield had sold meth since his release in April 2017, and (2) that he had obtained a pound of meth per week from April until his arrest in November. He did not deny that Barfield had made those statements to police, nor did he explain the basis for his objection.

         The prosecutor responded that he was "satisfied that the elements [of the crime would be] met" even if those two statements were removed from the factual basis. The Court agreed and excluded the statements, but noted that "[t]hat doesn't meant the government's giving up on them." Rather, the Court advised the parties that they "may argue about those" statements again at sentencing.

         After Barfield pleaded guilty, the Probation Office prepared his PSR. Under "Offense Conduct," the PSR related:

When Barfield was questioned by officers at the MPD, Barfield stated he had been distributing methamphetamine since he was released from prison, which was in April 2017. Barfield admitted to obtaining a pound of methamphetamine a week. . . . Barfield distributed at least 1 pound (453.6 grams) of actual methamphetamine a week as of April 2017 (27 weeks).

         Based on that admission, the PSR held Barfield accountable for 12.2 kilograms of actual methamphetamine.[4] This drug quantity yielded a base offense level of 38 and, in combination with Barfield's lengthy criminal record, a Guidelines sentencing range of 360 months to life.[5]

         Barfield submitted a written objection to the drug quantity alleged in the PSR, claiming that he "was extremely high on methamphetamine" when he made his post-arrest statement about receiving a pound of meth per week. In addition, Barfield claimed that he overstated his involvement in the meth trade "out of fear" and the hope that he might "talk himself out of being arrested" by indicating that he could give prosecutors information on a major drug-trafficking operation, rather than the minor street-level dealing he actually engaged in.

         The Government did not offer a transcript or recording of Barfield's post-arrest interview, nor did it call the officers who interviewed him to testify at the sentencing hearing. Although the district judge found the defense's argument "novel" and "interesting," he ultimately concluded that Barfield's post-arrest statement had "sufficient indicia of reliability" to support the PSR's total drug-quantity figure.[6] The court overruled Barfield's objection, denied his request for a downward departure and variance, and adopted the PSR in full. When asked if he had anything to say to the court, Barfield reurged his objection to the drug quantity. He did not deny telling investigators that he had received a pound of meth per week; instead, he appeared to challenge the plausibility of his own claim, saying: "Man, I've never even seen that amount of dope. I don't have bank accounts. I didn't have large amounts of money to even sum that up." The district court imposed a sentence of 360 months-at the low end of Barfield's Guidelines range-to be followed by eight years of supervised release.

         On appeal, Barfield argues that the district court erred by "including as relevant conduct an amount of methamphetamine that was not supported by an adequate evidentiary basis." He contends that a drug quantity based on "mathematical extrapolation" is only permissible if accompanied by corroborating evidence, such as testimony or recordings. In his view, the PSR's 12.2-kilogram drug-weight figure was based on nothing more than "one bald, conclusory statement in the presentence report" unsupported by testimonial or documentary evidence. Moreover, Barfield argues, the Government failed to establish that the drug transactions conducted between April and November 2017 could be attributed to him as relevant conduct.



         "The district court's interpretation or application of the Sentencing Guidelines is reviewed de novo, while its factual findings are reviewed for clear error."[7] More specifically, the "district court's determination of what constitutes relevant conduct for purposes of sentencing" is a factual finding that "is reviewed for clear error."[8] "A factual finding is not clearly erroneous if it is plausible in light of the record as a whole."[9] The Court will find clear error "only if a review of all the evidence leaves us 'with the definite and firm conviction that a mistake has been committed.'"[10]


         In determining a defendant's base offense level, a "district court may consider other offenses in addition to the acts underlying the offense of conviction, as long as those offenses constitute 'relevant conduct' as defined in the Guidelines."[11] Relevant conduct includes "all acts and omissions [that the defendant] committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused" and which "occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense."[12]

         A defendant convicted of a drug offense is sentenced based on the amount of drugs involved in the offense.[13] In a drug-trafficking case, relevant conduct may include all acts and omissions "that were part of the same course of conduct or common scheme or plan as the offense of conviction."[14] The Guidelines instruct that "[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense," the district court should "approximate the quantity of the controlled substance" based on, for example, "similar transactions in controlled substances by the defendant."[15] Finally, where there are "multiple transactions," the court should add the drug quantities together and hold the defendant accountable for the total.[16]

         Like all factual findings used in sentencing, relevant conduct must be proven by "a preponderance of the relevant and sufficiently reliable evidence."[17] In determining the total drug quantity attributable to a defendant as relevant conduct, "[t]he court may extrapolate . . . from any information that has sufficient indicia of reliability to support its probable accuracy."[18]Generally, a PSR "bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations."[19] The standard for reliability is not meant to be onerous; indeed, even uncorroborated hearsay can support a relevant conduct finding.[20] However, "[b]ald, conclusionary statements do not acquire the patina of reliability by mere inclusion in the PSR."[21]

         If the court determines that the factual allegations of the PSR are sufficiently reliable, then "the defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it."[22] However, "[i]f the factual recitation [in the PSR] lacks sufficient indicia of reliability, then it is error for the district court to consider it at sentencing-regardless of whether the defendant objects or offers rebuttal evidence."[23]



         We turn first to Barfield's claim that the weekly meth transactions to which he confessed should not have been considered relevant conduct because the Government failed to show they were part of the "same course of conduct" or "common scheme or plan" as the drugs actually seized from him.[24] This contention is untenable under Fifth Circuit precedent. "Particularly in drug cases, this circuit has broadly defined what constitutes 'the same course of conduct' or 'common scheme or plan.'"[25] To qualify as relevant conduct, "repeated instances of criminal behavior," such as separate drug transactions, need only have "sufficient similarity and temporal proximity to reasonably suggest that [they] constitute a pattern of criminal conduct."[26]

         Although the record does not include a verbatim transcript of Barfield's post-arrest statement, its contents as reported in the PSR satisfy both the similarity and the temporal-proximity requirements. According to the PSR, Barfield told investigators that he had obtained and distributed a pound of methamphetamine per week for 27 weeks-that is, "since he was released from prison . . . in April 2017." By his own admission, then, Barfield carried out identical weekly drug transactions at regular, tightly spaced ...

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