Drug Quantity Based on Estimation Clearly Erroneous

Drug quantity finding by federal district judge that 20 shipped pallets contained an average of 80 pounds of marijuana was clearly erroneous, the U.S. Court of Appeals for the Tenth Circuit recently held.

Roosevelt Dahda was sentenced to 201 months imprisonment based in part on the lower court’s attribution of 1,600 pounds of marijuana to him. The court reached the 1,600 pound figure by estimating that all 20 of the pallets that were used to ship marijuana contained an average of 80 pounds on each pallet.

The Tenth Circuit began its analysis by recognizing that “The government bears the burden to prove drug quantity through a preponderance of the evidence. The base-offense level may consist of an estimate if it contains some record support and is based on information bearing “minimum indicia of reliability.”

In Dahda’s case, the court concluded that the sentencing court’s drug quantity estimate was not reliable.

“The quantities in the pallets varied. For example, Mr. Bauman testified that each pallet had contained between “five or ten pounds to eighty pounds” of marijuana. R. vol 3, at 2251. Mr. Bauman and Mr. Swift remarked that toward the end of the conspiracy, each pallet usually contained 80 pounds, with Mr. Bauman adding that there “could have been” times when the pallets contained more than 80 pounds. R. vol. 3, at 1067, 2252.

But this testimony does not support a finding that the pallets contained an average of 80 pounds. In fact, the presentence report states that one of the shipments attributed to Roosevelt had contained only 33 pounds of marijuana. R. vol. 4 at 49. The government cites no evidence showing that the district court fairly attributed 80 pounds, rather than 5–10 pounds, to the shipments used to calculate Roosevelt’s base-offense level. Nor is there any way to determine what time period Mr. Bauman and Mr. Swift were referencing when they testified that toward the end of the conspiracy, the pallets usually contained 80 pounds.”

Accordingly, the court held that the Government had failed to “satisfy” its burden to attribute this quantity of drugs to Dahda. The case was remanded for resentencing. See: United States v. Dahda, No. 15-3237 (10th Cir. 2017).