Can You Challenge the Drug Quantity Used at Sentencing?

A judge can estimate drug quantity at sentencing, but the estimate must be backed by reliable evidence. If it is not, it can be challenged. In United States v. Roosevelt Dahda, decided April 4, 2017, the Tenth Circuit threw out a sentence because the drug estimate fell short.

What happened

Roosevelt Dahda was sentenced to 201 months in prison. The sentence was based partly on the judge's finding that he was responsible for 1,600 pounds of marijuana.

The judge got that number by assuming each of 20 shipped pallets held an average of 80 pounds.

The rule on drug quantity estimates

In federal sentencing, drug quantity drives the "base offense level," the starting point for the guideline range. The government must prove the quantity by a "preponderance of the evidence," meaning more likely than not.

The judge may use an estimate. But it must have some support in the record and carry at least a "minimum indicia of reliability."

Why the estimate failed

The evidence showed the pallets varied. One witness, Mr. Bauman, said each pallet held anywhere from "five or ten pounds to eighty pounds." He and another witness, Mr. Swift, said pallets usually held 80 pounds toward the end of the conspiracy, and Bauman added there "could have been" times when pallets held more. But there was no way to tell what time period they meant. And the presentence report showed one shipment tied to Dahda held only 33 pounds.

The court said this testimony did not support an average of 80 pounds per pallet. The government cited no evidence showing the judge fairly assigned 80 pounds, rather than 5 to 10 pounds, to the shipments used to set Dahda's base offense level. The government had not met its burden, and the finding was clearly erroneous (a clear mistake).

The case was sent back for resentencing. United States v. Roosevelt Dahda, 852 F.3d 1282 (10th Cir. 2017). (The Supreme Court later took up a separate wiretap issue in the case.)

What this means for you

Drug quantity is often the biggest factor in a federal drug sentence. If the government's number rests on guesswork, your lawyer can challenge it. The place to start is the presentence report (PSR), the report the probation office prepares before sentencing. Objections to it must be made in writing within 14 days after you receive it. Fed. R. Crim. P. 32(f)(1). Read the drug quantity section line by line and ask where each number came from.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.