Drug Quantity Based on Estimation Clearly Erroneous
In Roosevelt 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 Dahda 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 Dahda’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 Roosevelt Dahda. The case was remanded for resentencing. See: United States v. Roosevelt Dahda, No. 15-3237 (10th Cir. 2017).
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