Determining drug quantities at sentencing is not an exact science and requires only proof by a preponderance of the evidence, the 7th Circuit Court of Appeals affirmed Wednesday.
Johnny Jones, Jennai Rowland and Stephanie Smith all worked as a team selling and distributing drugs in Benton Harbor, Michigan, near the Indiana border.
Smith’s role was to find buyers and connect them to Jones and Rowland. Jones and Rowland controlled the business and set prices, authorized transactions, and provided instructions for meeting and communicating with Smith through text messages or in person.
From May through August 2016, an undercover police officer purchased about 60 grams of methamphetamine from Smith over the course of six controlled buys. During the final buy on August 3, Smith agreed to sell the undercover officer eight ounces of methamphetamine at a Walmart parking lot a few miles north of the Indiana boarder. She arrived with only two ounces of methamphetamine but offered to travel to South Bend for the remaining six ounces.
She then drove to South Bend where she met Jones, Rowland, and Jones’ mother at a hotel where she was given the remaining 6 ounces. Smith returned to the Walmart parking lot where law enforcement officers arrested her.
At the same time, investigators followed a silver Mustang and witnessed a transaction between the Mustang and another vehicle. Investigators saw someone toss two baggies containing a golf-ball-sized white substance from the Mustang’s driver’s side window to a Buick, and someone from the Buick got out of the car and handed a bundle of cash into the Mustang’s driver’s side window. Immediately after the transaction, investigators stopped the Mustang and arrested Jones, who was driving, and Rowland, the front seat passenger.
Jones had $1,500 in pre-recorded money from the undercover agent in his pocket and an additional $2,400 in cash. In a purse that Rowland had on her lap at the time of the stop, investigators found “one fairly small package” of methamphetamine and a loaded .380 caliber pistol. They also found a plastic grocery bag in the back seat which contained 53.8 grams of marijuana, two packages of methamphetamine, empty baggies, two digital scales and two cellphones.
Upon presentation to the jury, the bags of methamphetamine were not marked with the location in which they were found, and one was not properly sealed.
A grand jury charged Jones with conspiring to distribute over 50 grams of methamphetamine, possession with the intent to distribute methamphetamine and possession of a firearm in furtherance of drug trafficking.
The amount of meth totaled to 288 grams, included the amount sold by Smith between may and August 2016 and a calculated conversion of $2,400 in cash at an estimated sale price of $1000/ounce. Jones received a 145-month sentence, which the 7th Circuit court affirmed in USA v. Johnny Jones, 17-2658.
On appeal, Jones argued that the district court miscalculated the drug quantities used to calculate his sentence, but the 7th Circuit determined Jones’ argument was an “uphill battle” for his defense, adding that “determining drug quantities is not an exact science” and requires only proof by a preponderance of the evidence.
The 7th Circuit noted that it would have been ideal if the police been able to stop the Buick and verify that the people in the car had purchased methamphetamine and note the quantity purchased. And although the investigators testified that they saw baggies pass between the cars, they were also hindered from seeing inside the Mustang because of glare on the window.
“Of course evidence can always be stronger, but the district court certainly had a sufficient preponderance of evidence to determine that Jones and Rowland had just exchanged a significant amount of methamphetamine for cash just before being stopped, arrested, and searched,” Judge Ilana Rover wrote for the court.
Jones also contested Rowland was equally responsible according to a theory of liability determined in Pinkerton v. United States, 328 U.S. 640, 647–48 (1946). Under the liability theory, a defendant is liable for the criminal conduct of co-conspirators where those criminal acts “were reasonably foreseeable to the defendant” and “occurred during the time that they were members of the conspiracy.”
The 7th Circuit found that Jones’ arguments that tried to place the drugs in Rowland’s possession, rather than his, were futile provided that her possession of those drugs was foreseeable to Jones and in furtherance of the conspiracy.
Based on the same theory of conspirator liability, the 7th Circuit found there was no error in attributing to Jones, as co-conspirator, all six of Smith’s sales to the undercover officer dating back to May 2016. Smith received instructions and authorization from Jones and returned the proceeds to both Jones and Rowland, and took a share of the profits for herself with Jones’ permission.
Additionally, it found failure in Jones’ argument that the district court improperly imposed a sentencing enhancement for possession of a firearm in furtherance of the crime.
Despite claiming he had attempted to distance himself from the weapon because he “had already been to prison for a firearm,” the 7th Circuit noted that Jones was still liable for the criminal conduct of Rowland, including her possession of a firearm, where those criminal acts were reasonably foreseeable to Jones.