The 7th Circuit Court of Appeals has affirmed a man’s 23-year sentence for his drug and firearms convictions despite his assertion that the district court erred by including both uncharged and acquitted drug amounts in his guideline calculation.
Starting in 2016, Keenan Rollerson was under investigation by the Drug Enforcement Administration, which used a confidential informant to arrange a controlled buy from him. Rollerson sold the CI heroin and fentanyl, which the police used to secure search warrants for the apartment where the buy happened and for Rollerson’s home.
Rollerson was later stopped for speeding and admitted to being a convicted felon, cooperating with law enforcement about searching his home. There, police found more than $150,000 in cash that Rollerson admitted was drug money, as well as 4 kilograms of fentanyl, 52 grams of heroin, 97 grams of cocaine and 236 grams of tramadol, plus digital scales and multiple firearms.
A grand jury indicted Rollerson on eight charges including possession with intent to distribute fentanyl, heroin, cocaine, tramadol and four counts of unlawful possession of firearms by a convicted felon. He was convicted on a heroin charge and the four firearms offenses but was acquitted on the fentanyl, cocaine and tramadol charges.
However, his presentence investigation report was based on a quantity of drugs that included not only the heroin offense but also the fentanyl, cocaine and tramadol from the acquitted counts and the four controlled buys used to obtain the search warrants. Rollerson objected, arguing that the record contained no reliable information supporting the uncharged controlled-buy amounts and that neither the controlled buys nor the acquitted offenses were relevant to his conviction for heroin.
Overruling that objection, the Indiana Southern District Court sentenced Rollerson to a 23-year sentence for the heroin count and 10-year sentences for each gun charge, all to run concurrently.
The 7th Circuit Court of Appeals likewise denied Rollerson’s argument that the district court erred by including both the uncharged and acquitted drug amounts in his guideline calculation. However, the court noted that the uncharged drug buys posed a unique problem.
“The PSR said that its source for all these details was the police affidavit used to obtain the search warrant for the stash house. That affidavit, however, was not attached to the PSR and was not offered at sentencing by the government or the defense. It is not in the record at all, even though both sides admit it is the key piece of evidence bearing on the reliability of the uncharged drug amounts,” Circuit Judge David Hamilton wrote.
Even so, “The record establishing the reliability of the controlled buys was sparse, but it was sufficient as a matter of due process, at least in the absence of conflicting evidence,” David concluded. “… At least in the absence of conflicting evidence, the PSR’s assertions concerning the controlled-buy amounts were sufficiently reliable to support a finding that they were proven by a preponderance of the evidence.”
The panel then proceeded to disagree with Rollerson that neither the controlled buys nor the fentanyl, cocaine and tramadol found at the stash house were “part of the same course of conduct or common scheme” as his conviction for possessing heroin with intent to distribute. The 7th Circuit concluded the district court did not clearly err in finding that Rollerson’s uncharged and acquitted conduct was relevant to his offense of conviction.
“What we know about Rollerson’s uncharged drug buys showed similarity, regularity, and temporal proximity to his offense of conviction,” it wrote. “… The same goes for the acquitted possession of fentanyl, cocaine, and tramadol.”
The panel therefore affirmed in United States of America v. Keenan Rollerson, 20-2258.