United States v. Patterson; 2017 WL 4112407 (7th Cir. 2017) – Court made plain error in calculating drug quantity
The defendant was convicted of conspiracy to possess with intent to distribute five kilograms or more of cocaine, and being a felon in possession of a firearm. The charges were related to a reverse sting to rob a fictitious stash house. In a meeting between the defendant, an informant, and an undercover agent, the agent stated that he picked up a shipment once a month.
The agent claimed that the first time involved six bricks and last time involved ten bricks of cocaine, but the agent claimed that there were at least 20 bricks on the table at the stash house. The defendant expressed more interest in any cash that might be present. The informant brought up the 20 kilo amount later in the conversation. On the day of the robbery, the defendant and his co-conspirators were arrested at a storage facility.
At sentencing, the district court found the defendant responsible for a drug amount of between 15 kilos and 50 kilos of cocaine, which resulted in a sentencing range of 168 to 210 month. The court imposed a sentence of 168 months. On appeal, the defendant claimed that the district court erred when it calculated his base offense level based on a determination that he reasonably foresaw that the stash house robbery would yield fifteen to fifty kilograms of cocaine.
The Seventh Circuit agreed, finding that the only evidence that directly established how much cocaine the defendant might have anticipated would be at the stash house was the meeting where the undercover agent initially stated that on his first trip he had picked up six kilograms of cocaine.
Although the agent and the informant brought up the 20 kilo amount, it was done “while hypothesizing about whether cash might be recovered or what kinds of security to expect.” The defendant never acknowledged any of the figures that the agent provided or that the informant repeated, “although his comments made clear his intent to obtain a portion of the cocaine recovered as his compensation for the robbery.” Because the sentencing court did not make an express finding of drug quantity or explain the reasoning behind that quantity at the sentencing hearing, the sentence was vacated and remanded.
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