U.S. v. Uwaeme

• Decision Date: 02 November 1992
• Docket Number: No. 91-5784,91-5784
• Citation: 975 F.2d 1016
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Innocent U. UWAEME, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1016

975 F.2d 1016

UNITED STATES of America, Plaintiff-Appellee, v. Innocent U. UWAEME, Defendant-Appellant.

No. 91-5784.

United States Court of Appeals Fourth Circuit.

Argued July 9, 1992.

Decided Sept. 14, 1992.

As Amended Nov. 2, 1992.

Charles James Maxfield, Dunn, McCormack, MacPherson & Maxfield, Fairfax, Va., argued for defendant-appellant.

Julie Anne Blink, Office of the United States Atty., Alexandria, Va., argued (Kenneth E. Melson, U.S. Atty., Robert Montague Wilkinson, Sp. Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before NIEMEYER, HAMILTON, and WILLIAMS, Circuit Judges.

OPINION

WILLIAMS, Circuit Judge:

Innocent U. Uwaeme challenges his sentence for the importation and possession with intent to distribute 400 or more grams of heroin. 21 U.S.C. §§ 841(a)(1), 952(a), 960(b)(2)(A) (1988); United States Sentencing Commission, Guidelines Manual, § 2D1.1(c)(8) (Nov. 1990). He contends that the Government's estimate of the quantity of drugs is insufficiently reliable to support his sentence because the chemist who extrapolated the quantity did not know the variance or standard deviation of the sampling. ¹ Finding no error, we affirm.

I

On October 7, 1990, Uwaeme flew into Dulles International Airport. Customs agents suspected him of carrying drugs internally, and an x-ray revealed a large number of objects in his digestive tract. After Uwaeme passed the objects, they field-tested positive for heroin. The Customs service recovered eighty-five "capsules," each consisting of heroin bagged in a condom and wrapped with electrical tape.

At trial, the Government called Norman Newby, an employee of the Drug Enforcement Agency ("DEA"), to testify about the contents of the capsules. Newby had worked as a DEA forensic chemist for eighteen years and had frequently examined narcotics samples packaged similarly to the capsules. J.A. 65. The court accepted him as an expert chemist without objection. J.A. 60. Newby testified that he had tested a sample of the capsules and concluded that they contained heroin hydrochloride. He further testified that the final weight of heroin, excluding packaging, was 479.6 grams, J.A. 63, ² and that the reserve weight was 477.8 grams. ³

Newby used two methods to determine quantity. Although his testimony was not presented with great clarity, it appears that he first randomly selected ten of the eighty-five capsules, removed the packaging, and weighed the powder. He then multiplied that weight by 8.5. No testimony was elicited regarding the results of this test. For the second method, Newby testified that he "took the weight of the packaging material and multiplied it and subtracted it from the weight of the total. And that gave [him] the weight of the 479.6 grams." J.A. 66. ⁴ Newby testified that the method he used conformed to the standard procedure of his laboratory, J.A. 67, that the analyses he performed were "substantially similar to [his] training and past experience," and that his opinions expressed "a reasonable degree of scientific certainty," J.A. 63.

Uwaeme argues that the chemist's estimate of the quantity of heroin is irrelevant because the chemist did not know the standard deviation of the sample he selected. Without knowing that figure, Uwaeme argues, the court cannot determine the statistical accuracy of the estimate. ⁵ If the expert's estimated weight cannot be proved statistically accurate, then it is unreliable and thus could not have been "relevant" within the meaning of Federal Rules of Evidence 401 and 402 and should have been excluded.

The district court overruled Uwaeme's objections. The court determined that Newby's estimate was a "valid sampling," J.A. 69, and an "accurate measurement," J.A. 88. The court concluded that "there is just no question about the amount of the substance involved." J.A. 95.

II

Under the drug abuse prevention statutes at issue here, 21 U.S.C. §§ 841, 952 and 960, the quantity of a drug is not a substantive element of any of the crimes involved. ⁶ United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990). Rather, the weight or quantity of drugs is used to determine the base offense level under the Sentencing Guidelines. U.S.S.G. § 2D1.1. ⁷ As a sentencing factor, the Government must prove the quantity of heroin Uwaeme carried by only a preponderance of the evidence. United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990).

In reviewing sentences imposed under the Guidelines, we must give "due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous." 18 U.S.C. § 3742(e) (1988). Calculating the quantity of drugs is a factual determination that we review for clear error. See Goff, 907 F.2d at 1444.

Uwaeme objects to Newby's estimate only on the ground that it was not reliable enough to provide sufficient evidence of a quantity of 479.6 grams. ⁸ Thus, our decision turns on whether the district court clearly erred in finding by a preponderance of the evidence that the estimate was "reliable." If we determine that the figure was reliable, then the district court's sentence based on that figure is proper.

Uwaeme argues that district courts may not rely upon evidence of quantity that fails to meet the rigorous standard of statistical accuracy. Uwaeme urges that the expert's testimony does not meet the standard of statistical accuracy because the expert failed to determine the sampling's standard deviation. As we detail below, we discern no such demanding standard under the Sentencing Guidelines.

Neither the Guidelines nor the courts have required precise calculations of drug quantity. When no drugs are seized or the amount seized does not reflect the scale of the offense, the district court may "approximate" the quantity to be used for sentencing. U.S.S.G. § 2D1.4, comment. (n.2). "If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount." U.S.S.G. § 2D1.4, comment. (n. 1). Quantities determined under these methods do not approach scientific or statistical accuracy, and yet they constitute a valid basis for sentencing purposes.

Federal courts have endorsed other practices that yield only very rough estimates of quantity. For sentencing purposes, hearsay alone can provide sufficiently reliable evidence of quantity. United States v. Escobar-Mejia, 915 F.2d 1152, 1154 (7th Cir.1990); United States v. Roberts, 881 F.2d 95, 106 (4th Cir.1989); U.S.S.G. § 6A1.3, comment. Routinely, courts rely upon non-scientific evidence of quantity. See United States v. Wilson, 896 F.2d 856, 857-58 (4th Cir.1990) (defendant's non-scientific testimony regarding his involvement with 15 kilograms of cocaine); United States v. Sarasti, 869 F.2d 805, 807 (5th Cir.1989) (non-expert testimony of government informant regarding quantity of drugs). Some courts have relied upon a defendant's notebook entries to determine the quantity of drugs. See, e.g., United States v. Cagle, 922 F.2d 404, 406-7 (7th Cir.1991) (conspirator's notebook entries); United States v. Ross, 920 F.2d 1530, 1538 (10th Cir.1990) (dealer's notebook entries). The Guidelines also permit district courts to use street values to calculate an amount of drugs equivalent to large sums of money seized from defendants. United States v. Hicks, 948 F.2d 877, 881 (4th Cir.1991) (court properly used $32,000 per kilogram, the price agreed upon by the defendant, to convert $279,550 to 8.736 kilograms of cocaine); U.S.S.G. § 2D1.4, comment. (n. 2). District courts can calculate such "equivalents" using only fluctuating and transitory street values. Appellate courts have not reversed sentences relying on these methods, even though they are neither scientifically nor statistically precise.

Further, where authorities seize only drug components, sentencing courts may estimate the quantity of illegal drugs that those components can produce. See U.S.S.G. § 2D1.4, comment. (n. 2); see also United States v. Haar, 931 F.2d 1368, 1377-78 (10th Cir.1991) (district court could properly rely on defendant's voluntary stipulation, based on expert testimony, of the amount of methamphetamine that he could produce); United States v. Bertrand, 926 F.2d 838, 845-47 (9th Cir.1991) (district court did not err in estimating the potential production of methamphetamine from 75 kilograms of ephedrine and 8 pounds of red phosphorous); United States v. Havens, 910 F.2d 703, 705 (10th Cir.1990) ("[T]he trial court, upon proper testimony, may estimate the ultimate quantity of produceable [sic] drugs."), cert. denied, --- U.S. ----, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991). In Havens, two experts gave different estimates of the defendant's ability to produce methamphetamine. One calculated a production capacity of 300 grams of pure methamphetamine; the other calculated a capacity of 689 grams. The Tenth Circuit ruled that the district court properly sentenced the defendant according to a base offense level of 100 to 400 grams.

We also find instructive the fact that courts do not require scientific certainty in determining the chemical composition of an alleged controlled substance. See United States v. Schrock, 855 F.2d 327, 334 (6th Cir.1988) (the government may establish the identity of a drug through circumstantial evidence); United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.1976) ("[L]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identify [sic] of the substance involved in an alleged narcotics transaction."). Unlike the quantity of a drug, its chemical make-up is a statutory element of a drug offense, see 21 U.S.C. § 841(a)(1), and therefore must be proved beyond a...