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United States v. Armstrong

United States Court of Appeals, Sixth Circuit

April 3, 2019

United States of America, Plaintiff-Appellee,
v.
David Jamar Armstrong, Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:17-cr-00022-1-David L. Bunning, District Judge.

         ON BRIEF:

          Anne Buckleitner, SMIETANKA, BUCKLEITNER, STEFFES & GEZON, Grandville, Michigan, for Appellant.

          Charles P. Wisdom, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, Anthony J. Bracke, UNITED STATES ATTORNEY'S OFFICE, Ft. Mitchell, Kentucky, for Appellee.

          Before: DONALD, LARSEN, and NALBANDIAN, Circuit Judges.

          OPINION

          NALBANDIAN, CIRCUIT JUDGE.

         David Armstrong sold a confidential informant about three grams of heroin during three controlled buys. He pleaded guilty to one count of distribution, and the district court sentenced him to thirty-seven months in prison. That sentence was based, in part, on the district court's finding that he sold around seventy grams of heroin to the informant over the course of two years. He contends that the district court's finding was erroneous. We affirm.

         I.

         After conducting several staged drug deals with an informant, the Government charged David Armstrong with three counts of distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). The informant paid Armstrong $140 for about one gram of heroin during each deal. Armstrong eventually pleaded guilty to one of the three distribution charges.

         At sentencing, the parties disagreed over the quantity of heroin that the court should use to calculate Armstrong's sentencing range. Under the Sentencing Guidelines, district courts must consider the defendant's entire relevant conduct beyond the scope of the conviction. See U.S.S.G. § 1B1.3(a)(2). That means a defendant convicted of selling one gram of heroin as part of a larger drug-trafficking operation faces a higher sentence than someone who-though convicted of the same offense-had no other criminal activity. Here, the informant claimed she purchased about one gram of heroin from Armstrong 70 times over eighteen to twenty-four months. So the Government argued that the court should calculate his sentencing range based on 70 grams of heroin. See U.S.S.G. § 2D1.1(c)(10). The probation office agreed. But Armstrong claimed he only sold the informant heroin a few times and in much smaller quantities. He asked for an offense level based on fewer than ten grams. See U.S.S.G. § 2D1.1(c)(14).

         The district court took evidence to resolve the dispute. Neither Armstrong nor the informant testified, but the court considered their out-of-court statements to make its findings. On top of that, Joe Schulkens, one of the two officers who handled the informant, testified about his conversations with her before setting up the controlled buys.

         Schulkens handled the informant for the second and third buys. He came in after the first purchase because the officer originally handling the matter left the force. When Schulkens took over, he interviewed the informant about her history with Armstrong. The informant told him she "had been buying heroin from him for a year and a half to two years." During that period, she purchased a gram of heroin about 70 times. Schulkens explained that they based the controlled purchases off this information to avoid drawing suspicion-asking an informant to purchase an unusually large quantity of drugs might tip the suspect off. This apparently worked. The informant completed two more purchases of heroin (one week apart), each for about a gram.

         On cross, Armstrong's counsel tried to undermine the credibility of Schulkens's claim that he patterned the controlled buys off the informant's history. Armstrong stated in a letter to the court that he sold the informant heroin only a few times before the controlled buys, and that each time she bought much less than one gram. But on these three occasions, Armstrong said, the informant told him she was buying for a friend. That lessened any suspicion he might otherwise have had. Schulkens admitted that he did not know what the informant told Armstrong and it "could very well be" that she told him this story. R. 33, Sentencing Hr'g Tr. at 17, PageID 181.

         The district court judge then made a credibility determination. He found that the informant's out-of-court statements were more reliable than Armstrong's. Several factors went into this decision, which the judge stated on the record. First, unlike Armstrong, the informant had no motive to exaggerate the number of prior transactions. Schulkens testified that the informant was "working off charges" and that she received no additional benefit from inflating her history with Armstrong.[1]Id. at 14, PageID 178. Armstrong, on the other hand, had a strong incentive to lie to reduce his Guidelines range. Second, the police corroborated the informant's claim that she purchased heroin in one-gram quantities by conducting three transactions for the same ...


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