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.
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.
NALBANDIAN, CIRCUIT JUDGE.
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.
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.
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).
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.
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.
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.
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.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 ...