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United States v. Doss

United States District Court, W.D. Virginia, Roanoke Division

October 30, 2017



          Elizabeth K. Dillon United States District Judge

         The defendant Brandi Ann Doss raises two objections to the presentence investigation report (PSR). First, she challenges the drug weight that the PSR attributes to her. Second, she challenges the PSR's assessment of one point for the conviction in Paragraph 98. Both objections were argued before the court, and the parties have provided additional briefing addressing them. Having carefully considered the supplemental briefing as well as the entire record, the court will overrule the first objection, but sustain the second one, concluding that the conviction in Paragraph 98 should not be scored.

         I. BACKGROUND

         Doss was charged in two counts of a superseding indictment along with a number of co-defendants. Count One charged her with conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Count Three charged her with distribution of methamphetamine on or about June 1, 2016, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). She pleaded guilty to both counts on July 6, 2017, and the PSR was prepared. As noted, she has raised two primary objections that are pending before the court: a challenge to the drug weight attributable to her for purposes of setting the base offense level, and a challenge to the scoring of the conviction referenced in Paragraph 98 of the PSR. The court addresses each in turn.


         A. Objection to Drug Weight

         The charged conspiracy began in or about April 2015 and continued to on or about June 6, 2016. But all of the credible evidence before the court shows that Doss's participation was limited to the period of January 2016 to June 2016.[1] During that time period, Doss was romantically involved with Curtis Hilton, who was a leader and organizer of the conspiracy. Hilton was charged earlier in a separate indictment and recently has been sentenced. At his sentencing, he was held responsible for at least 15 but less than 45 kilograms of methamphetamine.

         The PSR computed Doss's base offense level as a 36 based on finding her accountable for at least 15 kilograms but less than 45 kilograms of methamphetamine. At Doss's sentencing hearing, though, there was credible testimony from Hilton about slightly reduced amounts, and a correction from him about certain prior statements that referenced kilograms, but should have referenced pounds. In the light most favorable to Doss, the revised amounts that the PSR should hold Doss responsible for-as testified to by the Probation Officer and urged by counsel for the United States-are as follows:

• 16 pounds (or 7.25748 1kilograms) of methamphetamine contained in the secret compartment of a GMC Envoy shipped by Hilton's supplier in January 2016, which was sold through various of Hilton's distributers through approximately March 2016.
• A total of 24 pounds (or 10.8862 kilograms) of methamphetamine that Hilton received from April to early June of 2016, approximately an eight-week period. This was based on Hilton's testimony that he received packages totaling no less than three pounds per week for those eight weeks.

         Taken together, these two amounts resulted in a revised total by the Probation Officer of 18.1437 kilograms, which is still within the 15-to-45-kilogram range.

         Before addressing Doss's objection, the court addresses first the evidence supporting the three-pounds-per-week estimate by the probation officer, which was based primarily on Hilton's testimony. In Doss's supplemental sentencing memorandum, defense counsel stated that his handwritten notes from the hearing show that Hilton testified he received approximately one to two pounds per week at first and then in May, or closer to his arrest, the amounts increased to three pounds per week. The court has reviewed a rough draft of the sentencing transcript, and Mr. Hilton's testimony was inconsistent on this point.

         Mr. Hilton testified on direct examination that he was initially receiving a pound or two in each package about twice a week. Based on those per-package amounts, the weekly amount initially would have been two to four pounds per week. He then said that as it got closer to his arrest in early June, the amount was probably "a little lower than that, " but "[n]ot too much lower" and more "like three pounds a week." So, Hilton was suggesting that the amounts decreased closer to his arrest.

         Then, on cross-examination, he agreed with defense counsel that he could not be certain how much he was receiving in April, May, and June, and he agreed that "the greater amounts maybe closer to three didn't come until towards the end when [he was] arrested." So, it "increased as [he] went along." When counsel for the United States pointed out this discrepancy on redirect, Hilton acknowledged that he was not certain as to precise amounts, but was trying to be as honest as he could. He emphatically stated on redirect, though, that he knew he received no less than three pounds per week during that entire time period.

         In the United States's supplemental memorandum, it continues to argue, as it did at the hearing, that the three-pounds-per-week amount should apply, which would still place Doss in the 15-to-45-kilogram range if those amounts and the amounts in the GMC Envoy are both attributable to her. But the United States also acknowledges that "there could be a calculation" which holds Doss accountable for the lesser amount of at least 5 kilograms but less than 15 kilograms. That calculation would be based on weekly amounts lower than three pounds per week in the April to June time-frame.

         The court has carefully considered Hilton's testimony and believes that, even in the light most favorable to defendant, the estimate used by the probation officer is reasonable and appropriate. The government bears the burden to "prove by a preponderance of the evidence the quantity of drugs for which a defendant is responsible." United States v. McGee,726 F.3d 263, 271 (4th Cir. 2013). In determining amounts of drugs for sentencing purposes, though, the court is not required to make "precise calculations, " especially when no drugs are seized; the court may instead "'approximate' the quantity to be used for ...

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