United States v. Elcan

United States of America Plaintiff - Appellee v. Dexter Elcan Defendant-Appellant

No. 21-3229

United States Court of Appeals, Eighth Circuit

February 24, 2023

Unpublished

Submitted: October 17, 2022

Appeal from United States District Court for the Eastern District of Missouri

Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.

PER CURIAM.

Dexter Elcan pled guilty to possessing with the intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C § 841(a)(1). The district court^[1] sentenced Elcan to 240 months of imprisonment, which was below the calculated advisory United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") range of 360 to 480 months. Elcan appeals, arguing the district court miscalculated his base offense level, and thus the recommended sentencing range, by erroneously finding relevant conduct including several drug transactions involving at least 45 kilograms of methamphetamine. For the following reasons, we affirm.

"We review . . . 'relevant conduct' determinations for clear error, remembering that such a determination is fact-intensive and well within the district court's sentencing expertise and greater familiarity with the factual record." United States v. Smith, 944 F.3d 1013 1016 (8th Cir. 2019) (quoting United States v Tidwell, 827 F.3d 761, 764 (8th Cir. 2016)). This includes a district court's drugquantity determination. See United States v. McArthur, 11 F.4th 655, 659 (8th Cir. 2021). We will reverse such a finding only when "the entire record definitely and firmly illustrates that the lower court made a mistake." Id. (quoting United States v. Sainz Navarrete, 955 F.3d 713, 720 (8th Cir. 2020)). "The base offense level for drug offenses under the Guidelines is based upon drug quantity, which may include types and quantities of drugs not specified in the count of conviction if they are relevant conduct." United States v. Thomas, 760 F.3d 879, 888 (8th Cir. 2014) (quoting United States v. Ault, 446 F.3d 821, 823 (8th Cir. 2006)). "At sentencing, 'the government bears the burden of proving drug quantity by a preponderance of the evidence.'" McArthur, 11 F.4th at 659 (alteration omitted) (quoting Sainz Navarrete, 955 F.3d at 720).

Here, the government introduced evidence at the sentencing hearing that Elcan participated in sales of methamphetamine for several years and he involved multiple accomplices. In particular, the government introduced a cooperating criminal defendant, Thomas Hamilton, who had worked with Elcan in distributing methamphetamine. Hamilton detailed a years-long relationship between himself and Elcan during which he estimated Elcan sold between 100 and 200 pounds of methamphetamine to him. Hamilton's testimony was also consistent with Elcan's own statements to police that Elcan was personally responsible for shipping hundreds of pounds of methamphetamine into Missouri. We discern no clear error in the district court's drug-quantity finding.

Elcan advances two primary arguments attacking the district court's decision. First, Elcan argues Hamilton's testimony was unreliable hearsay and cannot support the finding that Elcan shipped these large quantities of methamphetamine. Elcan also argues that even if Hamilton's testimony could be believed, the transactions Hamilton described do not constitute "relevant conduct" for purposes of determining Elcan's base offense level because they were separate and distinct from the count of conviction to which he pled guilty. Neither argument has merit.

The district court based its decision largely on Hamilton's testimony, which the court found credible. "[A] district court's assessment of witness credibility is quintessentially a judgment call and virtually unassailable on appeal." United States v. Buford, 42 F.4th 872, 876 (8th Cir. 2022) (quoting United States v. Quintana, 340 F.3d 700, 702 (8th Cir. 2003)). That some of the information relied on included hearsay does not change our conclusion. "Hearsay-even uncorroborated hearsay- is admissible at sentencing if it has 'sufficient indicia of reliability' and the defendant is allowed to rebut or explain it." United States v. Wallace, 852 F.3d 778, 785 (8th Cir. 2017) (quoting United States v. Garcia, 774 F.3d 472, 475 (8th Cir. 2014)); see also Fed.R.Evid. 1101(d)(3) (providing the Federal Rules of Evidence generally do not apply to sentencing). Hamilton's testimony at the sentencing hearing was consistent with Elcan's own statements to police about his activities. Moreover, Elcan's attorney cross-examined Hamilton during the sentencing hearing. Considering this evidence, we conclude the district court's finding that the testimony was credible and admissible was not clearly erroneous.

We also reject Elcan's argument the ongoing scheme with Hamilton was separate from the circumstances...