United States v. Rollerson

7 F.4th 565

UNITED STATES of America, Plaintiff-Appellee,

v.Keenan ROLLERSON, Defendant-Appellant.

No. 20-2258

United States Court of Appeals, Seventh Circuit.

Argued May 26, 2021

Decided July 30, 2021

Barry D. Glickman, Lara Langeneckert, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Beau B. Brindley, Blair T. Westover, Attorneys, Law Offices of Beau B. Brindley, Chicago, IL, for Defendant-Appellant.

Before Easterbrook, Rovner, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

A jury convicted defendant Keenan Rollerson on drug and firearm charges but acquitted him on other drug charges. He appeals only his sentence, arguing that the district court erred by increasing his Sentencing Guideline range based on drug activity for which he was either acquitted or never charged. Specifically, Rollerson claims that the prosecution did not present sufficiently reliable information that he sold heroin and fentanyl to an informant during four controlled drug buys for which he was not charged. He also asserts that those uncharged controlled buys and other drugs for which he was acquitted were not "part of the same course of conduct ... scheme or plan" as his offenses of conviction. U.S.S.G. § 1B1.3(a)(2). We affirm Rollerson's sentence because the conduct at issue was supported by sufficiently reliable information and was relevant to his convictions. To be sure, the record at sentencing on the controlled buys was sparse. But at least in the absence of contradictory evidence, a police officer's affidavit attesting that the buys actually occurred provided the "modicum of reliability" that is needed to find by a preponderance of the evidence that Rollerson committed those additional crimes. See United States v. Helding , 948 F.3d 864, 871 (7th Cir. 2020).

I. Factual and Procedural Background

In July 2016, the Drug Enforcement Administration (DEA) began investigating Rollerson's drug dealing activities in Indianapolis. The following spring, the DEA and local law enforcement used a confidential informant to arrange controlled drug buys from Rollerson. The government asserts that on four occasions, Rollerson sold drugs to the informant at an Indianapolis apartment that he controlled: twenty-five grams of heroin on March 31, twenty-five grams of heroin on April 3, twenty-four grams of fentanyl on April 17, and thirty grams of fentanyl on April 24. The police used these controlled buys to secure search warrants for the apartment and for Rollerson's home.

On April 27, 2017, after setting up surveillance at both addresses, the police stopped Rollerson for speeding. They recovered a gun and marijuana from his car. Rollerson admitted the gun and marijuana were his. He also acknowledged that he was a convicted felon. When told that police were about to search his residences, Rollerson said he would cooperate and that, although his son was home, Rollerson himself "was the only one who had something to do with the drug sales."

Police then took Rollerson to his home, where they found over $150,000 in cash that Rollerson admitted were drug proceeds. Rollerson was also in possession of a key to the stash house apartment. He told police that they would find multiple kilograms of heroin hidden there. The search of the apartment actually uncovered four kilograms of fentanyl, fifty-two grams of heroin, ninety-seven grams of cocaine, and two hundred thirty-six grams of tramadol, as well as digital scales, multiple firearms, and mail addressed to Rollerson at that address.

On May 2, 2017, the government filed a criminal complaint against Rollerson based on an affidavit by DEA Task Force Officer Marc Campbell. In the affidavit, Officer Campbell described the course of the investigation and the contraband found at Rollerson's home and apartment. The affidavit also included a brief description of the controlled buys, attesting that "Between March 2017 and April 2017, DEA/IMPD utilized an IMPD Confidential Source (CS) to conduct multiple controlled purchases of heroin from ROLLERSON in Indianapolis, Indiana. Each of these controlled purchases resulted in the seizure of heroin and fentanyl." These controlled buys, however, were not included in the government's charges—which focused instead on the drugs and guns uncovered at the stash house apartment.

A grand jury indicted Rollerson on eight charges: Possession with Intent to Distribute Fentanyl (Count 1), Heroin (Count 2), Cocaine (Count 3), and Tramadol (Count 4), as well as Unlawful Possession of Firearms by a Convicted Felon (Counts 5–8). The case went to trial, where the jury convicted Rollerson on Counts 2 and 5–8 (heroin and firearm offenses) but acquitted him on Counts 1, 3, and 4 (the fentanyl, cocaine, and tramadol).

The Presentence Investigation Report (PSR) recommended a Sentencing Guideline range of 262 to 327 months for Count 2. This range was based upon a quantity of drugs that included not only the heroin in the offense of conviction but also the fentanyl, cocaine, and tramadol from the acquitted counts and the four controlled buys used to obtain the search warrants. (The different types and amounts of drugs were all converted to a total "Converted Drug Weight" of 10,445.75 kilograms using the drug conversion tables in § 2D1.1, Note 8.)

At sentencing, Rollerson objected to the PSR's drug quantity, arguing (1) that the record contained no reliable information supporting the uncharged controlled-buy amounts, and (2) that neither the controlled buys nor the acquitted fentanyl, cocaine, and tramadol were relevant to his conviction for heroin. Without these uncharged and acquitted drug quantities, Rollerson's guideline range for Count 2 would have been a much lower 110 to 137 months.

The district court overruled Rollerson's objections and explained its reasons for including both the uncharged and acquitted drug amounts in calculating the guideline range. As to the controlled buys, Judge Hanlon said:

[I]n Paragraph 12 of the presentence report there is some detailed information about the controlled purchases. It lays out that there were four controlled purchases involving Fentanyl and heroin. It lays out the quantities involved. We also have the affidavit that was filed in support of the criminal complaint, which also discusses the controlled purchases.

On that basis, the court concluded "that the information ... relating to controlled buys is not unsupported or naked allegations" but rather "reliable" and "established by a preponderance of the evidence." The judge added that "there isn't any evidence that I have been made aware of from [Rollerson's] counsel that would cause me to call into question the reliability of what's contained in the report." The judge then explained that these controlled buys also constituted "relevant conduct" under U.S.S.G. § 1B1.3(a)(2) because (1) they involved heroin, the same controlled substance as the offense of conviction; (2) they occurred at the same stash house as the convicted offense; and (3) they occurred within one month of the offense of conviction.

As for the fentanyl, cocaine, and tramadol for which the jury acquitted Rollerson, the judge explained that the trial evidence connecting Rollerson to the stash house—including but not limited to the mail addressed to him and the key in his possession—established his possession of those drugs by a preponderance of the evidence. The judge also found that this acquitted conduct was still relevant conduct for sentencing because it was all part of the same course of drug trafficking at the stash house. This was especially true, the judge said, because two of the controlled buys involved fentanyl, one of the substances found at the same stash house soon after that.

Accordingly, the judge sentenced Rollerson within the recommended guideline range: 276 months for Count 2, as well as 120 months for each gun charge (Counts 5–8), all to run concurrently. On appeal, Rollerson renews the arguments he raised at sentencing, that the district court erred by including both the uncharged and acquitted drug amounts in his guideline calculation.

II. Reliability

"A criminal defendant has a due process right to be sentenced based on accurate information.... [W]here the district court sentences a defendant based on the drug-quantity guidelines, it must find the government's information sufficiently reliable to determine drug quantity by a preponderance of the evidence." Helding , 948 F.3d at 870, citing United States v. Tucker , 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and United States v. Lister , 432 F.3d 754, 762 (7th Cir. 2005). Rollerson claims that the uncharged and acquitted drug amounts should not count toward his guideline range because the prosecution failed to prove them with reliable information by a preponderance of the evidence.

We review the substantive reasonableness of a sentence under an abuse-of-discretion standard, but we "must first ensure that the district court committed no significant procedural error, such as ... selecting a sentence based on clearly erroneous facts...." Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We have thus said that "whether the district court followed the proper procedures in imposing sentence is a question of law that we review de novo ." United States v. Young , 863 F.3d 685, 688 (7th Cir. 2017), citing United States v. Mendoza , 510 F.3d 749, 754 (7th Cir. 2007). Here, though, the "significant procedural error" that Rollerson points to is the enhancement of his sentence "based on clearly erroneous facts." Gall , 552 U.S. at 51, 128 S.Ct. 586 (emphasis added). So ultimately we ask whether the district judge clearly erred in finding that the government proved Rollerson's conduct by a preponderance of the evidence. See United States v. Sandidge , 784 F.3d 1055, 1061–63 (7th Cir. 2015) (affirming sentence enhancement; district court "did not commit clear error" in finding "sufficiently reliable"...