United States Court of Appeals

For the Eighth Circuit

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No. 15-3950

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Victor Defawn Jones

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: September 23, 2016

 Filed: December 9, 2016

[Unpublished]

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Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

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PER CURIAM. 

Victor Defawn Jones appeals his 188-month sentence for possession with

intent to distribute 500 grams or more of a mixture or substance containing

methamphetamine and 50 grams or more of actual methamphetamine. Jones argues
that the district court erred in (1) calculating his base offense level as 34 based on 1

its drug-quantity finding, and (2) attributing three criminal history points to Jones

based on a prior state robbery sentence. We affirm.

I. Background

Jones was arrested at an informant’s house following controlled, recorded

telephone calls over the course of the prior week between the informant and Jones.

Officers had the informant order methamphetamine from Jones. Officers seized two

packages of methamphetamine from the room where they arrested Jones. The first

package contained six ounces of methamphetamine and was found in Jones’s bag.

The second package contained one kilogram of methamphetamine and was found in

a desk drawer. 

Jones pleaded guilty to possession with intent to distribute 500 grams or more

of a mixture or substance containing methamphetamine and 50 grams or more of

actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). At

sentencing, he admitted to possessing with intent to distribute the six-ounce package

of methamphetamine but denied possessing the additional kilogram of

methamphetamine. He objected to the presentence investigation report’s (PSR)

inclusion of this amount in the drug-quantity calculation. The PSR had reported

1,074.70 grams of actual methamphetamine based on laboratory analysis. 

To establish drug quantity, the government presented the testimony of Officer

Anthony Ballantini of the Des Moines Police Department, a six-year veteran of

narcotics investigations and the lead investigator in the case. Officer Ballantini

testified that he received information from Officer Nicholas Berry of the Tri County

Drug Enforcement Task Force following Officer Berry’s arrest of Brian Ausborn.

The Honorable John A. Jarvey, Chief Judge, United States District Court for

1

the Southern District of Iowa.

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Upon his arrest, Ausborn had in his possession one pound of methamphetamine and

over $10,000 in cash. Ausborn identified his methamphetamine source as “Tamari”

who lived on Diehl Street in Des Moines, Iowa. Officer Ballantini later identified

“Tamari” as Tabari Miller. Officer Berry relayed text messages to Officer Ballantini

that he had seen on Ausborn’s cell phone between Ausborn and Miller. These text

messages showed that Ausborn obtained a two-pound quantity of methamphetamine

from Miller in early September 2013 for $32,000. Ausborn once met Miller’s source,

who Ausborn described as a light-skinned black male of possible Hispanic origin who

drove a white truck. 

Officer Ballantini obtained a search warrantfor Miller’s residence. During that

search, officers discovered evidence consistent with methamphetamine distribution.

Miller cooperated and identified Jones as his source. Miller provided Jones’s

telephone number to Officer Ballantini and said that Jones drove a black BMW and

a white truck. According to Officer Ballantini, the evidence showed that Miller was

the middle man for drug transactions between Jones and Ausborn. Officer Ballantini

learned from Miller that Miller had been purchasing methamphetamine from Jones

since February 2013, “starting off with an ounce or two, moving [his] way up to a

pound to two pounds and the latest being a kilo.” 

Miller subsequentlymade controlled, recorded telephone callsto Jones.Officer

Ballantini was present during those phone calls and instructed Miller “to order the

quantity of methamphetamine that he normally ordered from . . . Jones.” During these

calls, Miller and Jones used code words and never expressly referred to

methamphetamine or money. During the first controlled call, Jones asked Miller if he

wanted “the full order.” According to Officer Ballantini, Jones’s reference to the

“regular” or “full” order meant two pounds of methamphetamine. During the second

controlled call, Miller asked Jones to “try and get me more than that.” Officer

Ballantini testified that “get[ting] a little more” meant “one kilogram.” Jones told

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Miller that “Friday I’ll be heavy.” The plan was for Jones to contact Miller on

Thursday, prior to his return to Iowa on Friday. 

Officer Ballantini obtained a search warrant to determine the location of

Jones’s cell phone. As a result, Officer Ballantini learned that Jones’s cell phone was

located in Katy, Texas. Officers used the location information to track the movements

of Jones’s cell phone traveling north toward Iowa. After Jones returned to Iowa, on

September 27, 2013, an officer saw him stop at a gas station off the interstate. Jones

was driving his white truck and pulling an enclosed trailer. The patrol officer stopped

Jones for a traffic violation and obtained Jones’s consent to search his truck and

trailer; however, the vehicle search proved unsuccessful.

2

Subsequently, Officer Ballantini checked Jones’s cell phone location a final

time and saw that it was near Miller’s residence. Officer Ballantini and Officer

Mathis drove to Miller’s residence, where they saw Jones standing by his white truck 3

parked in Miller’s driveway at 5:46 p.m. Miller was not home. Officers contacted

Miller and instructed him to meet with Jones and tell Jones that Miller could not get

in touch with Ausborn and that the deal had taken too long and would not happen. 

Miller met with Jones at Miller’s residence. Miller called Officer Mathis, who

was posing asBrian Ausborn. Miller talked to Officer Mathis “about the deal that was

supposed to go down earlier in the day,” but “Officer Mathis kept explaining to

[Miller] that the deal was off.” Miller was speaking in code, and the officers had

Officer Ballantini believed that a second vehicle transporting the

2

methamphetamine from Texas to Des Moines was traveling with Jones. This was the

manner in which Jones had previously transported drugs. Officers did find three cell

phones, two of which Jones let officerslook through. On one of these phones, Officer

Ballantini saw text messages between Jones and Miller matching the text messages

that Miller previously described to Officer Ballantini. 

Officer Mathis’s first name is not given in the record. 3

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difficulty understanding what Miller was communicating. After Miller met with

Jones, officers followed Miller to a predetermined location; no one followed Jones.

At about 9:00 p.m., Officer Ballantini met with Miller at the predetermined

location. Miller explained that “he wastrying to tell [the officers] that the drugs were

already at the house, that the kilo was there and that it was in the office where the

deals normally go down.” Additionally, Miller revealed that “Jones had another

pound of methamphetamine in his black bag and that he needed a scale to break down

the additional pound.” After obtaining a scale for Miller to give to Jones, officersthen

returned to the predetermined location near Miller’s residence and had Miller make

a recorded phone call to Jones. Miller told Jones “the dude is going to have your

money,” and Jones replied that he would return in 35 minutes and no longer needed

the scale. 

Officer Ballantini had “pinged” Jones’s phone and learned that he was at a

hotel in Des Moines. As a result, one officer went to the hotel to set up surveillance

on the white truck located in the parking lot. Another officer conducted surveillance

on Miller’s residence from a shed near the rear of the residence. Officer Ballantini

“pinged” the phone again and noticed that the phone was in the vicinity of Miller’s

residence, which caught Officer Ballantini by surprise because Jones’s white truck

was still parked at the hotel. The officer in the shed saw Jones arrive at Miller’s

residence at 10:15 p.m., approximately 75 minutes after officers had last seen Jones.

Jones was driving a black BMW. Jones carried a black bag with handles into Miller’s

residence. 

Officer Ballantini subsequently apprehended Jones at Miller’s residence with

the methamphetamine during a staged warrant execution. Officer Ballantini

discovered Jones near the drugs. He saw “Jones quickly turn and make a motion like

he was throwing something.” Officer Ballantini found a black bag with handles and

the six-ounce quantity of methamphetamine under a desk to the left of the doorway.

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The kilogramof methamphetamine, which Miller said thatJones left during an earlier

visit, was located in the bottom drawer of that desk. According to lab reports, the two

packages of methamphetamine contained a total of 1,074.70 grams of actual

methamphetamine. 

On another desk in the same room, an officer discovered plastic baggies, a

digital scale, and one of Jones’s cell phones. Jones had $5,745 in U.S. currency, his

wallet, and additional cell phones on his person at the time of his arrest. In Jones’s

vehicle, officers recovered a bank receipt with Jones’s name and address from May

21, 2013, showing an available balance of $11,577.60. They recovered 12 separate

$1,000 money bands stamped “July 17, 2013.” Officer Ballantini testified that Jones

“didn’t have an income to support $12,000.” Officers also found receipts showing

$29,500 in deposits during September 2013. Reviewing bank account records for

Jones and his wife, Officer Ballantini discovered five separate deposits of $5,000 or

more (totaling at least $25,000) into Jones’s wife’s bank account in August and

September 2013. Both Ausborn and Miller told officers that Jones had been

distributing methamphetamine since February 2013, and Officer Ballantini testified

that “[c]ash is a common denominator in drug trafficking.”

Officer Ballantini testified that the street value of one ounce of

methamphetamine in 2013 was “[a]bout $1,500.” According to Officer Ballantini,

Miller told him that Jones had sold all but six ounces of the one-pound quantity of

methamphetamine (ten ounces), which Jones had left at Miller’s residence the first

time that he visited. Miller told officers that Jones said the cash that he was arrested

with ($5,745) came from the earlier sale of methamphetamine. Officer Ballantini

testified that ten ounces of methamphetamine would have sold for more than $5,700,

and he stated that Jones may have “fronted” methamphetamine distributed earlier.

While officers found some U.S. currency during the first search of Jones’s truck

earlier in the day, they did not find an amount near $5,000. Miller and Ausborn

indicated that Jones previously fronted methamphetamine to Miller, who collected

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money from Ausborn and then paid Jones. Miller was expected to pay Jones $32,000

for the two pounds of methamphetamine. And the kilogramof methamphetamine that

Miller had previously obtained from Jones cost $36,000. 

Following Officer Ballantini’s testimony, Jones urged the district court to use

a base offense level of 30 based upon the six ounces of methamphetamine that Jones

admitted to possessing with intent to distribute. But the district court attributed the

entire 1,074.70 grams of methamphetamine to Jones. In support of its finding, the

district court stated:

He as the source was independently identified by Mr. Ausborn and Mr.

Miller who provided detailed information concerning the source’s

identity. Add to that the recorded phone calls, the cellphone information,

the seizure of the kilo and his cash and the fact that it’s consistent with

the plan all along lends the court to believe that the government has

demonstrated that he was the source for the kilo and that, in addition to

the six ounces, is attributable to him.

Based on its drug-quantity finding, the district court calculated a base offense

level of 34. 

Jones also challenged the three criminal history points that the PSR attributed

to him for his prior state robbery sentence. Jones had been sentenced to 25 years in

prison for first-degree robbery in Iowa on May 31, 1988. While incarcerated for that

offense, Jones committed and pleaded guilty to conspiracy to commit assault with

intent to commit a serious injury in violation of Iowa law. Jones was sentenced on

March 4, 1997, to serve two years in prison on the conspiracy charge. Pursuant to

Iowa Code § 901.8, that sentence was imposed consecutive to Jones’s robbery

sentence. Jones agreed with the PSR’s recitation of the dates that Jones was

incarcerated. He challenged only the attribution of criminal history points to the

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robbery conviction based upon when Jones’s term of incarceration for the robbery

was actually discharged.

The Iowa Department of Corrections (IDOC) records show the same release

dates for the robbery and conspiracy convictions: work release on November 4, 1999;

parole on May 26, 2000; and discharge on March 14, 2002. At sentencing, the

probation officer testified that she spoke with a representative from the IDOC who

stated that because the sentencing for the convictions in paragraphs 32

and 33 were imposed consecutively, there’s not a theoretical discharge

date for the robbery conviction in paragraph 32. So the defendant’s

discharge date for both the robbery and conspiracy to commit assault are

May 26 of 2000, the date that he was paroled.

After consideration ofthisinformation and arguments ofthe parties, the district

court found that the probation office correctly attributed three criminal history points

for the robbery conviction. This provided for a total of 12 criminal history points and

a criminal history category of V.

The district court, using a base offense level of 34, less two levels for

acceptance of responsibility, and a criminal history category of V, identified Jones’s

advisory Guidelines range as 188 to 235 months’ imprisonment. Jones argued for a

downward variance to a sentence near 120 months, the statutory minimum. The

government requested a five-month upward variance from the advisory Guidelines

range, resulting in a sentence of 240 months. 

The district court sentenced Jones to 188 months’ imprisonment—the bottom

of the Guidelines range.

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II. Discussion

On appeal, Jones argues that the district court erred in (1) calculating Jones’s

base offense level as 34 based on its drug-quantity finding of 1,074.70 grams of

methamphetamine, and (2) attributing three criminal history pointsto Jones based on

his prior state robbery sentence. 

A. Drug-Quantity Determination 

Jones argues that the district court’s drug-quantity determination was based

solely upon Miller’s unreliable hearsay. Jones maintainsthat Miller’s statementsthat

Officer Ballantini relayed at trial were not corroborated and that overwhelming

evidence refutes the reliability of the statements. According to Jones, the evidence

showed that he was going to purchase six ounces of methamphetamine and was not

the source of the methamphetamine seized. Jones asserts that if the government

wanted to rely on Miller’s version of events, it should have offered Miller’s sworn

testimony atsentencing and permitted Jones’s counsel to cross-examine Miller. Jones

additionally argues that Ausborn’s hearsay statements were insufficient to establish

drug quantity because Ausborn never mentioned anything about the one-kilogram

package of methamphetamine. 

We review for clear error a district court’s drug-quantity determination. United

States v. Colbert, 828 F.3d 718, 729 (8th Cir. 2016). We “revers[e] ‘only if the entire

record definitely and firmly convinces usthat a mistake has been made.’” Id. (quoting

United States v. Gonzalez–Rodriguez, 239 F.3d 948, 953 (8th Cir. 2001)).

Section 6A1.3(a) of the Guidelines provides that

[w]hen any factor important to the sentencing determination is

reasonably in dispute, the partiesshall be given an adequate opportunity

to present information to the court regarding thatfactor. In resolving any

dispute concerning a factor important to the sentencing determination,

the court may consider relevant information without regard to its

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admissibility under the rules of evidence applicable at trial, provided

that the information has sufficient indicia of reliability to support its

probable accuracy.

“In determining the relevant facts, sentencing judges are not restricted to information

that would be admissible at trial.” U.S.S.G. § 6A1.3 cmt. As a result, the court may

consider “[a]ny information . . . , so long as it has sufficient indicia of reliability to

support its probable accuracy.” Id. This means that “[r]eliable hearsay evidence may

be considered.” Id. But the court is prohibited from considering “[u]nreliable

allegations.” Id. We have held “that the Guidelines’ standard for the consideration of

hearsay testimony at sentencing meets the appropriate constitutional test and fulfills

the Confrontation Clause’s basic purpose of promoting the integrity ofthe factfinding

process.” United States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992) (citing White v.

Illinois, 502 U.S. 346, 356–57 (1992)). 

“A district court may rely on hearsay evidence for sentencing purposes, aslong

as it has sufficient indicia of reliability to support its probable accuracy.” United

States v. Moralez, 808 F.3d 362, 368 (8th Cir. 2015) (quotation omitted). “[A]

sentence based on hearsay will be sustained if the testimony is reliable enough.”

United States v. Tucker, 286 F.3d 505, 510 (8th Cir. 2002) (citing U.S.S.G.

§ 6A1.3(a) (2000)). “Testimony by a law enforcement officer regarding statements

made by co-defendants may be sufficient to attribute drug quantities to a defendant.”

United States v. Alvarez, 168 F.3d 1084, 1088 (8th Cir. 1999) (citing United States

v. Kenyon, 7 F.3d 783, 785 (8th Cir. 1993)). 

We conclude that Officer Ballantini’s testimony regarding statements that

Miller and Ausborn made is sufficient to attribute 1,074.70 grams of

methamphetamine to Jones. See id. First, Ausborn and Miller provided credible

information to law enforcement about Jones’s identity. Ausborn described Miller’s

source as a light-skinned black male who drove a white truck. Consistent with

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Ausborn’s statement, Miller identified Jones as the source of his supply who drove

a white truck. Miller also provided law enforcement with Jones’s correct telephone

number. Law enforcement corroborated this information when it obtained a search

warrant to determine Jones’s cell phone location and discovered him driving a white

truck that ultimately arrived at Miller’s residence on September 27, 2013. 

Second, Miller and Ausborn provided consistent and credible information

concerning drug quantities of methamphetamine. Text messages on Ausborn’s cell

phone between Ausborn and Miller showed that Ausborn obtained a two-pound

quantity of methamphetamine from Miller in early September 2013 for $32,000.

Consistent with these text messages, Officer Ballantini learned from Miller that

Miller had been purchasing methamphetamine from Jones since February 2013,

“starting off with an ounce or two, moving [his] way up to a pound to two pounds and

the latest being a kilo.” Recorded phone conversations between Miller and Jones

corroborated these drug quantities.

Third, the recorded calls also corroborated Miller’s and Ausborn’s statements

that Jones was the source of the supply. In the second recorded call, Miller asked

Jones “what’s the ticket on that?” Officer Ballantini testified that “what’s the ticket

on that” means “the listed price for it, for the quantity of drugs.” Miller’s question to

Jones makes no sense if Miller were the source of the supply. Instead, this question

demonstrates that Miller was purchasing the drugs from Jones. 

Fourth, Jones’s actions at the time that law enforcement entered Miller’s

residence corroborate the information that Miller provided. Jones acted consistently

with the plan that he and Miller had made during the recorded telephone calls by

showing up at Miller’s residence. Miller had told law enforcement that the drug deals

with Jones “normally go down” in the office, and he stated that the office is where the

kilogram of methamphetamine was that Jones had previously delivered. Miller “also

stated that . . . Jones had another pound of methamphetamine in his black bag and that

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he needed a scale to break down the additional pound.” When Jones arrived for the

second time at Miller’s residence, the officer hidden in the shed saw Jones carrying

a black bag with handles. And, when law enforcement executed the ruse search

warrant, Officer Ballantini found Jones “in the office where the drugs were located.”

Officer Ballantini then observed “Jones quickly turn and make a motion like he was

throwing something.” Officerssubsequently discovered Jones’s black bag underneath

the desk where the kilogram of methamphetamine waslocated. The six-ounce baggie

of methamphetamine appeared to have fallen out of the black bag. Both the six-ounce

baggie and the kilogram of methamphetamine were packaged in the same type of

Ziploc baggies with the same color marks. 

We thus conclude that the district court did not clearly err in making its drugquantity determination. 

B. Criminal History 

Jones also argues that the district court incorrectly determined his criminal

history category by counting a sentence that was imposed and completed prior to the

15-year look-back period of U.S.S.G. § 4A1.2(e)(1). According to Jones, in 1988, he

was sentenced in Iowa state court for a robbery offense. While incarcerated, Jones

was convicted of a separate offense, which extended his period of incarceration by

two years. Under applicable Iowa law, Jones asserts that he wasrequired to complete

his robbery sentence before he began the two-year sentence, which meant thatJones’s

robbery sentence ended in May 1998, more than 15 years before the instant offense

(September 27, 2013). Jones contends that although the IDOC never marked a

theoretical discharge date in 1998 for the robbery sentence, the district court should

have nonetheless followed the applicable state law in construing Jones’s sentencing

history. Under that construction, Jones asserts, the district court should not have

attributed three criminal history points to his criminal history based on the robbery

sentence, resulting in a criminal history category of IV rather than V.

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Section 4A1.1(a) of the Guidelines advises the court to “[a]dd 3 points [in

determining the defendant’s criminal history category] for each prior sentence of

imprisonment exceeding one year and one month.” See also U.S.S.G. § 4A1.1(a) cmt.

n.1 (“Three points are added for each prior sentence of imprisonment exceeding one

year and one month.”). In turn, U.S.S.G. § 4A1.2(e)(1) provides:

Any prior sentence of imprisonment exceeding one year and one month

that wasimposed within fifteen years of the defendant’s commencement

of the instant offense is counted. Also count any prior sentence of

imprisonment exceeding one year and one month, whenever imposed,

that resulted in the defendant being incarcerated during any part ofsuch

fifteen-year period.

(Emphases added.) The issue is whether Jones’s incarceration for robbery extended

into the 15-year look-back period under § 4A1.2(e)(1). 

Here, both parties agree that the instant offense occurred in September 2013;

therefore, the relevant look-back period would include September 1998. Jones was

paroled from his robbery sentence on May 26, 2000—well within this 15-year lookback period. But Jones objected to the PSR’s use of that conviction for criminal

history points, arguing that his robbery sentence was discharged on May 26,

1998—not May 26, 2000—because he had to complete his robbery sentence prior to

beginning his conspiracy sentence. Because Jones objected to the PSR’s attribution

of three criminal points to him based on the robbery sentence, the government

presented the testimony of the probation officer to prove the necessary facts. See

United States v. Waddell, 831 F.3d 958, 960–61 (8th Cir. 2016) (“When a defendant

objects to facts in a presentence report, a district court may not rely on those facts to

sentence the defendant unless the government first proves the facts by a

preponderance ofthe evidence.” (citing United States v. Bowers, 743 F.3d 1182, 1184

(8th Cir. 2014)). The probation officer testified:

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I spoke with a representative of the Iowa Department of Corrections on

September 15, 2015, and that representative stated that because the

sentencing for the convictions in paragraphs 32 [robbery] and 33

[conspiracy to commit assault] were imposed consecutively, there’s not

a theoretical discharge date for the robbery conviction in paragraph 32.

So the defendant’s discharge date for both the robbery and conspiracy

to commit assault are May 26 of 2000, the date that he was paroled.

“Courts . . . have looked to state law to define when a state sentence has

expired.” United States v. Renfrew, 957 F.2d 525, 526 (8th Cir. 1992). Iowa law in

effect at the time of Jones’s March 4, 1997 conspiracy sentencing stated, in relevant

part:

If a person is sentenced . . . for a crime committed while confined in a

detention facility or penal institution, the sentencing judge shall order

the sentence to begin at the expiration of any existing sentence. If the

person is presently in the custody of the director of the Iowa department

of corrections, the sentence shall be served at the facility or institution

in which the person is already confined unless the person is transferred

by the director. If consecutive sentences are specified in the order of

commitment, the several terms shall be construed as one continuous

term of imprisonment.

Iowa Code § 901.8 (1995) (emphasis added). In turn, the Iowa statute addressing

calculation of sentence reductions in effect at the time of Jones’s conspiracy

sentencing provided:

903A.7 Separate sentences. 

When an inmate is committed under several convictions with

consecutive sentences, they shall be construed as one continuous

sentence in the granting or forfeiting of good conduct time.

Iowa Code § 903A.7 (1995) (emphasis added).

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The statutes in effect at the time of Jones’s conspiracy sentencing make clear, 4

consistent with the probation officer’s testimony and the IDOC documents, that

Jones’s consecutive sentencesfor robbery and conspiracy constituted one continuous

term of imprisonment. Therefore, he was not paroled from his robbery sentence until

May 26, 2000. This date falls within the 15-year look-back period of U.S.S.G.

§ 4A1.2(e). As a result, we hold that the district court correctly calculated Jones’s

criminal history category by attributing three criminal history pointsto his prior state

robbery sentence. 

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

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Sections 901.8 and 903A.7 were both amended on May 7, 1997, after Jones’s 4

March 4, 1997 conspiracy sentencing. 

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