In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1297

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICKEY CLARK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 1129—Joan B. Gottschall, Judge.

____________

ARGUED APRIL 15, 2008—DECIDED AUGUST 19, 2008

____________

Before CUDAHY, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge. Rickey Clark entered a blind guilty

plea with respect to one count of conspiring to possess

cocaine with intent to distribute, see 21 U.S.C. § 846, and

one count of possessing cocaine with intent to distribute,

see id. § 841(a)(1). The district court determined by a

preponderance of the evidence that Clark had possessed

between 15 and 50 kilograms of cocaine. At the sentencing

hearing, the government’s attorney repeatedly stated, in
2 No. 07-1297

error, that Clark was not subject to a mandatory minimum

sentence. The judge considered the 18 U.S.C. § 3553(a)

sentencing factors and imposed a sentence of 48 months’

imprisonment. The very next day, the government filed a

motion to correct the sentence, see Fed. R. Crim. P. 35(a),

based on the fact that the court was required to impose a

mandatory minimum sentence of ten years due to the

quantity of cocaine Clark possessed, see 21 U.S.C.

§ 841(b)(1)(A)(ii). The court agreed that the mandatory

minimum applied, and it amended the judgment to correct the sentence. Because the district court acted within

its power under Federal Rule of Criminal Procedure 35(a)

when it corrected Clark’s sentence to reflect the statutory

mandatory minimum, we affirm Clark’s sentence.

I. HISTORY

Rickey Clark was charged in a multi-count indictment

for his participation in a cocaine-distribution conspiracy.

Without a written plea agreement from the government,

Clark pled guilty to two of the charged counts: conspiring

to possess cocaine with intent to distribute, id. § 846, and

possessing cocaine with intent to distribute, id. § 841(a)(1).

Clark did not admit that his offenses involved a

particular quantity of cocaine, and he maintained throughout the proceedings that he possessed less than one

kilogram. He also argued that the quantity of drugs at

issue is an element of his 21 U.S.C. § 841 offense, and that

the Fifth and Sixth Amendments precluded subjecting

him to an enhanced sentence based on a drug quantity
No. 07-1297 3

that was not determined by a jury beyond a reasonable

doubt. At the drug-quantity hearing, the district court

pointed out that the Seventh Circuit has rejected similar

constitutional arguments, and proceeded to decide the

drug quantity by a preponderance-of-the-evidence standard.

The government called Juan Corral as a witness at the

drug-quantity hearing. Corral was a cocaine dealer who

had spent time in prison for drug-trafficking convictions.

Clark was one of Corral’s repeat, multiple-kilogram

customers between the months of February and June, 2002.

During that time period, Corral’s sales of cocaine to

Clark varied in quantity and frequency. Corral

experienced some “droughts,” during which Corral’s

suppliers could not provide him with cocaine. But, Corral

explained, Clark was one of his “preferred” customers—whenever Corral came off of a drought, Clark was

one of the first customers he would call.

Corral shared how he and Clark would arrange their

meetings. They would talk over the phone and arrange a

meeting place. They used code words to refer to kilograms

of cocaine, including the terms “bench press,” “reps,” and

“tickets.” Corral recounted one particular conversation

he had with Clark, on June 5, 2002, in which the two

men referred to the kilograms of cocaine as “tickets.” He

said that Clark had asked for five tickets (kilograms), but

that he was trying to get Clark to take six. Corral said he

had no doubt in his recollection that on June 5, he and

Clark talked about kilograms of cocaine.

In recalling his encounters with Clark, Corral stated that

the smallest amount of cocaine he sold Clark on one
4 No. 07-1297

occasion was three kilograms; the largest amount was

around eight kilograms. The amount of cocaine that Clark

most frequently purchased from Corral was five to six

kilograms. Corral stated that he was “100 percent sure”

that when Clark bought cocaine from him, he bought three

or more kilograms at a time. Corral recalled, “to the best of

[his] knowledge,” that he dealt with Clark about once a

month. Based on those recollections, Corral estimated that

he sold Clark “maybe 17 kilos” of cocaine during the fivemonth period. Corral thought that he dealt with Clark one

time in February, and maybe twice in March. But he could

not give estimates for April, May, or June. Corral did not

remember the specific dates on which he sold cocaine to

Clark. Corral explained how he arrived at the 17-kilogram

estimate, which he felt was conservative: “I dealt with him

from February 2002 to June 2002. And I [estimated] three

keys a month, that would come out to 15. And I know

for sure that he purchased at times more than three keys.”

When considering the testimony, the district court

explained that standing alone, Corral’s memory of the sales

to Clark was not “good enough to send somebody away

for.” The court then asked the government how many

conversations between Corral and Clark they had

recorded—“how many discussions about transactions is

the Government actually able to prove with telephone

calls?” The government then referred to the complaint

affidavit, which detailed some of the wiretapped conversations. During one such conversation, on May 14,

Corral and Clark discussed five kilograms of cocaine.

Another set of wiretapped conversations dealt with the

June 5 transaction to which Corral testified and addressed
No. 07-1297 5

five to six kilograms of cocaine. The district court determined that these two phone conversations corroborated

Corral’s testimony that his drug deals with Clark happened once a month.

The government, however, did not introduce into

evidence the actual transcripts or tapes of the wiretapped

phone calls. The court instead relied on summaries of the

wiretapped conversations contained in a complaint

affidavit that was attested to by a drug-trafficking agent

in the government’s efforts to show probable cause

before a magistrate judge. Clark objected to the district

court’s reliance on the complaint and its affidavit, because

“defendants are not included in terms of drafting the

complaint, can’t cross-examine the drafter of it, can’t

make any changes, can’t make any suggestions. It’s the

Government’s document which they submit.”

The district court stated that the summarized wiretapped conversations were “irrefutable evidence that

[Clark] was discussing relatively large deals, that’s deals

in the five-to-six kilogram range with Mr. Corral on two

occasions.” Those conversations proved to the judge that

Corral was “telling the truth in terms of the kind of customer that Mr. Clark was.” Even though the tapes were

not in evidence, the district court “assum[ed] the Government ha[d] this evidence that it [was] describing in

the complaint.” The court explained that the government’s summary of the taped conversations was, to some

extent, corroborated by Corral. Additionally, the court

explained, “This is an official court document. So I’m

assuming, for purposes of this drug quantity hearing,
6 No. 07-1297

where the standard is a preponderance of the evidence,

and I don’t think rules of evidence strictly apply, that

I can rely on the Government’s assertion that this complaint is based on surveillance.”

Clark also argued that the court should discredit Corral’s

testimony because Corral was an admitted perjurer who

had a deal with the government that was contingent on

him testifying to certain things. The district court did not

agree, and found that Corral was “trying to be truthful

and [ ] trying to be conservative,” even though his precision was less than satisfactory. Thus, while Corral’s

testimony alone was not precise enough, in the district

court’s view, to justify a 15-kilogram drug-quantity

finding, the combination of Corral’s testimony with the

summarized wiretaps convinced the court that Clark’s

offense involved more than 15 kilograms of cocaine.

Shortly after the drug-quantity hearing, Clark appeared

for sentencing on January 17, 2007. The district court

began the sentencing hearing with a question about

mandatory minimums: “Is there a mandatory minimum

that applies in this case?” The Assistant United States

Attorney (AUSA) replied, “There is not, Judge, and the

presentence investigation report is incorrect in regard to

that.” The AUSA explained that without the mandatory

minimum, Clark’s sentencing range was 108 to 135 months’

imprisonment; his Criminal History Category was I and

his offense level was 31. The court repeated its question:

“Okay. With no mandatory minimum?” The AUSA replied,

“Right.”

Clark argued for a sentence below the guidelines range

because of his personal characteristics, his steady employ-
No. 07-1297 7

ment background, and the fact that he had no prior

criminal convictions. Clark also argued that he deserved

a sentence below the guidelines range because of the weak

evidence demonstrating drug quantity. In response, the

government urged the district court to sentence Clark

within the guidelines range: “the Government would

just argue that a guideline range is appropriate here,

particularly given that the mandatory minimum does

not apply . . . .”

The district court viewed Clark’s cocaine-selling activities as a “significant mistake,” but stated that the “rest of

his life has been pretty good.” The court cited Clark’s

minor criminal history, his “huge job stability,” and the

fact that he is a family man, as factors indicating that he

is a person who “appears to have a good life and a positive life.” The court also took into consideration negative

factors—such as Clark’s gambling problems and his

new conviction for a serious felony drug offense—when

analyzing the sentencing factors under 18 U.S.C. § 3553.

The judge decided on a sentence of 48 months, to reflect

the “seriousness of the offense,” while giving Clark “an

opportunity to resume the positive aspects of his past

life when he is released.”

The very next day, the government submitted a motion

to correct Clark’s sentence, pursuant to Federal Rule of

Criminal Procedure 35(a). The government acknowledged the mistake it made at sentencing in insisting that

no mandatory minimum applied to Clark’s offense. The

government argued that the district court was required

to impose the mandatory minimum prescribed by 21
8 No. 07-1297

U.S.C. § 841(b)(1)(A)(ii), because of the 15 kilograms

attributed to Clark’s offense by the court. The district court

agreed that the court’s drug-quantity finding subjected

Clark to the statutory mandatory minimum. The district

court explained that, while “the court was able to determine the drug quantity based on a preponderance of the

evidence, [the court] does not believe that the evidence

would have been sufficient to sustain a decision beyond

a reasonable doubt.” The court exercised jurisdiction

under Rule 35(a) and resentenced Clark to ten years in

prison.

II. ANALYSIS

On appeal, Clark argues that the district court was not

authorized under Rule 35(a) to change his sentence. He

also argues that his Fifth and Sixth Amendment rights

were violated when the district court found, by a preponderance of the evidence, facts that subjected him to a

mandatory minimum sentence of ten years. Finally, he

argues that the district court’s calculation of the quantity

of drugs involved in his offense was clearly erroneous.

A. The district court’s correction of Clark’s sentence

Clark argues that the district court was not authorized

to correct his sentence under Rule 35(a) to reflect

the statutory mandatory minimum because, in Clark’s

opinion, the Rule does not allow a correction in a case

where the government waived the application of the

mandatory minimum at the sentencing hearing. This
No. 07-1297 9

presents a question of law that we review de novo. See

United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007)

(“Whether the district court followed the proper procedures after United States v. Booker in imposing [a] sentence

is a question of law we review de novo.” (internal citation

omitted)).

Rule 35(a) allows for “Correcting Clear Error”: “Within

7 days after sentencing, the court may correct a sentence

that resulted from arithmetical, technical, or other clear

error.” Fed. R. Crim. P. 35(a). The district court’s action in

this case—correcting the sentence the day after it was

imposed—falls within the parameters of Rule 35(a). The

error was not arithmetical or technical, but instead was

substantive—the court mistakenly failed to apply the

mandatory minimum sentence for Clark’s conviction, as

prescribed by Congress. See 21 U.S.C. § 841(b)(1)(A)(ii).

The scope of Rule 35(a) is narrow; the advisory committee notes indicate that the Rule should “extend only to

those cases in which an obvious error or mistake has

occurred in the sentence, that is, errors which would

almost certainly result in a remand of the case to the trial

court . . . .” Fed. R. Crim. P. 35 advisory committee’s note

to 1991 Amendments. The Rule does not give the district

court a second chance to exercise its “discretion with

regard to the application of the sentencing guidelines,” nor

does it allow for changes to a sentence based on the court’s

change of mind. Id. Additionally, the Rule should not be

used in a way that relaxes “any requirement that the

parties state all objections to a sentence at or before the

sentencing hearing.” Id.
10 No. 07-1297

Clark clings to this last limitation on Rule 35(a), and

claims that the government lost its opportunity to argue

for application of the mandatory minimum sentence by

not raising the issue at sentencing, and more significantly,

by affirmatively stating that no mandatory minimum

sentence applied to Clark’s conviction. With this argument,

Clark suggests that whenever the government (or the

defendant, for that matter) makes a mistake at a sentencing hearing, the court is bound by that mistake and

may not correct a sentencing error that stems from it.

Clark’s position might make sense if applied to discretionary considerations and enhancements or reductions

under the advisory guidelines—parties must state all of

their objections to the multiple facets of a sentence at the

sentencing hearing. See United States v. Porretta, 116 F.3d

296, 300 (7th Cir. 1997). Arguing after-the-fact, via a

Rule 35(a) motion to correct a sentencing error, that the

district court improperly applied a sentencing enhancement or reduction “flies in the face of the advisory committee’s admonition that it ‘did not intend that the rule

relax any requirement that the parties state all objections

to a sentence at or before the sentencing hearing.’ ” Id.

(quoting Fed. R. Crim. P. 35 advisory committee’s note

to 1991 Amendments).

But the situation here is different because the mistake

was more fundamental—the resulting sentence violated a

legislative mandate requiring that persons convicted of

Clark’s particular crime, with the amount of drugs involved, be imprisoned for a minimum term of ten years.

See 21 U.S.C. § 841(b)(1)(A)(ii). The district court repeatedly asked the AUSA whether there was a mandatory
No. 07-1297 11

minimum it should factor into Clark’s sentence, but

the AUSA erroneously stated that there was not. To

bind the court to the government’s error would not only

result in a windfall to this particular defendant—who is

not unlike other defendants who were correctly sentenced

to the mandatory minimum of ten years’ imprisonment—but would also directly contravene congressional

intent. Unlike the sentencing guidelines, which are advisory, see United States v. Booker, 543 U.S. 220, 264-65 (2005),

statutory mandatory minimums are just as they sound—

mandatory, see United States v. Cannon, 429 F.3d 1158, 1160

(7th Cir. 2005). To allow a party’s blunder at sentencing to

defuse the mandate of Congress—especially where the

Federal Rules of Criminal Procedure provide a means for

district courts to correct such blunders within seven days

of the sentence—would convert individual lawyers

into legislators each time a court mistakenly follows an

illegitimate recommendation. The statements of the

Supreme Court in Bozza v. United States, are equally

pertinent here: “The Constitution does not require that

sentencing should be a game in which a wrong move by

the judge means immunity for the prisoner. . . . The

sentence as corrected, imposes a valid punishment for

an offense instead of an invalid punishment for that

offense.” 330 U.S. 160, 166-167 (1947) (internal citations

omitted).

The mistake in this case that Clark desired to let lie

would have been reversed on appeal—district courts

must abide by statutory sentencing ranges. See United

States v. Roberson, 474 F.3d 432, 434 (7th Cir. 2007) (“The

Supreme Court’s decision in United States v. Booker, which
12 No. 07-1297

made the sentencing guidelines advisory, did not authorize

district judges to ignore statutory sentencing ranges. . . .

Booker confers no authority on judges to disregard statutes.” (internal citation omitted)). And the district court

was well aware of its authority and the repercussions of

such a mistake: “based on Seventh Circuit precedent,

I have no choice but to impose the ten-year mandatory minimum, and I think the failure to do so and the

propriety of doing so is so clear that it would almost

certainly result in a remand, which, I take it, is what I need

to find in order to have jurisdiction under Rule 35 to

correct the sentence.”

Clark continues, however, that the AUSA’s denouncement during the sentencing hearing of a mandatory

minimum foreclosed the possibility of a sentence correction

under Rule 35(a) by way of the waiver doctrine. His

argument is somewhat tenable in light of our language

in United States v. Byerly, 46 F.3d 694, 699 (7th Cir. 1995).

In Byerly, the government attorney told the district court

that it was within the court’s discretion to impose a

mandatory sentence. Id. at 696. The government was

wrong, but the government did not bring the error to the

court’s attention until over two years later, after the

defendant had (unsuccessfully) appealed his sentence,

and after we issued our mandate affirming his conviction. Id. at 697. The government filed a motion under the

old version of Rule 35(a), which allowed the district court

to “correct an illegal sentence at any time and [ ] correct a

sentence imposed in an illegal manner within the time

provided herein for the reduction of sentence,” that is,

within 120 days of an affirmance of the judgment. Id.
No. 07-1297 13

(quoting old Rule 35(a)). The government acted within

the proper time frame under the old rule, but we

decided that the district court could not correct the

illegal sentence, notwithstanding the language of old

Rule 35(a), because of the government’s waiver. Id. at 699-

700.

An attorney cannot agree in open court with a

judge’s proposed course of conduct and then

charge the court with error in following that

course. [The] AUSA [ ] bound his principal and

client, the United States, to the position that the

application of the Guidelines and a mandatory

minimum sentence to Byerley’s conviction was

discretionary with the district court. The government cannot now use old Rule 35(a) to overcome

the errors of its agent.

Id. at 700 (internal citation and quotation marks omitted).

Old Rule 35(a) was more expansive than the current

version of the rule—allowing for the correction of an illegal

sentence “at any time” up to 120 days after an affirmance

or dismissal of the appeal. Id. at 697. Thus, the Rule

allowed for corrections of sentences long after their

imposition, and in Byerly, the implications of such a broad

grant of corrective power were clear. The Rule contemplated allowing a party, the government, to sit back

throughout the direct appeal process with the possibility

of a Rule 35(a) correction in reserve. It made sense for us,

in terms of judicial economy and the finality expectations

of convicted defendants, to impose a limitation on old

Rule 35(a) in a case where the government reversed the
14 No. 07-1297

position it advocated to the district court, years after

sentencing.

But that functional limitation is no longer necessary

because Rule 35(a)’s revision includes a limitation that

protects the dual concerns of judicial economy and

finality: the district court must correct the sentence within

seven days, see Fed. R. Crim. P. 35(a), and it may not

correct the sentence after that time period, see United States

v. Baldwin, 414 F.3d 791, 797 (7th Cir. 2005) (“The Supreme

Court has held that these rules [including Rule 35(a)]

operate to deprive the court of authority to act after the

time period specified in the rule has elapsed.” (citing

Carlisle v. United States, 517 U.S. 416, 428 (1996)) (overruled

in part on other grounds by United States v. Parker, 508 F.3d

434, 441 (7th Cir. 2007)). Unfortunately for Clark, the

doctrine of waiver is no longer necessary, nor applicable to

the new Rule. Where a party makes a mistake at a sentencing hearing, which in turn leads to the imposition of a

sentence that is clearly wrong—for example, a mistake in

contravention of clear congressional intent or mandate—the district court may correct the sentence so long

as the correction complies with Rule 35(a) and occurs

within seven days. We emphasize that such mistakes

might be made by either party—if a defendant did not

realize at sentencing that he was not subject to a mandatory

minimum sentence, but the court erroneously applied one,

the defendant could make a motion for a corrected sentence within the seven-day time period. We also reiterate

that the scope of Rule 35(a) is narrow, and our reasoning

should not be read to allow parties to raise, after sentencing, arguments for or against enhancements or reductions under the guidelines that should have been raised
No. 07-1297 15

This opinion has been circulated among all judges of this 1

court in regular active service pursuant to Circuit Rule 40(e).

No judge favored a rehearing en banc. Judge Flaum did not

participate in the consideration of this case.

at the sentencing hearing. See Poretta, 116 F.3d at 300. To

the extent that this decision is inconsistent with our

prior ruling in Byerly, we overrule that portion of Byerly.

46 F.3d at 700.1

B. The imposition of a mandatory minimum sentence based on

judge-found facts

Clark contends that the quantity of drugs involved in

his offenses should have been determined beyond a

reasonable doubt, by a jury. We review this Apprendi issue

de novo. United States v. Seymour, 519 F.3d 700, 709 (7th Cir.

2008); see also Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). Clark was convicted under 21 U.S.C. § 841, which

prescribes in its subsections escalating penalties for

defendants depending on the quantity of a controlled

substance the defendant knowingly or intentionally

manufactured, distributed, dispensed, or possessed with

intent to manufacture, distribute, or dispense. 21 U.S.C.

§ 841(a)(1), (b); see also United States v. Hernandez, 330

F.3d 964, 979-80 (7th Cir. 2003). Because the amount of

cocaine involved in Clark’s conviction was over five

kilograms, he was subject to a mandatory ten-year term

of imprisonment. 21 U.S.C. § 841(b)(1)(A)(ii). This mandatory term was below the twenty-year maximum term
16 No. 07-1297

Clark could have received for a § 841 conviction absent

any drug-quantity determination. See id. § 841(b)(1)(C).

Clark acknowledges that we have held on multiple

occasions that judges may find facts, by a preponderance

of the evidence, that subject a defendant to a statutory

mandatory minimum. See United States v. Price, 516 F.3d

597, 605 (7th Cir. 2008); United States v. Jones, 418 F.3d 726,

732 (7th Cir. 2005); United States v. Knight, 342 F.3d 697,

714 (7th Cir. 2003); Hernandez, 330 F.3d at 980-82; see also

United States v. Collins, 510 F.3d 697, 701 (7th Cir. 2007). We

see no reason to depart from our precedent and continue

to hold that “Apprendi has no application where a drug

dealer is given a sentence at or below the maximum

provided in § 841(b)(1)(C).” Hernandez, 330 F.3d at 908;

see also United States v. Abdulahi, 523 F.3d 757, 760 (7th

Cir. 2008) (“Apprendi has no application to cases like

this one where the sentence is below the statutory maximum.”).

One of Clark’s arguments on this topic warrants brief

consideration. Clark encourages us to rethink our precedent because the Second and Ninth Circuits have adopted

contrary approaches to drug-quantity determinations

under § 841. In United States v. Gonzalez, 420 F.3d 111, 133-

34 (2nd Cir. 2005), the Second Circuit concluded that the

“drug quantities specified in 21 U.S.C. § 841 are elements

that must be pleaded and proved to a jury or admitted by

a defendant to support any conviction on an aggravated

drug offense, not simply those resulting in sentences

that exceed the maximum otherwise applicable for an

identical unquantified drug crime.” And in United States v.
No. 07-1297 17

Velasco-Heredia, 319 F.3d 1080, 1085-87 (9th Cir. 2003), the

Ninth Circuit decided that facts subjecting defendants

to mandatory minimums under § 841 must be proven to

a fact-finder beyond a reasonable doubt.

“While we carefully and respectfully consider the

opinions of our sister circuits, we are not bound by them.”

United States v. Williams, 184 F.3d 666, 671 (7th Cir. 1999).

“Our duty is to independently decide our own cases, which

sometimes results in disagreements with decisions of

the other circuits.” Atchison, Topeka & Santa Fe Ry. Co. v.

Pena, 44 F.3d 437, 443 (7th Cir. 1994). We have carefully

analyzed whether drug quantity constitutes an element

of an § 841 offense that must be proven to a jury beyond a

reasonable doubt, and have decided time after time that

neither the statute, nor Apprendi and its progeny, dictates

such a result. See, e.g., United States v. Martinez, 301 F.3d

860, 863-66 (7th Cir. 2002); see also Abdulahi, 523 F.3d at 760-

61; Hernandez, 330 F.3d at 980-81.

C. The district court’s drug-quantity findings

We review the district court’s determination of drug

quantity for clear error. United States v. Artley, 489 F.3d 813,

821 (7th Cir. 2007). “This is a highly deferential standard of

review and we refuse to ‘second-guess the sentencing

judge.’ ” United States v. Hankton, 432 F.3d 779, 789 (7th Cir.

2005) (quoting United States v. Cleggett, 179 F.3d 1051, 1059

(7th Cir. 1999)). The government had the burden of proving

drug quantity to the court by a preponderance of the

evidence, United States v. McGowan, 478 F.3d 800, 802 (7th
18 No. 07-1297

Cir. 2007); United States v. White, 360 F.3d 718, 720 (7th

Cir. 2004), but the evidence supporting the drug-quantity

determination need not have been limited to evidence

admissible at trial. White, 360 F.3d at 720; United States

v. Galbraith, 200 F.3d 1006, 1011-12 (7th Cir. 2000).

Clark argues that the district court should not have

relied on the testimony of Juan Corral because Corral was

an admitted perjurer and drug user who had lied previously to protect his own interests. This argument fails

because the district court specifically found Corral to be a

truthful witness, despite his inability to remember specific

details about his deals with Clark. A district court’s

determination of witness credibility is “entitled to great

deference and ‘can virtually never be clear error.’ ” White,

360 F.3d 718, 720 (7th Cir. 2004) (quoting United States v.

Blalock, 321 F.3d 686, 690 (7th Cir. 2003)). Further, a sentencing court may credit testimony that is “ ‘totally uncorroborated and comes from an admitted liar, convicted

felon, or large scale drug-dealing, paid government

informant.’ ” Id. (quoting Blalock, 321 F.3d at 690); see also

Galbraith, 200 F.3d at 1012; United States v. Rodgers, 245 F.3d

961, 968 (7th Cir. 2001) (“[T]he district judge was free to

credit Dexter. That Dexter was a convicted felon who stood

to gain from his testimony against Rodgers is by no means

a remarkable circumstance.”). Furthermore, it is clear from

the record that Corral’s testimony about his sales to Clark

never wavered. He maintained throughout the 17-

kilogram estimate, and consistently explained that Clark

usually purchased five kilograms, sometimes purchased

three, and at least once purchased eight. Unlike the situation in United States v. Beler, 20 F.3d 1428, 1433-34 (7th Cir.
No. 07-1297 19

1994), where the witness wavered in his testimony about

drug quantity, Corral’s testimony remained constant.

To compute his estimate of cocaine sales, Corral multiplied the minimum number of kilograms he sold to Clark

during a transaction (three kilograms) by the number of

months he dealt with Clark (five months)—15 kilograms. Because he remembered selling Clark more than

three kilograms “at times,” he added an additional two

kilograms to his total calculation of 17 kilograms, which

Corral stated was conservative. This method of computation, assuming credibility and reliability of the witness,

is permissible. A district court may “calculate drug quantity by taking a witness’s estimate of the amount of drugs

she usually purchased and multiplying it by the number

of times she bought drugs from the defendant.” White,

360 F.3d at 720; see also United States v. Durham, 211 F.3d

437, 444 (7th Cir. 2000).

Granted, Corral could not recall the specific details of

his deals with Clark, the exact number of occasions he

sold cocaine to Clark, or the amount of cocaine involved

in each sale. Clark argues that because Corral could not

remember details, his testimony lacked the required

“indicia of reliability” that would allow the district court

to rely on his statements. See Beler, 20 F.3d at 1433. Indeed,

the district court agreed that Corral’s recollections were

vague and not specific enough in themselves to support

a drug-quantity finding of over 15 kilograms. However,

the district court decided that the summaries of the

wiretapped phone conversations—contained in the

original complaint affidavit that was submitted to a
20 No. 07-1297

magistrate judge—corroborated Corral’s testimony. The

two phone calls from May and June corroborated Corral’s

testimony that Corral dealt with Clark about once per

month and that Corral sold Clark kilogram quantities of

cocaine.

The transcripts of those conversations were not admitted

into evidence, nor were the actual recordings—so Clark

objects to the district court’s reliance on the complaint

affidavit that summarized the conversations. The district

court explained that because the standard was only a

preponderance of the evidence, and the rules of evidence

did not apply, it could rely on the government’s assertion in an official court document that the “complaint

[was] based on surveillance.”

Section 6A1.3(a) of the Guidelines allows sentencing

courts to “consider information without regard to its

admissibility under the rules of evidence applicable at

trial, provided that the information has sufficient indicia

of reliability to support its probable accuracy.” The complaint affidavit was a document presented to a magistrate

judge and attested to by the drug trafficking agent. The

district court was entitled to credit the complaint as an

accurate summary of the government’s evidence about

Clark. There was nothing suggesting that the complaint was unreliable or that it contained inconsistencies,

which was the case in Beler, in which two sworn affidavits

contradicted one another. 20 F.3d at 1433-36; see also

Hankton, 432 F.3d at 790 (stating that the defendant did not

show how agent’s testimony about wiretapped conversations was unreliable, other than the fact that testimony

was inadmissible hearsay).
No. 07-1297 21

The summaries of the wiretapped conversations supported Corral’s testimony, which never wavered with

respect to how much cocaine Corral estimated he sold

to Clark. We agree with the district court that the complaint affidavit contained the requisite indicia of reliability for the district court to factor its contents into the

drug-quantity determination. Between Corral’s testimony

and the corroborating summaries of the wiretapped

conversation, the district court did not clearly err in

finding by a preponderance of the evidence that Clark’s

§ 841 offense involved more than 15 kilograms of cocaine.

III. CONCLUSION

The amended judgment of the district court correcting

Clark’s sentence is AFFIRMED.

8-19-08