NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0428n.06 No. 12-1779 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff - Appellee ,

v. WI L L I AM J ONES Def endant - Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR T HE E AS T E R

N D IS T R I C T OF MI CHI GAN

Before: KEITH, MARTIN, and COLE , Circuit Judges. P er Curiam

. Wil liam J ones pleade d gu i l t y t o attempted possession of two kilogr ams of

coca ine with the intent to distribute and unlawful use of a communica

tion facility . At sentenc ing, the Gover

nment arg ued that J ones should be held responsible for attempting to possess five kilogr ams of coca ine. The district court ultimately estimated the amount attributable to J ones to be betwee n 3.5 and five kilogr ams. J ones was s en t en ce d t o 128 months of imprisonment for his violations. On appeal , J o n es arg ues that the district court err ed reg arding the quantity of drug s attributable to him. Although he conce des that an approximation of dr ug quantity

is pe rmitted, he arg ues that the district c ourt should ha ve deter mined the drug quantity by the amount of money he broug ht to the transac tion, a calc ulation which would have g iven him a lower base offe nse level. He also arg ues that the district court err ed by apply ing a two- level enhanc ement for an alleg ed leade rship role. Be cause the rec ord sufficie ntly supports the conclusion that J ones soug ht more drug s than heNo. 12-1779

United States of America v . W illiam Jones Pag e 2 could af ford a nd that his sist er a cted a t his direction in safeguarding the money he int ended to use in his attempted purcha se, we AF F IRM the district court’s se ntence

.

BACK GR OUND Def e n d a n t Wi ll ia m Jo n e s is from Philadelphia, Pennsy lvania. Seeking a drug supplier, J ones contac ted a confide ntial source (“CS”) who in turn intro d u ce d him to Special Ag ent Steven Tempra no, an underc over opera tive with the Drug Enforc ement Ag ency (DEA)

. Ag ent Tempra no posed as a coca ine supplier capa ble of selling five kilogr am s o f co ca i ne. Throug hout May 2008, Def endant neg otiated by phone with the CS and Ag ent Tempra no to purcha se coca ine. Most of these phone calls wer e rec orded. The parties set the price at $21,500 per kilogr am. Ag ent Tempra no and J o n es arr ang ed to complete the purcha se in Michig an. The pair met on May 30, 2008 i n Age n t Tempra no’s vehicle. Rather than complete a coca ine deal, Def endant and his sister, who was on the

scene with him, were a

rre sted. Ag ents found $28,000 on Jones’ sister, Sheri J ones. Sheri d en i ed knowledg e that she had been involved in a drug transac tion. She was never prosec uted. On J anuar

y 9, 2009, Def

endant was charged wi th one count of attempti ng to possess

coca i n e wi t h i n t en t to distribute and two counts of unlawful use of a communication fac ility

. Def endant pleade d g uilty to all three counts without a Rule 11 ag ree ment on J une 5, 2009. A Presentenc e I nvestig ation Report (“PSI R”) was prepa red. I t attributed betwee n five and fiftee n k i l o gra m s of coca ine to J ones and calc ulated his base offe nse level at 32. After a three p o i n t reduc tion for acc eptanc e of responsibility , Def endant’ s total offe nse level was set at 27. The PSI R

rec ommended a sentenc ing rang e of 70

– 8 7 m o n t h s of imprisonment. I n response to the PSI R,No. 12-1779

United States of America v . W illiam Jones Pag e 3 Def endant reque sted a sentenc ing hear ing to contest the drug quantity

. Def endant asser

ted the drug quantity should have be en two kilog rams. On October 22, 2009, the district court held a sentenc ing hear ing. The Gover nment arg ued that five kilogr ams should have been attributed to Def endant and also soug ht a two-leve l leade rship enhanc ement. The only evidenc e offe red was the testi m o n y o f S p ecial Ag ent Tempra no, the underc over opera tive who posed as a drug supplier, and content of the rec orded conver sations from May 2008 betwee n Def

endant, Spec ial Ag ent Tempra no, and the CS. Evidence of

Drug Quan tity Quantity discussions between Ag ent Temprano, t he C S, and Jones vacillated betwe en two kilogr ams and five kilogr ams, with various amounts of coca ine potentially secur ed throug h “fr onting” (i.e., on cre dit). I n one May 15th conver sation, J ones asked the CS for three kilogr ams. J ones also reque sted that he be fronted some coca ine. His reque st in a May 15th conver sation was reje cted by the C S , wh o t o l d J o n es “no money , no honey .” I n a differe nt May 15th conver sation, J ones’ offer t o p ay fo r three kilogr ams and be fronted two was rejecte d by the C S who t old J ones “My friend [Age nt Tempra no] t o l d m e no, man. You g ive me three , I g ive y ou three .” I n a May 28th conver sation, J ones told the CS that he wanted five kilogr ams, but only if one kilogr am could be fronted. I n a May 30th conver s at i o n wi t h Age n t Tempra no, J ones said that he only wanted a couple of kilogr ams. L at er i n t he same conver sation, J ones told Ag ent Tempra no that he wanted “about five” kilogr ams but only had the money to pay for two. At the scene o f t h e d ea l , J o n es is initially rec orded say

ing that he wanted five kilogr ams with three fronted to him. L at er i n the

co n v er s at ion, he said that he wanted “at least three ” kilogr ams of coca ine. After this statemen t ,No. 12-1779

United States of America v . W illiam Jones Pag e 4 Ag ent Tempra

no’s wire a

p pare ntly stopped functioning

. Ag ent Tempra no testified that immediately b ef o re J ones was arr ested he “fina lly ag ree d that [he] would g ive [J ones] the five ki l o gra m s . ” Howeve r, t his statement was not submi t t ed wi t h the recorde d evidenc e. Ag ent Temprano’s DEA 6 For m, a repor t investiga

tion form submitt ed when ag ents implement cash seizures, only mentions that J ones ag ree d to buy

“some c ocaine ” without stipulating a qua ntity

. Evidence of

Leade rship R ole I n one call in which Ag ent Tempra no and J ones discussed a meeting place , Ag ent Tempra no hear d a fema le voice in the backg round of the call telling Def endant wher e the meeting would take place . When Jones and Ag ent Tempra no met in T empra

no’s ca r, Jones tol d Ag ent Tempra no that he was “g oing to ha

ve the g irl that came with him g o pick up the money ” and that “she was taking

car e of it for secur ity rea sons.” Soon there afte r, Sheri J ones, De fenda nt’s sister, exit ed the hotel

car ry ing a purse and heade d straig ht to Tempra no’s vehicle wher e J ones and Ag ent Tempra no wer e seate d. Acc ording to Ag ent Tempra no, J ones’ sister “g oes to the passeng er side wher e [Defenda nt]

was sitti ng . Mr. J ones rolls down the window. [S heri] opens her purse, shows me her white bag that was inside the pur se, puts the purse on Mr

. J ones’ lap, opens the white bag and shows me bundles of money that are inside the bag .” Ag ent Tempra no explained Sheri’s act as “fla shing” and testified that drug purcha sers “ver

y fre quently ” g ive their money to someone else to hold in order to “prote ct the money from other criminals who may want to steal it,” or “prote ct the money from the police so it doesn’t g et seized.”No. 12-1779

United States of America v . W illiam Jones Pag e 5 District Cou rt’s Rul ing R eg arding drug quantity , the district court decide d to estimate the amount attributable to Def endant at betwee n 3.5 and five kilogr ams, finding “th e Defendant was looking for up to five [ki logr ams] but not over that . . . the likely rea lity was that he wanted as much as he could g et .

. . at least 3.5, less than five, even though he at the plea colloq u y s ai d t wo . ” The district court also decide d to apply the l eade rship enhanc ement, finding Defenda nt “used [ Sheri] in this transac tion, flashing the cash.” The district court sentenc ed Def endant within the rec ommended g uideline rang e to a term of e ighty

months.

ANALYSIS Def endant app ea ls the district court’s drug quantity calc ulation and its application of the leade rship enhanc ement. His ar g uments are unavailing . We addre ss eac h one in turn. I. Drug Quantity Dete rm ination The district court estimated the amount attributable to Def endant to be betwee n 3.5 and five kilogr ams of coca ine. Def endant contends that the district court should have deter mined the quantity by the amount of money he broug ht to the transac tion. We disa g ree beca use the rec ord shows that Def endant repe atedly indicated that he wanted to posse ss mor e coca ine than he could immediately aff ord. “This court revie ws the district court’s finding s of fac t on the amount of coca ine attributable to a defe ndant for clea

r err or.” United States v. Samuels , 308 F.3d 662, 670 (6th Cir. 2002). “A dis t ri ct court’s finding is clea rly err oneous where, although there is evidenc e to support it, we areNo. 12-1779

United States of America v . W illiam Jones Pag e 6 left with the definit e an d fi rm conviction that a mistake has been committed.” United States v. Vasquez , 560 F.3d 461, 472 ( 6th Cir. 2009) (interna l quotation omit ted). The rec orded conver sations paint a blurred picture reg arding any fix ed drug quantity

. Quantity discussions between Age n t Tempra no, the CS, and J ones rang ed betwee n two and five kilogr ams, with various amounts of coca ine pote n ti a ll y s e c u red throug h fronting

. Ag ent Tempra no’s

own DEA 6 For

m only mentions that J ones ag ree d to buy “some coca ine” without identify ing a specific quantity

. The last quantity J ones reque sted in a rec orde d co n versa tion is “at least three ” kilogr ams of coca ine. Whil e the parties discussed fronting , the rec ord sug g ests that they never came to an ag ree ment about whether Ag ent Tempra no would front J ones any coca ine. Recorde d

conver sations show that J ones’ attempts to secur e various amo u n t s o f k i logr ams on cre dit wer e reje cted. Yet he still pushed to be fronted on the day of the deal, offe ring to pay for two kilogr ams if he could be fronted three

. As Ag ent Tempra no testified, “What I see [i n the transcr ipts] is that me and him are g oing back and forth in conver sation.” Given that the di s cu s s i o ns never appea red to settle on a fix ed quantity and Def endant continually attempted to obtain drug s on cre dit, we do not have a definite and firm conviction that the district c ourt was mistaken in its conclusion that J ones intended to walk a

way with more than he could immediately aff ord. The district court’s low end estimation of 3.5 kilogr ams seems to be a cautious choice betwee n “at least three ,” the last rec orded quantity advanc ed by J ones, and five, the highe st number that J ones discussed on the rec ord. Such an estimate is not clea rly err oneous when sever al quantities

are equally plausible. See United States v. W hite , 563 F.3d 184, 197 (6th Cir. 2009) (re manding and i n s t ru ct i n g that “[t] he district court must use conser vative estimates in the amount of coca ine itNo. 12-1779

United States of America v . W illiam Jones Pag e 7 attributes to the defe ndant as part of its base offe nse level, which means . . . taking the lesser of the two amounts to which [a witness] testified”) ; United States v. W alton, 908 F.2d 1289, 1302 (6th Cir. 1990) (“I f the exact amount [of drug s] cannot be deter mined, an estimate will suffice , but here also

a preponde ranc e of the evidenc e must support the estimate. Thus when choosing betwee n a number of plausible estimates of

drug quantity , none of which is more likely than not the cor

rec t quantity ,

a cour t must err on the side of

caution.”)

. J ones contends that the di strict court should have determined his base offense level by the amount of money he broug ht to the transac tion, $28,000. Given the ag ree d-upon price of $21, 500 per kilogr am, the amount attributable to J ones under such a calc u l at i o n would be less than two kilogr ams. I n support of this arg ument, J ones advanc es Application Note 12 of Section § 2D1.1 of the United States Sentencing Guidelines (ame nded as Application Note 5 in 2012). The Note sets the attributable quantity as “the agr ee d -u p o n quantity ” in offe nses involving ag ree ments to sell a controlled substance unless “the defe ndant establishes that the defe ndant did not intend to pr ovide

or purcha se, or was not rea sonably capa ble of providing or purcha sing, the ag ree d-upon quantity of the controlled substance.” U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.5 (2012). Howeve r, in the absenc e of a finding by the district court that Def endant and Ag ent Tempran o re ac h ed a neg otiated quantity , § 2D1.1 is inapposite. See Samuels , 308 F.3d at 670 (holding that § 2D1.1 was “not direc tly

on point” wher e “the re w as neve r an a g ree d-upon quantity of coc aine” ). For the fore g oing rea sons, we do not have a definite and firm conviction that the district court was mistaken in its quantity estimation.No. 12-1779

United States of America v . W illiam Jones Pag e 8 II. Leadership E nhan cem ent J ones challeng es the two-leve l leade rship enhanc ement the district court applied for the role his sister play ed in the attempted drug purcha se. The rec ord, howeve r, sufficie ntly su p p o rt s the conclusion that she acte d under his cont ro l and authority in safe g uarding the money Def endant intended to use in the a ttempted drug purcha se. A. Stand ard of Review The standard of revie w applicable to leade rship enhanc ements is unclea r. Vasquez , 560 F.3d at 473. Traditionally , leg al conclusions are revie wed de n ovo and fac tual deter minations are revie wed f

or cle ar e rror . Id

. Howeve r, “the Supre me Court held that a district cour t’s application of the Guidelines should be revie wed defe rentially rathe r than de novo ‘in light of the fac t-bound nature of the leg al decision.’” Id

. (quoting Buford v. United States , 532 U.S. 59, 66 (2001))

. Since that decision, the Six th Circuit has “re serve d judgme nt as to whether the district court’s application of § 3B 1.1 should be revie wed de fer entially or de novo .” United States v. Lalonde , 509 F.3d 750, 764 (6th Cir. 2007) (interna l quotations and alterations omitted). We need not resolve this question beca use Jones is unable to prevail eve n under de novo revie w. B. Legal F ram ework Section § 3B1.1( c) of the United S tates Sentencing Guidelines require s a two-leve l enhanc ement whene ver a defe ndant is f ound to be “an org anizer, leade r, manag er, or supervisor in any criminal activity

. . . .” U.S. Sentencing Guidelines Manual § 3B1.1( c); see also United States

v. Gort-Didonato , 109 F.3d 318, 321 (6th Cir. 1 9 9 7 ). A defe ndant only needs to have such a leade rship role over one participa nt t o q u al i fy for the enhanc ement. U.S. Sentencing GuidelinesNo. 12-1779

United States of America v . W illiam Jones Pag e 9 M an u al § 3 B1

. 1 cmt. n.2. “A ‘par ticipant’ is a person who is criminally responsible for the commission of the offe nse, but need not have been convicted.” Id

. at cmt. n.1. Fa ctors considere d in the leade rship deter

mination include, but are not limi ted to: the exercise of decision making authority , the nature of participa tion in the commission of the offe nse, the rec ruitme n t of acc omplices, the claimed rig ht to a larg er s h ar e o f the fruits of the crime, the deg ree of participa tion in planning or org anizing the offe nse, the nature and scope of the illega l activity , and the deg ree of control and a

uthority exercised ove r others. U.S. Sentencing Guidelines Manual § 3B1.1 cmt. n.4; see also Lalonde , 5 0 9 F. 3 d at 7 6 5

. The Gover nment has the burden of proving the elements of § 3B1.1 by a preponde ranc e of the evidenc e. Gort-Didonato , 109 F.3d a t 320. C. Appli cation Thoug h most of the evidenc e here is circ umstantial, it sufficie ntly supports the infere nce that J ones’ sister, Sher i J ones, held a nd flashed the drug money at Def endant’ s direction. All tog ether , a fema le voice was hear d articula ting a logistica l detail of the deal, J ones told Ag ent Tempra

no that a woman held his money , and Sheri approa ched Ag ent Tempra no in his vehicle shortly there afte r, “fla shing” bundles of cash at him. These fac ts, in tandem with Ag ent Tempra no’s testimony explaining t he si g nificanc e of such practices (i.e., t o protec t the m oney ), was s u ff

i ci ent t o s h o w t h at it was more likely than not that Sheri was a criminally responsible party over wh i ch Def endant exercised control. See United States v. Hicks , No. 98-5382, 1999 WL 1973672, *6 (6th Cir. Nov. 15, 1999) (unpublished table decision) (holding that male defe ndant exercised control over

a woman when he asked her to pick up a van that was supposed to contain coca ine, she knew the vanNo. 12-1779

United States of America v . W illiam Jones Pag e 10 would contain drug s, and the defe ndant had previously told an underc over ag ent that either he or a woman would pick up the dr ug s). J ones arg ues that Sheri is not a participa nt beca use she was never convicted. This arg ument is meritless. See U.S. Sentencing Guidelines Manual § 3B1.1 cmt. n.1 (“A ‘par ticipant’ is a person who is criminally responsible for the commission of the offe nse, but need not have b ee n convicted.” ). J ones also arg

ues that Sheri is not criminally resp o n s i b l e b eca use the rec ord contains no aff irm ative evidenc e that Sheri knew she was involved in a drug transac tion. I ndeed, upon arr est Sheri denied knowing that she had been involved i n a d ru g t ra nsaction. Howeve r, J ones never provided any cre dib l e re as o n to otherwise explain evidenc e which sug g ested that Sheri knew she

car ried the money for a drug transac tion. Nor does J ones offe r rea son to doubt Ag ent Tempra no’s 1 testimony

. See United St a t es v. Mo r i l l o , 8 F.3d 864, 872 (6th Cir. 1993) (holding that althoug h defe ndant claimed that he did not exercise control over a courie r, he offe re d n o t h i n g to rebut the claim that he exercised such control when, on at least one occa sion , co u ri er delivere d drug s on demand in response to a pag e from defe ndant). For these rea sons, J ones cannot preva il even under

a de novo revie w. CONCLUSION For the fore g oing r easons, we AF F IRM the district court’s se ntence

.

I n addre ssing why Sheri would approa ch a strang er’ s vehicle without hesitation and open 1 a bag , defe nse counse l offer ed that Sheri c ould have thoug ht Defe ndant was pur chasing a ca r.