# United States Co urt of Appeals

For the Seventh Circui t Chic ago, I lli nois 60604
Arg ued Ju ly 10, 2013 Deci ded August 29, 2013

Before

WILLIAM J. BAUER, Circ uit Judge
JOHN DANIEL TIND ER , Circ uit Judge
DAVID F. HAMILTON, Circui t Judge

No. 12-3702

UNITED STATES OF AMERI CA, Plaintiff-Appellee ,

v.

IVAN C. THOMAS , Defen dant-Appellant

. Appeal from the United Stat es Di stric t Courtfor t he Nort hern Di stric t of Illinoi s, Eastern Di vis i on.

No. 10 CR 792-1 Samuel Der-Yeghiayan, Judge

.
O R D E R

Iva n Thomas appeals hi s 235-month sentence for hi s ro le in a large -sc ale drug conspi racy. He challen ges the di stric t court’s findings that he di stribut e d mo re than 10 kilograms of heroin and acted as a leader or or gani zer of hi s drug-di strib uti on ring, but becau se these findings are supporte d by the re cord we affi rm the sentence.

Between 2005 and 2010, Thomas supp li ed heroin and crack cocaine to street dealers i n the Conserv ative Vi ce Lords gang. Oper atin g from hi s girlfri end’s apartment, Thomas cut, wei ghed, and bagg e d t he d r ug s, set their sale pric e, and collected proceeds from the “runners” who deli ver ed the drugs to dealers. NON PRECEDENTIAL DISPOSITION To be ci ted only in acc or dance w i th Fed. R. App. P. 32.1N o
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Thomas was arr ested in 2010 after supp lyin g crack to an undercove r a g e nt a nd a confi denti al informant. He pleaded gui lty to conspi racy to possess wi th intent to di strib ute contro lled sub stances, 21 U.S.C. §§ 841(b) (1)( A), 846, and three c ounts of possess i on w i th intent to di strib ute contro lled sub stances, id

. § 841(a)( 1). The pr o ba t io n offi cer who prepar ed the presentence repo rt calc ulated a gui delines range of 235 to 293 months, after conclu ding that Thomas was responsible for about 20 kilograms of heroin and 156 gr ams of crack, see U.S.S .G. §§ 2D1.1(a) (5), (c) (2), and had acted as a lea d e r o r o r g a nizer of the drug conspi racy, see id

. § 3B1.1(a). Thomas objecte d to the quanti ty of heroin, asserti ng that he was responsible for a max imum of only three kilograms, and that a coconspi rat or ’s testim ony to the contrar y was unreli able. He further maintai ned that the four-poin t adjustment for hi s ro le in the offense was un su p port ed by evidenc e that he exer ci sed authority o ver hi s cocons pi rat or s.

Ov er Thomas’s objection, t he di stric t court adopted the presentence repo rt ’s calculati ons and sentenced hi m to 235 months on the conspi racy count and 6 0 mo nt hs
concu rr ently on the other three counts. In deter mining that Thomas was responsible for 20 kilograms of heroin, the court not ed that hi s coconspi rat or , Anthony Gr ant, had testifi ed credibly about drug quanti ties both at the sentencing of one of Thomas’s codefendants and before the gr and jury

. Th e co ur t also credi ted the sworn plea declaration of another codefendant, Reynaldo Davi s, who admi tte d to personally di strib uti ng about a kilogr am
o f heroin on Thomas’s behalf duri ng the same period. The court rej ected Tho ma s’ s arg ument that the leader/ o r gani zer adjustment was unw arr anted, noting that Grant’s testim ony and Davi s’s plea declaration made clear that both men work ed for Thomas, who
ov ersaw drug tr ansac tionsand collected the proceeds from hi s runners.

On appeal Thomas fi rst arg ues that the di stric t court err ed by rely ing on information from Grant and Davi s in deter mining that he was responsi ble for 10 kilograms or more of he ro in. The court, Thomas asserts, should have presumed Davi s’s statements unr e l iabl e becau se, as a codefendant, Davi s mi ght have been atte mpting to shi ft blame from hi mself
or to curr y favo r wi th the prosecuti on. Thomas also poin ts out inc onsi stenci es in Grant’s statem e nts to l a w e n for c e m e n t th a t h e s ays undermine Grant’s credibi li ty, and he maintai ns that the court should have di sregar ded the statements of Grant and Davi s as
unc or ro borat ed hearsay.

Thomas’s arg ument mi sstates the law of thi s ci rcui t. Co nt r a r y to hi s asserti ons, no presumpti on of unreli abi li ty attaches to the statements of codefendants or coconspi rat or s in the sentencing context

. See United States v. Isom , 635 F.3d 904, 907–08 (7th Ci r. 2011) (“The presumpti on of unreli abi li ty for non -testi fyi ng coconspi rat or s i s premi sed on the defendant’s right at tr i al to confront hi s accu sers,
. . . but the Confro ntation Clause does not apply at sentencing.”); see also United States v. Platt e, 577 F.3d 387, 393 (1st Ci r. 2009); UnitedN o
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States v. Moncivais , 492 F.3d 652, 659–60 (6th Ci r. 2007). There is no clear er ro r even when the di stri c t court credi ts the “tot ally unc or ro borat ed” testim ony of an “admi tte d li ar.” Isom , 635 F.3d at 907–08; see United States v. Johnson , 489 F.3d 794, 797 (7th Ci r. 2007); United States
v. White, 360 F.3d 718, 720 (7th Ci r. 2004); see also Unite d S ta te s v. Gant, 663 F.3d 1023, 1029–30 (8th Ci r. 2011); United States v. Powell , 650 F.3d 388, 392 (4th Ci r. 2011); United States
v. Nava, 624 F.3d 226, 231 (5th Ci r. 2010). And indeed, the statements of a single, potent i ally bi ased wi tness wi ll supp or t a di stric t court’s findings of fact. See United States v. Zehm , 217 F.3d 506, 514 (7th Ci r. 2000); see also United States v. Ngatia, 477 F.3d 496, 500 (7th Ci r. 2007).

The ca se s Tho mas ci tes are inapposi te. He invok es Lee v. Illinois , 476 U.S. 530, 545 (1986), and United States v. House, 551 F.3d 694 (7th Ci r. 2008), for the propo si tion that the statements of a codefendant or coconspi rat or are subject to a presumpti on of unreli abi li ty for purposes of sentencing. But Lee inv o l v e d t he admi ssi on of a codefendant’s hearsay confes si on at tr i al, and House holds only that sentencing courts may consi der hearsay statements that ar e supported by “suffi ci ent indi ci a of reliabi li ty.” House, 551 F.3d at 698. Here, the di stric t court e x p l a ined that i t had observe d Grant’s testim ony fi rsthand and found i t credi

ble, noting that Grant testifi ed in detail reg ardin g the amount and frequency of Thomas’s drug dis tr ibuti on.
Thomas also characterizes Grant’s statements a s u n re l i ab l e b e c ause they addressed the

v olume of hi s drug sales but not the duration that he sold at thi s vo lume. We di sagree
. Gr ant testifi ed that he di strib uted heroin as a “runner” on Thomas’s behalf for about 1 8 months, di strib uting at least 14 gr ams of heroin per w eek. He also stated that duri ng this period he handed off a mini mum of 84 gr ams of heroin per week to another runner, Erv i n Hewing. Based on thi s testim ony alon e, G ran t and Hewing moved more than 7.5 kilograms of heroin ov er the course of the conspi racy. In addi tion, Davi s ple aded gui lty to di strib uti ng at least o ne kilogram of heroin, and according to Grant’s testim ony he had di strib uted at least 100 gr ams per week. Grant also testifi ed that he someti mes dropped off bund les of between 3.6 and 14.4 gr ams of heroin to each of three other runners, who in turn sub mi tte d weekly proceeds to Thomas. Although i t i s unc lear how frequently these other
runners rec e iv e d d e l iv eries or for how lo ng they work ed for Thomas, the recor d readily supp or ts the c onclus i on that Thomas di strib uted at least 10 kilograms of heroin based on conservat i ve fi gures and the assu mpti on that the runners occasi onally di strib uted more than Grant’s low-end esti mates. See United States v. Flem ing, 676 F.3d 622, 627 (7th Ci r. 2012) (endorsing di stric t courts’ use of “reasoned sp e cu l a ti on a n d reasonab le esti mati on” of drug quanti ties ) (qu otat i on marks and ci tation omi tte d).

Thomas also arg ues that the di stric t court i mproper ly increased hi s offense level based
on the finding that he was a leader or or gani zer of the drug conspi racy. As wi th hi s drug-N o
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quanti ty arg ument, he maintains that the upward adj ustment was unw arr anted becau se i t w as based on the dubi ous statements of Davi s and G rant. He furt her m aintai ns that he di d not exer ci se the contro l or authority necess ary to supp or t the adjustment becau se he received drugs from hi gher ranking members of the conspi racy and becau se Grant cut hi m out of some of the drug tr ansac tions

. At most, Thomas says, he should have received only a three -level i ncrease und er U.S .S.G. § 3B1.1(b) for acting as a manager or supervis or
.
The recor d supp or ts the di stric t court’s finding that Thoma s a ct e d as a leader or
or gani zer. The court was entitled to rely both on Grant’s testim ony that he r e cr uited work ers to the conspi racy on Thomas’s behalf and on the statements of an agent from the Bureau of Alcohol, Tobacc o, Firearms and Explosi ves who was interv i ewed in connecti on wi th the presentence repo rt and who described how Thomas supervis ed hi s runners, collected drug proceeds, negot i ated wi th buyers, and set the sale pric es for hi s drugs—all acti viti es that wi ll supp or t a finding that a defendant acted as a leader or or gani zer. See United States v. Mendoza, 576 F.3d 711, 720 (7th Ci r. 20 0 9 ) (n o tin g that defendant played
coor dinati ng or or gani zing ro le by contro lling sale pric e of cocaine and recruiting another member t o t he conspi racy); United States v. Skoczen , 405 F.3d 537, 550 (7th Ci r. 2005) (uph oldi ng adjustment where defendant negot i ated pric es, recruited buyer, and set details of deli ver y); see al s o U

. S

. S

. G. § 3B1.1 cmt. n.4 (i denti fyi ng seven factors bearin g on the inqui ry )

. Mor eov er, alt hough Thomas m aintai ns that he was not the “head” o f t he drugtr affi cking or gani zation, his p o siti on as a “mere mi ddleman” would not render the adjustment i nappropr i ate; t he key inqui ry i s hi s “relative responsibi li ty and contr ol ov er other partici pants,” Mendoza, 576 F.3d at 7 2 0 , a nd t he recor d demonstrate s that Thomas played a central r ole inor gani zing and coordinating the r unners who repo rt ed to him.

Accordi ngly, we AFFIRM the sentence.