NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0288n.06 Case No. 16-1661 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DARRYL LARON GILLIAM-FRENCH, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN OPINION

BEFORE: GIBBONS, SUTTON, a nd COOK, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Defendant Darryl Gilliam-French pled guilty to heroin distribution pursuant to a wr itten plea agreement and was sentenced to 65 months’ imprisonment. On appeal, Gilliam-French challenges the ratio the district court used to convert the cash and money orders found in his possession into an attributable drug weight. Gilliam-French contends that the amount of heroin attributed to him is too high and that the conversion rate makes his sentence procedurally unreasonable. For the reasons that follow, we affirm the judgment of the district court.
I. In 2015, the government learned that Darryl Gilliam-French was selling heroin in the Escanaba, Michigan area. Thereafter, the g overnment investigated Gilliam-French using a confidential informant. Between July a nd September 2015, the government set up fourCase No. 16-1661, United States v. Gilliam-French

2 controlled buys from Gilliam-Fr ench using wired informants a nd prerecorded cash. In each controlled buy, Gilliam-Fren ch sold the heroin in “packs,” or clear-fill ed capsules, usually for $10 per pack. On September 15, 2015, officers saw Gilliam-Fren ch leave his residence and meet two women at an Escanaba shopping center. When Gilliam-French returned to his apartment, officers arrested him for two counts of delive ry of heroin. Officers discovered a blank $300 MoneyGram check on Gilliam-French during his arrest. During the subsequent search of Gilliam-French’s apartment, officers discovered a plastic bag with five capsules of suspected heroin, one Xanax pill hidden inside an Ajax bottle , a small amount of marijuana, scales, receipts for money orders, and $13,424 in cash. The investigation into Gilliam-French’s heroin operation led to the arrest of four other suspects for delivery of controlled substances. During interviews with these suspects, officers learned that Gilliam-French’s capsules contai ned 0.1 gram of heroin and each capsule was typically sold for $10. On September 29, 2015, Gilliam-French was indi cted on four counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). On February 1, 2016, he pled guilty to Count 1 of the indictment pursuant to a written plea agreement. The United States Probation Offi ce provided the parties with an initial presentence report (“PSR”) in March 2016. Gilliam-Fr ench’s base offense level of 24 was calculated using the drug weight attributable to him. The $13,424 foun d in Gilliam-French’s apartment and the $300 MoneyGram found on him during his initial arrest were deemed “drug proceeds” and used to calculate the drug weight. To avoid double-c ounting, the proceeds from the government’sCase No. 16-1661, United States v. Gilliam-French

3 controlled buys were not used to calculate drug weight. The money was converted using a rate of $10 per 0.1 gram of heroin. This led to a drug weight of 137.24 grams. Gilliam-French objected to th e initial PSR. He objected to the use of witness and informant statements in calculating the drug we ight, and to the use of one of the criminal convictions used in calculating hi s criminal-history score. But the final PSR, too, relied on the same “conservative estimate[s]” from the witne ss and informant statements and suggested that the district court resolve the dr ug weight issue at sentencing. The district court conducted a sentenci ng hearing on May 18, 2016. At the hearing, Gilliam-French reiterated his objection to the conversion method. Gilliam-French instead argued that the quantity of heroin listed in lab reports from the four controlled buys was a more accurate representation of his heroin sa les and that the lab report qua ntities should be the basis for converting the cash into drug weight. To perform these tests the heroin was separated from its capsule and transported in plastic bags. Heroin from two capsules from one of the controlled buys weighed in at 0.0756 grams, heroin contained in five capsules from another controlled buy weighed 0.0949 grams, and three more capsules from a third controlled buy contained 0.0407 grams of heroin. But, the lab tests were conducted to confirm only that the capsules, in fact, contained heroin. The lab repor t did not report the exact wei ght contained in each capsule because some stuck to the bags due to static. To support its calculation that 0.1 grams of he roin were in each capsule, the government presented testimony from Michigan State Police Detective Sergeant Ron Ko ski. Koski testified about the four controlled drug buys with Gilliam-Fr ench. In the first, the informant purchased six capsules from Gilliam-French for $60. Two capsules sold for $15 in the second controlled buy. Gilliam-French sold six capsules for $60 in the third controlled buy. The final controlledCase No. 16-1661, United States v. Gilliam-French

4 buy was three capsules for $30. Koski also testified that Gilliam-French had regularly advertised to his customers that he sold 0.1 gram capsules fo r $10 each. He further test ified that a “pack” or “point” is common drug slang for a tenth of a gram of heroin. The court also heard testimony about the standard price for hero in in the Upper Michigan Peninsula and th e Detroit area, the lab reports from the four controlled buys, and the we ight contained in each capsule sold by GilliamFrench. The court overruled Gilliam-French’s objectio n to the drug-weight conversion method used in the PSR. In doing so, the court stated th at it was undisputed that the $13,724 in cash or money orders was recovered from Gilliam-Fren ch, and that Gilliam-French was unemployed and had no visible means of supporting himself other th an drug dealing. It al so noted that the lab reports were conducted for the purposes of dete rmining whether the capsules contained heroin, and that the weight of the heroin was a secondary consideration. That so me of the heroin from the capsules stuck to the plastic bags in which they were trans ported could account for the lower quantities from the four controlled buys. However, that was not th e sole basis for its sentencing decision. The court noted that the samples fro m the controlled buys were not necessarily representative of Gilliam-French’s total drug activ ity. It highlighted that it had heard testimony that Gilliam-French had been selli ng heroin for at least two years, and that this evidence could be factored into its calculation wh en converting the cash into a drug weight. The district court ultimately concluded that the estimate in the PSR was accurate, if not an underestimate, of the amount of heroin for which Gilliam-French was responsible. The court also overruled Gilliam-French’s s econd objection to the guideline scoring from the PSR. He was sentenced to 65 months’ impris onment, within the 57-71 months Guidelines range. He now appeals.Case No. 16-1661, United States v. Gilliam-French

5 II. We review a district cour t’s sentencing decisions for an abuse of discretion. United States v. Bolds , 511 F.3d 568, 578 (6th Cir. 2007) (citing Gall v. United States , 552 U.S. 38, 40– 41 (2007)). “A district court’s determination of the quantity of drugs used to compute a defendant’s sentence is a findi ng of fact that should be upheld unless clearly erroneous.” United States v. Young , 553 F.3d 1035, 1051 (6th Cir. 2009) (quoting United States v. Hoskins , 173 F.3d 351, 354 (6th Cir. 1999)). The finding of fact will be clearly erroneous only where “the reviewing court on the entire eviden ce is left with the definite and firm conviction that a mistake has been committed.” United States v. Russell , 595 F.3d 633, 646 (6th Cir. 2010) (internal citation omitted). “Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.” Federal Sentencing Guidelines Manual § 2D1.1, commenta ry, applic. nt. 5 (U.S. Sentencing Comm’n 2016); see also Russell , 595 F.3d at 646. When so approxima ting, “the court may consider, for example, the price generally obtained for the cont rolled substance, financ ial or other records, [and] similar transactions in controlled substanc es by the defendant.” Guidelines § 2D1.1 nt. 5. The government “ must prove by a preponderance of the evidence both the amount of money attributable to drug activity and the conversi on ratio-i.e., the price per unit of drugs.” Russell , 595 F.3d at 646 (internal citation omitted). When the exact drug weight for which a defendant is responsible is uncertain, the district court mu st “err on the side of caution and may only hold a defendant accountable for a specific quantity for which he is more likely than not actually responsible.” United States v. Johnson , 732 F.3d 577, 581 (6th Cir. 2013) (internal quotations omitted).Case No. 16-1661, United States v. Gilliam-French

6 Here, Gilliam-French does not dispute that the $13,724 in cash and currency was attributable to his drug activity. Instead, he focuses on the dist rict court’s conversion ratio. Gilliam-French argues that the conversion of the $13,724 should be based on the quantities reported by the lab from the controlled buys. For ex ample, he offers that the calculation should be based on the 0.0756 grams of heroin extracted fr om two capsules in a controlled buy, yielding 0.0378 grams per capsule. Those two capsules sold for a total of $15, or $7.50 each. Dividing the $13,724 by that price yields 1,829.86 capsules, for a total of 69.17 grams, instead of 137.24 grams as the PSR and the district court conclu ded. This drug weight, Gilliam-French argues, would place him at a starting offense level of 20, instead of 24, and his Guidelines range would have been 36-47 months instead of 57-71 months. We may not reverse a distri ct court’s factual finding as long as it was based on a plausible view of the evidence, even if we “w ould have weighed the ev idence differently.” Anderson v. City of Bessemer City , 470 U.S. 564, 574 (1985). In li ght of this, “when there are two permissible views of the evidence, the [dis trict court’s] choice be tween them cannot be clearly erroneous.” United States v. Ivy , 165 F.3d 397, 401

– 02 (6th Cir. 1998) (quoting United States v. Taylor , 956 F.2d 572, 576 (6th Cir. 1992)). If a court fails to corre ctly calculate the Guidelines, however, the procedural error rend ers the sentence procedurally unreasonable. United States v. Pawlak , 822 F.3d 902, 905

– 06 (6th Cir. 2016), abrogated on other grounds , Beckles v. United States , 137 S. Ct. 886 (2017). Therefore, mi scalculating the drug weight for which a defendant is responsible could result in a pr ocedural error by placing the defendant within the incorrect Guidelines range. See, e.g. , Molina-Martinez v. United States , 136 S. Ct. 1338, 1345 –46 (2016).Case No. 16-1661, United States v. Gilliam-French

7 The district court considered the non-exhaustive list of ev idence contained in Note 5 to § 2D1.1 and reasonably determined that the pr oper conversion ratio was $10 to 0.1 grams of heroin. The district court relied, primar ily, on the testimony of Officer Koski. Koski testified to what he learned about Gilliam-French’s drug sale s during his investigation, and to what a “pack” or “point” usually means in drug slang. Koski testified about the four controlled buys that the government set up with Gilliam-French, and that, in three of them, Gilliam-French offered to sell 0.1 grams of heroin for $10 per capsule. He also testified about the multiple interviews conducted during the investigation with Gilliam-French ’s customers, all of whom stated that they had bought heroin in clear capsul es containing a “pack,” or 0.1 gr am of heroin, for $10 apiece. Importantly, several of those customers noted th at they had been buying from Gilliam-French since 2014 and that they often bought multiple capsules a day. Koski also offered some explan ation of the lower reported dr ug weights from the lab tests conducted on the controlled-buy capsules: the test s were conducted to confirm it was heroin, not to weigh the amount within the capsules, and, wh en the heroin was extracted from the capsules and transported in plastic bags, some of the heroin stuck to the interior of the plastic bags from static. He offered at least one plausible reason that there could be a discrepancy between the reported quantities and what Gillia m-French had advertised as 0.1 gram capsules of heroin. But, he acknowledged that this might not account for th e entire difference between the 0.1 advertised and the weight obtained in the lab. Gilliam-French argues that Koski’s testimony “does not matter, and that the evidence from the lab reports is the “best and most reliable evidence of the weight of heroin in the capsules.” Additionally , Koski’s testimony may support a findi ng that the conversion ratio wasCase No. 16-1661, United States v. Gilliam-French

8 incorrect; he testified that one gram sold for between $125 –250, making the $10 per 0.1 gram measure relatively low. The record shows that the district cour t considered both Koski’s testimony and the evidence from the lab reports in making its cal culation and thus ultima tely in its sentencing decision. The court considered “t he price generally obtained for th e controlled substance[,]” theproceeds from the drug sales, and similar transactions and controlled-substance sales by GilliamFrench. It also considered testimony that Gil liam-French had been selling heroin in the region since at least the summer of 2014. This fact led the court to believe that Gilliam-French was responsible for far more the $13,724 in drug proceeds, because it is unlikely he would have kept all of the proceeds sitting in his apartment in cash for more than a year and a half. Thus, even if the conversion ratio was inaccura te, the district court’s estim ate of Gilliam-French’s drug trafficking was still a conservative, and reasonable, estimate. Taking all of th e testimony into account, including the lab reports, the district co urt found the PSR’s estima tion accurate. Section 2D1.1 does not limit district courts to considerat ion of only currency; in stead, such evidence is just an example of types of evidence that may be employed. Gilliam-French has not shown that his reading of the evidence is the only plausible one. Therefore, the district court’s finding of fact as to the drug weight was not in error. Because our review of a defendant’s sentence is deferential, and because there was ample evidence in the record to support the court’s calculation that Gilliam-French was responsible for at least 137.24 grams of heroin, we uphold his sentence.
III. For the reasons stated above, we affirm the judgment of the district court.