PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-2157

UNITED STATES OF AMERICA

v.

EVANS SAMUEL SANTOS DIAZ, 

 Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No.: 3-16-cr-00085-006)

District Judge: Honorable Malachy E. Mannion

Argued November 12, 2019

(Opinion Filed: February 25, 2020)
2

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

Sean A. Camoni (Argued)

Evan J. Gotlob

Office of the United States Attorney 

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsel for Appellee

Jacob Schuman (Argued)

Brett G. Sweitzer

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

O P I N I O N 

RENDELL, Circuit Judge: 

Appellant Evans Santos Diaz challenges his conviction 

for conspiracy to distribute and possess with intent to distribute 

heroin and cocaine, raising three distinct objections. While we 

are concerned that the District Court may not have been as 
3

attentive to Diaz’s complaints regarding his counsel as it 

should have been, and concerned as well that certain testimony 

by a government witness violated Rule 701, we will 

nonetheless deny his request for a new trial. We also conclude 

that the District Court did not clearly err when it attributed 

more than 20 grams of heroin to Diaz at sentencing. 

Accordingly, we will affirm. 

I. Background 

Evans Santos Diaz was charged, along with five codefendants, with conspiracy to distribute and possess with 

intent to distribute drugs. One of the co-defendants, Jeffrey 

Guzman, orchestrated the conspiracy. He distributed to 

co-defendants Richard Chalmers, Louis Bracey, Landy Then, 

and Diaz, and periodically involved his mother, co-defendant 

Magdalena Alvarez, as well. All five of Diaz’s co-defendants 

pled guilty, but Diaz chose to exercise his right to a trial. 

A. Pretrial Complaints about Counsel 

After being indicted, Diaz represented that he could not

afford counsel, and a magistrate judge assigned Criminal 

Justice Act (CJA) counsel, Deborah Albert-Heise to represent 

him. A few months later, however, Ms. Albert-Heise accepted 

a position as an assistant district attorney and withdrew. The 

District Court then appointed Joseph O’Brien on July 13, 2016.

Dissatisfied with O’Brien, Diaz requested new counsel

in an August letter to the Clerk of Court. Diaz stated that 

O’Brien pressured him to plead guilty, did not accept Diaz’s 

advice on submitting pretrial motions, and failed to turn over 

discovery to him. In response to Diaz’s pro se motion, the 
4

District Court promptly held a hearing to inquire into the 

problems with the representation. At the hearing, the Court 

asked both O’Brien and Diaz about the issues and attempted to

explain to Diaz that O’Brien was an excellent lawyer. Diaz 

still insisted that he wanted the Court to appoint new counsel, 

and the District Court appointed Joseph Kalinowski on August 

29, 2016.

On December 5, 2016, Diaz wrote to the District Court

to request certain documents and informed the Court that he 

had not received anything from counsel. In response, the Court 

issued an order acknowledging receipt of Diaz’s letter and 

directing the Clerk to forward a copy of the letter to counsel 

for a response. The record does not reflect any response from 

counsel. 

On February 7, 2017, Diaz again wrote to the Court to 

request assistance obtaining discovery and advised that he was 

concerned about Kalinowski’s failure to communicate with 

him. In response to this letter, on February 14, 2017, the 

District Court ordered Kalinowski to file a response to Diaz by 

February 21. Kalinowski never complied with that order. 

On February 22, following Kalinowski’s failure to 

comply with the February 21 deadline, Diaz requested new 

counsel. In a pro se letter, he wrote that Kalinowski “fails to 

answer my letters and requests for discovery materials. . . . I 

am requesting that you consider appointing me new counsel.” 

App. at 94. The Court did not then seek any additional 

information from Kalinowski or Diaz, nor did it inquire further 

or schedule any hearing to address the request to replace 

Kalinowski. 
5

One month after the request for new counsel, on March 

24, Kalinowski filed a motion for continuance in which he 

represented:

The Defendant has submitted a letter to the Court 

which is being considered as a request for new 

counsel. After a meeting between counsel and 

the Defendant on March 23, 2017, all issues 

between counsel and the Defendant have been 

resolved and the Defendant wishes to continue 

with counsel’s representation. 

App. at 102–03. The District Court granted the continuance

without commenting on Diaz’s request for new counsel. Diaz 

and Kalinowski then appeared together on April 7 for a pretrial 

conference. At the conference, neither Diaz nor Kalinowski 

raised any issue related to the request or the representation. 

Ten days after the pretrial conference, on April 17, Diaz

again wrote to the District Court complaining of Kalinowski’s 

failure to adequately represent him or to provide discovery. In 

the letter, he reminded the Court that Kalinowski never 

responded to the Court’s February 14 order and again stated 

that Kalinowski neither responded to Diaz’s letters nor visited

him. On June 29, Diaz wrote to the Court complaining of 

Kalinowski’s failure to respond, repeated motions for 

continuance, and failure to provide discovery. Diaz did not, 

however, renew his request for new counsel either before or at 

trial. On August 16, the case proceeded to trial with 

Kalinowski representing Diaz. 
6

B. Officer Gula’s Testimony at Trial

At trial, the government introduced evidence of Jeffrey 

Guzman’s conspiracy and Diaz’s role in it, including the 

testimony of Drug Enforcement Administration (DEA) Task 

Force Officer Jason Gula. The government asked Officer Gula 

about the members of the conspiracy and requested that he 

“briefly describe in summary how each of these individuals 

were involved.” App. at 254. Gula testified that Guzman was 

the head of the operation; that Landy Then, Richard Chalmers, 

and Louis Bracey bought drugs from Guzman and sold them to 

their own customers; and that Guzman’s mother helped move 

and deliver the drugs. The government then asked, “how about 

the Defendant, Evans Samuel Santos Diaz, how is he involved 

in this case?” App. at 256. Gula responded, “Evans Santos 

Diaz through the investigation we identified as being basically 

a subordinate of Jeffrey Guzman, working at the direction of 

Jeffrey Guzman, bagging up drugs for Jeffrey Guzman, 

distributing on behalf of Jeffrey Guzman, and also distributing 

to his own customers, which we learned through the 

investigation.” Id. 

Gula also testified about intercepted communications 

between Diaz and others and between others talking about 

Diaz. He repeatedly testified as to the meaning and 

significance of those communications. After the testimony of 

several other witnesses, including co-defendants Guzman and 

Alvarez, and the introduction of text messages and recorded 

phone calls, the jury convicted Diaz of conspiring to distribute 
7

and possess with intent to distribute heroin, cocaine, and 

crack.1 

C. Sentencing 

According to the presentence investigation report 

(PSR), Diaz’s offense involved 30 grams of heroin and 1 gram 

of cocaine. This resulted in a base offense level of 16. 

U.S.S.G. § 3C1.1. Diaz objected to the drug quantity 

determination, arguing that the evidence only supported a 

finding of 15 grams. The District Court considered the 

arguments of Diaz and the government. Based on the text 

messages and intercepted communications related to Diaz

introduced at trial and on the fact that all of Diaz’s coconspirators were responsible for much greater amounts, the 

Court concluded that 30 grams was an appropriate amount to 

attribute to Diaz. After adopting the PSR’s conclusion that the

drug quantity made the proper base offense level 16, with an 

enhancement for obstruction of justice bringing the adjusted 

offense level to 18, the District Court sentenced Diaz to 33 

months imprisonment and three years of supervised release.

II. Discussion 

Diaz raises three issues on appeal: (1) the District 

Court’s failure to inquire into his motion for appointment of 

new counsel, (2) the improper admission of Officer Gula’s 

testimony, and (3) the Court’s attribution of more than 20

grams of heroin to Diaz at sentencing. We address each in turn. 

1 The government amended the count to reflect only heroin and 

cocaine.
8

A. The District Court’s Failure to Inquire

We review for abuse of discretion a district court’s 

decision not to permit substitution of counsel. See United 

States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995).

Generally, “[w]hen a defendant requests a substitution of 

counsel . . . the district court must engage in at least some 

inquiry as to the reason for the defendant’s dissatisfaction with 

his existing attorney.” United States v. Welty, 674 F.2d 185, 

187 (3d Cir. 1982). In the course of the inquiry, the defendant 

must demonstrate good cause for appointment of new counsel, 

“such as a conflict of interest, a complete breakdown in 

communication, or an irreconcilable conflict with his 

attorney.” Id. at 188. Although the requisite inquiry may 

consider a variety of sources and need not include a one-onone colloquy with the defendant, we have noted the importance 

of allowing the defendant, as well as counsel, the opportunity 

to be heard on the matter. See United States v. Hodge, 870 F.3d 

184, 202 (3d Cir. 2017). 

Under our precedent concerning district courts’

obligation to inquire when a defendant lodges complaints 

regarding counsel’s representation, the facts here present a 

close case. Initially, the District Court appears to have made 

little or no effort to probe Diaz’s request that Kalinowski be 

replaced. Typically, if a district court fails to make “any onthe-record inquiry as to the reasons for the defendant’s 

dissatisfaction with his existing attorney,” it abuses its 

discretion. McMahon v. Fulcomer, 821 F.2d 934, 944 (3d Cir. 

1987); Goldberg, 67 F.3d at 1098; Welty, 674 F.2d at 190. We 

have not made that obligation dependent upon the number of 

times a defendant has made this request. We have specifically 

instructed that a Court must “engage in at least some inquiry,” 
9

“[e]ven when the trial judge suspects that the defendant’s 

contentions are disingenuous, and motives impure.” 

McMahon, 821 F.2d at 942 (citation omitted). The District 

Court’s inaction would thus normally raise serious questions, 

particularly given that Diaz complained not only about strategy 

but also about a total lack of communication. But this case 

presents a unique circumstance. Soon after Diaz made his 

request, the District Court had good reason to believe 

Kalinowski was communicating with Diaz such that Diaz’s

request was withdrawn or moot. On these facts—particularly 

given the deference owed the District Court under the abuse of 

discretion standard—we cannot conclude that the Court’s lack 

of inquiry constituted an abuse of discretion. 

It is clear that the Court was aware of Diaz’s concerns,

and it took some action to remedy the situation when it ordered 

Kalinowski to file a response to Diaz’s December 5 letter. The

District Court did not follow up on this order or insist that 

Kalinowski respond to Diaz’s complaints, nor did it schedule a 

hearing to address the request, as it had when Diaz had 

previously sought to replace O’Brien as counsel.

2

 However 

2 Diaz contends that, in not quickly holding a hearing as it had 

when Diaz sought to replace O’Brien, the District Court was 

enforcing an unspoken “one-substitution rule.” See 

Appellant’s Br. at 35. We are not persuaded that the Court had 

such a policy in place. It goes without saying that there is no 

numerical limit on the right to counsel. To say that, after 

having had more than one lawyer, a defendant complaining 

about counsel’s representation must automatically represent 

himself would impose an arbitrary limit on the Sixth 

Amendment. Unless a defendant forfeits the right to counsel 

due to “extremely serious misconduct” or knowingly, 
10

undesirable the Court’s initial inaction may have been, within 

a month, the Court received information that Kalinowski was 

communicating with Diaz, and Diaz no longer sought new 

counsel. Thus, the Court’s intervention was unnecessary. 

The information the Court received made clear that 

Kalinowski was paying attention to Diaz’s requests. When, on 

March 24, 2017, Kalinowski, in a motion for continuance, 

wrote that he had had a meeting with Diaz the day before and 

all issues between them “ha[d] been resolved and ... [Diaz] 

wishe[d] to continue with counsel’s representation,” App. at 

102–03, the District Court did not have any basis to question 

that statement. Thereafter, Diaz appeared alongside 

Kalinowski at a pretrial conference on April 7 and did not raise 

any further complaints about the representation. Although 

Diaz renewed his complaints about Kalinowski in April and 

June letters to the Court, he stopped short of asking for

counsel’s replacement. Further, Diaz continued to appear 

alongside Kalinowski throughout the trial and sentencing 

without complaint. Despite numerous opportunities to address 

the court, Diaz never again requested new counsel, nor did he 

ever complain of Kalinowski’s effectiveness at trial. From 

these facts, it appears that Kalinowski and Diaz had, indeed, 

resolved their issues and were working together effectively. 

Therefore, although ideally the District Court would have 

inquired into Diaz’s various complaints, we cannot conclude 

voluntarily, and intelligently waives that right, his Sixth 

Amendment right to effective assistance of counsel persists. 

See United States v. Leggett, 162 F.3d 237, 249–50 (3d Cir. 

1998) (citation omitted). 
11

from this record that the Court’s failure to do so amounted to

an abuse of discretion.3

B. Officer Gula’s Testimony

Diaz next challenges the testimony of DEA Task Force 

Officer Gula. Because defense counsel did not object to this 

testimony at trial, we will reverse only for plain error. United 

States v. Jackson, 849 F.3d 540, 544 (3d Cir. 2017). Diaz 

contends that the District Court plainly erred by allowing, in 

violation of Federal Rule of Evidence 701, Gula’s testimony

(1) drawing the legal conclusion that Diaz was a conspirator 

who bagged and distributed drugs and (2) interpreting noncoded conversations in which Diaz was involved. 

Federal Rule of Evidence 701 permits certain lay 

opinion testimony that “has the effect of describing something 

that the jurors could not otherwise experience for themselves” 

to offer the trier of fact a more “accurate reproduction of the 

event.” Jackson, 849 F.3d at 553 (quoting United States v. 

Fulton, 837 F.3d 281, 291 (3d Cir. 2016)). To achieve this 

purpose, Rule 701 requires that lay opinion testimony be

(a) “rationally based on the witness’s perception,” (b) helpful, 

3 Our conclusion that the Court did not abuse its discretion 

should not be confused with an endorsement of its approach to 

the situation. As we have noted, the District Court did not 

follow up on its order that Kalinowski respond, nor did it seek 

an explanation from Kalinowski about his lack of 

responsiveness or bring Diaz and Kalinowski into court to ask 

about the apparent breakdown in communication. Simple steps 

such as these would have been appropriate and advisable. 
12

and (c) “not based on scientific, technical, or other specialized 

knowledge.” Fed. R. Evid. 701. The proponent of the lay 

opinion testimony bears the burden of demonstrating an 

adequate foundation. Fulton, 837 F.3d at 291. Here, Diaz

argues that Gula’s testimony failed to satisfy the foundation 

requirements of both 701(a) and 701(b) when he testified as to

Diaz’s role in the conspiracy and interpreted clear 

conversations. We need not consider the 701(a) objections 

because these aspects of Gula’s testimony clearly violated 

701(b).

i. Conclusory Testimony

We turn first to Gula’s testimony about Diaz’s role in 

the conspiracy. Diaz contends that, when Gula summarized 

Diaz’s role, he improperly and unhelpfully offered his opinion 

on the ultimate issue at trial: Diaz’s involvement in the 

conspiracy. We agree. 

The District Court allowed Gula to opine that Diaz 

worked as “a subordinate of Jeffrey Guzman, working at the 

direction of Jeffrey Guzman” to bag and distribute drugs. App. 

at 256. This conclusory statement was obviously unhelpful,

and the Court should have excluded it under 701(b). The 

“purpose of the foundation requirements” of Rule 701 “is to 

ensure that such testimony does not . . . usurp the fact-finding 

function of the jury.” Fulton, 837 F.3d at 291–92 (citation 

omitted). Therefore, the helpfulness requirement in 701(b) 

requires courts to exclude “testimony where the witness is no 

better suited than the jury to make the judgment at issue.” 

Jackson, 849 F.3d at 554 (quoting Fulton, 837 F.3d at 293). 

Here, the jury was perfectly well suited to determine, based on 

the evidence before them, whether Diaz worked as a part of 

Guzman’s conspiracy. Indeed, that was the primary question 
13

facing them. Gula’s comments articulated precisely the 

conclusion the government asked the jury to infer from the 

evidence presented at trial, removing the jury’s need to 

personally review the evidence. See United States v. Grinage, 

390 F.3d 746, 750 (2d Cir. 2004). Rather than offering insight 

the jury could not itself have gleaned from the evidence, Gula’s 

testimony served to provide the conclusion the government 

wanted the jury to reach. 

Such conclusory testimony undermines the goal of Rule

701 “to exclude lay opinion testimony that ‘amounts to little 

more than choosing up sides, or that merely tells the jury what 

result to reach.’” Fulton, 837 F.3d at 291 (quoting United 

States v. Stadtmauer, 620 F.3d 238, 262 (3d Cir. 2010)). That

is just what Gula did when he told the jury Diaz worked as 

Guzman’s subordinate, bagging and distributing drugs. By 

admitting such testimony, the District Court allowed precisely

the sort of testimony Rule 701 is designed to exclude. 

ii. Testimony about Non-Coded Statements

Diaz next challenges Gula’s testimony interpreting a 

number of non-coded statements. We find this testimony quite

problematic and have no trouble concluding that the District 

Court should have excluded it. 

We have repeatedly held that a lay witness may not 

interpret clear statements understandable to a jury without 

violating Rule 701(b)’s helpfulness requirement. Jackson, 849 

F.3d at 554; United States v. Dicker, 853 F.2d 1103, 1109 (3d 

Cir. 1988). Certainly, lay witnesses may offer opinions about 

the meaning of recorded conversations if the witness’s 

opinions are helpful in determining a relevant fact and, to an 
14

“uninitiated listener,” the speaker “speaks as if he were using 

code.” United States v. De Peri, 778 F.2d 963, 977 (3d Cir. 

1985). But even then, the trial court bears the responsibility of

“vigorously polic[ing] the government’s examination” to 

ensure the witness is “not asked to interpret relatively clear 

statements.” Id. at 978; Jackson, 849 F.3d at 553–54. 

Such policing is necessary because, when officers 

interpret clear, non-coded statements, they are “no better suited 

than the jury to make the judgment at issue,” and the testimony 

is therefore unhelpful. Jackson, 849 F.3d at 554 (quoting 

Fulton, 837 F.3d at 293). In Jackson, we found lay testimony 

about a recorded call unhelpful under Rule 701(b) because the 

call contained “seemingly no mention of code words,” 

although the meaning of the call was unclear. Id. Vagueness 

or lack of clarity alone does not render a conversation coded so 

as to permit lay opinion testimony about its meaning. If a jury 

could independently understand the meaning based on the 

conversation itself and other evidence in the case, Rule 

701(b)’s helpfulness requirement bars any additional lay

witness “interpretation.”

Here, the District Court permitted Gula to opine, 

unhelpfully, about his understanding of numerous calls the jury 

could have interpreted for themselves, sometimes actually 

misinterpreting them but giving the impression that his 

interpretation was authoritative. Gula interpreted a call from 

Diaz to Guzman in which Diaz stated, “[y]o you know this bags 

are different sizes right?” App. at 470. Gula stated that, “based 

on the investigation, my training and experience, he’s talking 

about the bags he was utilizing to bag up narcotics at the 

direction of Jeffrey Guzman, and he’s telling Guzman that the 

bags are all different sizes.” App. at 261. Gula also interpreted 
15

a text from Louis Bracey to Diaz that read, “u got me waitin,”

App. at 732, to mean “Louis Bracey is waiting on Gito for a 

quantity of narcotics.” App. at 287. These statements 

contained no coded terminology requiring interpretation. Gula 

simply repeated the language used in the conversations and 

then added his own conclusion that the statements referred to 

narcotics activity. We criticized this type of testimony in 

Jackson, where we noted that the translation of “you can go 

ahead and send him” to mean “it is okay now to send [a coconspirator] to purchase cocaine in Dallas” presented a 

particularly egregious violation of 701(b). 849 F.3d at 554. 

Gula repeatedly offered such egregious testimony, advising the 

jury that clear statements described narcotics activity.

The government contends that many of the

communications did include code words. For instance, the 

government points to conversations using the term 

“barbershop,” which it argues served as a code word for a 

meeting place for drug purchases. But “barbershop” was not a 

code word. It referred to an actual barbershop—albeit one 

where the evidence showed that the co-conspirators also 

distributed drugs. Nonetheless, Gula purported to “interpret” 

a text message from Diaz, in which he said, “[c]ome on the guy 

is at the barbershop waiting for me.” App. at 472. Gula 

commented, “[t]his is significant, because during the course of 

investigation, we identified the location of Ramirez 

Barbershop, which is approximately one block away from 

Jeffrey Guzman’s residence. Jeffrey Guzman and Evans 

Santos were regularly going over to the barbershop to 

distribute narcotics to customers.” App. at 262. None of this 

testimony offers an interpretation of a coded statement. 
16

This commentary about Diaz’s reference to the 

barbershop did not amount to proper lay opinion testimony. 

Although evidence of drug activity at Ramirez Barbershop was 

certainly relevant evidence to put before the jury, it was not 

necessary to understand the meaning of Diaz’s text message. 

Rather, linking Diaz’s statement to the evidence about Ramirez 

Barbershop, as Gula did in his testimony, constituted argument

about the significance of Diaz’s statement. Although it is 

“perfectly appropriate for the prosecutor to argue in 

summation” that relevant evidence supports a particular 

inference from communications, a “case agent’s testimony 

may not ‘simply dress[ ] up argument as evidence.’” Jackson, 

849 F.3d at 554 (alteration in original) (quoting Fulton, 837 

F.3d at 293). The government would have been well within its 

rights to argue in summation that, based on the other evidence 

about Ramirez Barbershop, the use of “barbershop” in the coconspirators’ communications referred to drug transactions at 

Ramirez Barbershop. But to present that argument by way of

lay opinion testimony interpreting a coded statement violated 

Rule 701(b). 

Accordingly, we conclude that the trial court 

improperly admitted Gula’s conclusory testimony about Diaz’s 

role in the conspiracy as well as the testimony about his 

impressions of the communications in violation of Rule 701(b). 

iii. Plain Error

Nonetheless, the plain error standard of review prevents 

reversal. Under that standard, the error must be “clear under 

current law” and impact substantial rights, having prejudiced 

the defendant by affecting the trial’s outcome. United States 

v. Olano, 507 U.S. 725, 734 (1993). Moreover, we will not
17

reverse unless the error “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” Id. at 

732 (alteration in original) (internal quotation marks and 

citation omitted). 

The improper testimony did not prejudice Diaz so as to 

affect his substantial rights. Aside from Gula’s testimony, the 

prosecution introduced considerable evidence of Diaz’s 

involvement in the conspiracy, including the testimony of two 

co-defendants, the testimony of additional investigators, and 

numerous calls and text messages. Further, with respect to

Gula’s testimony about the communications, Kalinowski 

effectively demonstrated on cross-examination that Gula had 

relied on experience unrelated to the investigation and that his 

testimony reflected only his impression of the conversations. 

These factors significantly “mitigate[ ] the likelihood that [the 

improper] testimony affected the outcome of the proceedings.” 

Fulton, 837 F.3d at 295. 

The error also did not impact the fairness, integrity, or 

public reputation of the proceedings because the prosecutor did 

not rely on any of Gula’s improper testimony in summation. 

When “urging a guilty verdict, the prosecution focused the 

jury’s attention only on the extensive admissible evidence 

supporting that result.” Id. (quoting Garcia, 413 F.3d at 217).

Accordingly, we cannot conclude that the error “seriously

affected the fairness, integrity, or public reputation of the 

judicial proceedings.” Id. 
18

C. The District Court’s Attribution of More than 

20 Grams of Heroin

Diaz last challenges the District Court’s attribution of 

30 grams of heroin to him at sentencing, which caused the 

Court to increase the base offense level from 14 to 16. The 

base offense level of 16 applies when a defendant is 

responsible for at least 20 grams but less than 40 grams of 

heroin. U.S.S.G. § 2D1.1(c)(12). Therefore, as long as the 

evidence demonstrated Diaz’s responsibility for the minimum

20 grams of heroin required for base offense level 16, any error 

in the Court’s determination that he was responsible for 30 

grams did not affect the base offense level or the resulting 

Guidelines range. 

A sentencing court must determine by a preponderance 

of the evidence that a defendant was responsible for a particular 

weight of a substance before attributing that amount to the 

defendant. United States v. Collado, 975 F.2d 985, 998 (3d 

Cir. 1992). District courts may not calculate quantity based on 

“mere speculation.” Id. However, we permit “some degree of 

estimation” in drug conspiracy cases because “the government 

usually cannot seize and measure all the drugs that flow 

through a large drug distribution conspiracy.” Id.; United 

States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993). 

If a district court makes an error in its drug quantity

determination that does not affect the base offense level or 

Guidelines range, the error is harmless. United States v. 

Woodside, 895 F.3d 894, 901 (6th Cir. 2018) (finding any error 

harmless where, absent alleged error, defendant “would still 

have been sentenced according to the same base-offense level 

under any conceivable estimate”); United States v. Alaniz, 726 
19

F.3d 586, 621 (5th Cir. 2013) (finding any error harmless 

where, absent alleged error, the undisputed drug quantity was 

“sufficient to surpass the . . . threshold for the maximum Base 

Offense Level”); see also United States v. Sykes, 854 F.3d 457, 

462 (8th Cir. 2017) (noting that, where a change in base offense 

level would not alter the applicable Guidelines range, any error 

in drug quantity calculation would be harmless). Any error in 

attributing 30 grams of heroin to Diaz would therefore be 

harmless, so long as the evidence supported a finding of at least

20 grams. 

We review the District Court’s factual determination 

that Diaz was responsible for at least 20 grams of heroin for 

clear error. See United States v. Metro, 882 F.3d 431, 437 (3d 

Cir. 2018). When a district court improperly bases a sentence 

on clearly erroneous facts, such a procedural error requires 

reversal. Gall v. United States, 552 U.S. 38, 51 (2007). We 

find a sentencing court’s factual findings clearly erroneous if 

they are “unsupported by substantial evidence, lack adequate 

evidentiary support in the record, are against the clear weight 

of the evidence or where the district court has misapprehended 

the weight of the evidence.” United States v. Johnson, 302 

F.3d 139, 153 (3d Cir. 2002). Diaz argues that the Court 

clearly erred in concluding that Diaz was responsible for 20 or 

more grams of heroin. We disagree. 

The Court had ample basis for determining that Diaz 

was responsible for at least 20 grams of heroin. Guzman 

testified that Diaz “used to bag up” heroin for him. App. at

327. When asked how much he would “normally pay” Diaz, 

Guzman responded that he “paid him a hundred dollars each 

10 bricks he did. So a brick is 50 bags. So each 50 times 10, 

500.” Id. This testimony indicates that payment of $100 in 
20

exchange for bagging 500 bags of heroin—approximately 15 

grams—constituted a normal transaction for Diaz’s services. 

The parties agree that at least one such transaction occurred. 

Guzman testified that a text message in which Diaz said he 

needed “a hundred” meant that Diaz wanted to “bag up” in 

exchange for $100 and remarked, “that is what I paid him for 

the drugs he bagged up.” App. at 334–35. Based on this 

evidence, Diaz undisputedly bears responsibility for bagging at 

least 500 bags, or 15 grams, of heroin. 

But Diaz bagged for Guzman more than once. Alvarez 

testified that she twice saw Diaz bagging for Guzman, and 

Guzman testified that he gave Diaz heroin twice. Although 

only the text message noted above specifically referenced 

$100, demonstrating a quantity of 500 bags, the evidence 

indicated that Guzman “normally” paid Diaz $100 for every 

500 bags, allowing the inference that a similar exchange of 

$100 for 500 bags would have occurred on the second 

occasion. App. at 327. Two like exchanges would have 

resulted in a total of 30 grams from Diaz bagging 1,000 bags 

of heroin. If, instead, Diaz bagged only half the amount of 

heroin—250 bags—the second time, that would still have

added 7.5 grams, bringing the total to 22.5 grams. Even 

assuming Diaz bagged less than half the normal amount of 

heroin on the second occasion, however, additional evidence

supported the conclusion that Diaz bore responsibility for more 

than 20 grams of heroin. 

Numerous text messages and calls showed that, beyond 

the two occasions noted above, Diaz repeatedly worked for or 

sought work from Guzman. Guzman testified that Diaz sought 

to bag or distribute heroin at “the barbershop”—where the 

evidence established members of the conspiracy frequently
21

distributed heroin—in at least one text message and one 

subsequent call discussed at trial. App. at 333–34, 471–74. In 

a third communication to Guzman, Diaz texted about the size 

of bags, and Guzman testified that the message concerned the 

bags Diaz used while bagging for Guzman. At least five other 

text messages further supported the inference that, on the dates 

of those messages, Diaz was completing work or seeking work 

in furtherance of the conspiracy. Even if each of these 

incidents involved only one brick—one-tenth of the amount of 

work for which Diaz was “normally” paid—the total for which 

Diaz was responsible would exceed 20 grams of heroin. The 

District Court did not clearly err in attributing at least 20 grams 

of heroin to Diaz, and to the extent any error occurred in 

attributing 30 grams specifically, such error was harmless. 

III. Conclusion

With respect to each of Diaz’s challenges, we find no 

error warranting reversal. First, we cannot conclude that the 

District Court abused its discretion when it did not address 

Diaz’s motion for appointment of new counsel. Next, although

the District Court erred by failing to exclude testimony that 

violated Rule 701, the error was not plain so as to warrant 

reversal. Finally, we conclude that the Court did not clearly 

err in attributing at least 20 grams of heroin to Diaz, and any 

error in attributing 30 grams, rather than 20, was harmless.

For the foregoing reasons, we will affirm.