United States Court of Appeals

For the First Circuit

No. 12-2304

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN DOE, a/k/a RASHIDE CAMPBELL, 

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Singal, U.S. District Judge]

Before

 Torruella, Selya, and Thompson,

Circuit Judges.

Clifford B. Strike and Strike, Goodwin & O'Brien, on brief,

for appellant.

Renée M. Bunker, Assistant United States Attorney, and Thomas

E. Delahanty II, United States Attorney, on brief, for appellee.

December 20, 2013
THOMPSON, Circuit Judge. Our John Doe is a man of many

names. Although there are more, we concern ourselves with only the

following: "Tony"; "G"; "Theotis Leonard"; and "Rashide Campbell." 

A jury in Portland, Maine, convicted "Rashide Campbell" of

illegally distributing a substance containing cocaine base.1

 The

district court sentenced him to twenty years behind bars, the

maximum jail term allowed by statute. Campbell now raises several

claims of error with respect to his conviction and the length of

his sentence. Finding no error, we affirm.

BACKGROUND

We recite the facts as the jury could have found them. 

Paul Buchanan is an experienced Drug Enforcement Administration

("DEA") agent working in Portland, Maine. Buchanan has gone

undercover on many occasions where, as he described it, "you pose

as someone other than yourself in order to infiltrate drug

distribution organizations." As a DEA agent, Buchanan is familiar

with sales of cocaine base--also known as "crack"--in the Portland

area. Crack, he explained, is brought to Maine from other states,

including New York, Connecticut, and Massachusetts, then broken up

into smaller quantities for sale to local drug users.

1

 Doe's counsel signed the brief to this Court on behalf of

"Mr. Campbell." As Doe has apparently settled on this name, we

refer to him primarily as Campbell but do not hesitate to use his

other appellations, as necessary. 

-2-
Buchanan came to know Campbell through the course of his

undercover work, although Campbell used the name "Tony" with

Buchanan. Buchanan himself used a false name when dealing with

Campbell, posing as "Josh," an individual "who wants to buy drugs

from Tony not just for use, but for distribution [to others] so

[he] can make some money."2 Before August 2011, Buchanan knew

Tony's voice because they had spoken on the phone and met in

person. At these previous "meetings," Buchanan "obtained what [he]

believed to be cocaine base" from Tony. 

The particular drug transaction culminating in Campbell's

arrest had its genesis on August 17, 2011, when Buchanan called

Tony to discuss another purchase of crack cocaine.3 After

inquiring whether Tony was "still working" ("still selling drugs"

according to Buchanan), Buchanan said he "wanted to get . . . a

little more than I did [last time]" and asked, "[c]an we do a

little more" in the coming days. Apparently to make sure there was

no confusion, Tony inquired "you telling me you're looking for

something bigger?" and Buchanan confirmed he was looking to "get a

whole, the whole onion." By asking for an "onion," Buchanan

explained at trial, he was signaling to Tony that he wanted to buy

"a whole ounce of crack cocaine, which is approximately 28 grams." 

2 We, however, will refer to him only as Buchanan.

3

 Unbeknownst to Tony, the DEA recorded this conversation and

others.

-3-
Drug dealers, Buchanan told the jury, "very rarely . . . call crack

cocaine crack cocaine" but instead use "street lingo . . . to avoid

detection by law enforcement and . . . describe to the customer

what their product is." During the course of their conversation,

Tony indicated he would be in the Portland area on Monday and

Buchanan agreed to call him then. 

As agreed, Tony and Buchanan spoke again by phone the

following Monday, August 22, 2011. During the first of two

recorded telephone conversations that day, Tony told Buchanan he

would be there that evening, and Buchanan indicated he had

"fifteen," meaning "$1,500 to spend." Each assured the other he

was not working for law enforcement by representing "everything is

straight" or "good," and they agreed to speak again later that day

to confirm the sale.

When Buchanan called back, Tony told Buchanan that he was

going to leave "it" (i.e., the drugs) with one of his girlfriends,

and that Buchanan would have to meet with her to make the pickup. 

Tony promised Buchanan "she's straight," and when Buchanan--who had

not met Tony's "girlfriend" before--expressed reluctance at

"dealing with someone new," Tony said he wanted to do the sale and

delivery this way "just this one time." Tony then informed

Buchanan he was "gonna give you [Buchanan] um [sic] fifteen for

that. Straight up. And you know it's gonna be official." 

Buchanan understood Tony to mean, "I'm not going to rip you off,"

-4-
and he expected to get fifteen grams of crack cocaine in exchange

for $1,500. Tony implored Buchanan to "please do me this one favor

this one time and then we can get back to regular," explaining "I

just want to be careful this one time."

Despite his just-expressed reservations, Tony apparently

changed his mind about not meeting Buchanan himself, as he later

told Buchanan to meet him at a Kentucky Fried Chicken in Portland. 

Buchanan--wearing a wire--arrived as instructed, accompanied by a

surveillance team to watch and listen as the deal went down. Tony

directed Buchanan to a nearby apartment, where Buchanan met Tony

along with two women and, after some negotiation, bought crack

cocaine for $1,400. Tony personally handed the drugs to Buchanan. 

During the transaction, Tony told Buchanan he had arrived

later than expected because he "didn't have enough, but I was

trying to hook you up right." Tony explained further:

. . . somebody was hookin' me up, so I wanted

you to come back so I wanted to take care of

you. . . . I wanted to really hook you up to

make sure you come back to me. Know what I'm

saying?

Buchanan then left the apartment and turned the drugs over to

another DEA agent. A forensic chemist confirmed the substance

Buchanan bought from Tony was in fact 6.9 grams of crack cocaine. 

The jury returned a guilty verdict, and Campbell was

ultimately sentenced to twenty years' imprisonment. This appeal

-5-
followed. We incorporate additional facts below, setting forth

those germane to each issue as necessary.

DISCUSSION

Campbell believes he deserves a new trial or, at the very

least, a reduced sentence, because of three purported errors

affecting his trial and sentencing. Campbell first complains--

apparently, as it is by no means clear from his brief--that the

jury was allowed to learn of his use of aliases because the trial

judge refused to amend the superseding indictment before trial,

denied his oral motion to dismiss that indictment, and allowed the

introduction of his aliases at trial. Campbell believes this

induced the jury "to infer prejudicial information" about him and

could have led them to convict him upon considerations other than

the evidence at trial. Second, he claims that the trial judge

erred by allowing evidence of previous, uncharged drug deals

between Campbell and Buchanan to be presented to the jury, which

violated the rule against "propensity evidence" and was unfairly

prejudicial to him. Finally, even if his conviction is upheld

Campbell seeks a new sentence because, his argument goes, the trial

judge made erroneous findings of fact at the sentencing hearing,

which resulted in the imposition of a longer sentence. We discuss

these contentions seriatim, but before we can address the merits of

each, such as they are, we must recount the twists and turns of the

relevant pretrial and trial proceedings. 

-6-
A. Alias Arguments

From the time of his arrest through the beginning of

trial, Campbell's identity was hotly contested. When he was

arrested on August 22, 2011, a driver's license issued to Theotis

Leonard was in his pocket.4

 He assumed this identity through

booking and continued to use this name for some time in statements

to law enforcement. However, when the police ran "Theotis

Leonard's" fingerprints, they came back as belonging to Rashide

Campbell instead. 

Unsurprisingly then, the initial August 23, 2011,

indictment read "United States of America v. Rashide Campbell a/k/a

Theotis Leonard." Campbell persisted in his refusal to identify

himself. Indeed, his November 1, 2011, trial brief states "[t]here

is also an issue of Defendant's identity, which to date has not

been established by the Government." At a November 29, 2011,

pretrial hearing that included discussions of Campbell's identity,

the prosecutor told the trial judge that Campbell "refused to

identify himself in the initial appearance on the first

indictment." Further complicating the matter, the prosecutor

informed the court that "the real Theotis Leonard was arrested in

Waterville two weeks after this guy [Campbell] was incarcerated." 

4 This was never brought to the jury's attention pursuant to

the trial judge's pretrial ruling that evidence of Campbell's

attempts to conceal his identity or of his flight was not

admissible at trial. The name "Theotis Leonard" was never uttered

by anyone at trial.

-7-
Defense counsel did not controvert or object to any of these

factual representations, but simply indicated "the only

identification he has given this entire time is Theotis Leonard." 

Although not stated explicitly in the record, this identification

confusion surely explains the October 26, 2011, superseding

indictment identifying Campbell as "John Doe a/k/a Tony a/k/a

Rashide Campbell a/k/a Theotis Leonard" (the "John Doe

Indictment"). 

Jury selection took place November 7, 2011. Further

illustrative of the identity issue in play is the following jury

voir dire question requested by defense counsel: "The Defendant in

this case is referred to as John Doe because the Government is

unaware of his true identity. Would any juror be influenced by

this fact relative to being able to fairly and impartially decide

the evidence in this case[?]"5 Also, the parties agree that the

John Doe Indictment was read to the prospective jurors. Although

we have not been provided with a transcript of the day's events, we

assume that all the aliases must also have been read to the jury,

as this would have been necessary to determine if anyone in the

pool knew Campbell by any of the names he went by. There is no

indication in the record, and Campbell does not argue, that he

5

 According to the government's brief, Campbell insisted on

being presented as John Doe at the jury empanelment. Campbell does

not contest this assertion.

-8-
objected to the reading of the John Doe Indictment during jury

selection.

The district court heard pretrial motions on November 29,

2011, the day before trial began. Towards the end of the hearing,

defense counsel made an "oral motion to have this indictment

amended to United States of America versus Theotis Leonard,"

arguing that presenting his client as John Doe to the jury would be

prejudicial. After some back and forth the trial judge declined to

amend the indictment. He did, however, invite the parties to agree

on one name to present to the jury at trial and instructed them to

make a decision by the next morning.

When they reconvened in the morning, defense counsel

proposed using the name "Rashide Campbell." Defense counsel

further agreed it would be appropriate to refer to Campbell as

"Tony" at trial: "He is still a/k/a Tony as far as I know and I

think that's legitimate in terms of this case. That's what he was

calling himself." The parties ultimately memorialized their

agreement in a handwritten stipulation signed by defense counsel

(Attorney William Maselli), the prosecutor (Attorney Daniel J.

Perry), and Campbell himself setting forth the following:

The parties hereby stipulate:

1. The Defendant [and] Government agree the

name Rashide Campbell a/k/a Tony will be used

in these proceedings.

2. The Defendant and Government agree that

the aliases John Doe and Theotis Leonard also

-9-
are identical identifying names as Rashide

Campbell a/k/a Tony for the purposes of this

case.6

 

Almost immediately after entering into this stipulation,

defense counsel made "an oral motion to dismiss this case at this

time based upon the Government's re-indictment under this name John

Doe." Because no written motion was filed, we set forth counsel's

presentation and the trial judge's ruling in their entirety: 

Mr. Maselli: But one other issue, we've been 

also discussing the impact of John Doe and we

have maybe different views of it, but I'm

making an oral motion to dismiss this case at

this time based upon the Government's reindictment under this name John Doe.

Again, as I stated in the prior conference,

the only reason it wasn't challenged in

writing at the time the indictment came down

is the Government represented to me that they

had determined that he was not Rashide

Campbell and I accepted that representation on

face value.

Now, it turns out as of yesterday, learning

that there was one witness who--it was within

the last couple of days, I don't remember when

we first discussed it, but there is one

witness who saw a photo of the defendant and

said that's not Rashide Campbell. Now, the

Government even has apparently grave concerns

as to whether this witness is telling the

truth.

6

 We pause here to note it would have been helpful had the

government mentioned in its brief that the parties' stipulation

went beyond referring to Campbell as "Rashide Campbell" at trial

and permitted him to be referred to as "Tony." As this was not

brought to our attention, the Court was required to comb through

the trial transcripts and exhibits in order to discover this

important fact. 

-10-
I don't think that's a sufficient basis to

change an indictment already brought before

this court of Rashide Campbell, and the entire

case has gone through as Rashide Campbell, to

John Doe and then to place it before the jury

at the last moment as John Doe and we are in a

situation where --

The Court: I thought we agreed it wasn't

going to be placed in front of the jury as

John Doe. It was going to be placed in front

of the jury as Rashide Campbell.

Mr. Maselli: I mean at the jury selection,

You Honor, I apologize. So he was John Doe at

the jury selection.

The Court: Well, you people should have

discussed this a long time ago and dealt with

this issue. Your motion to dismiss is denied. 

Too little too late.

Although Campbell had made an oral motion to amend the indictment

to Theotis Leonard less than twenty-four hours earlier, from the

tenor of this argument he now seemed to be taking the position,

without reference to any authority, that the John Doe Indictment

never should have issued in the first place. That the trial judge

did not solicit argument from the government and made a relatively

terse denial of this oral motion is hardly surprising in light of

the late hour and the fact that the parties had just agreed to use

the names "Rashide Campbell" or "Tony" exclusively at trial. 

Yet, even this clear ruling from the court did not quiet

the back and forth over Campbell's identity. The prosecutor took

one last opportunity to comment: 

Mr. Perry: Only other thing, Your Honor, is

as Mr. Maselli states, this case was read to

-11-
the jury [at jury selection] as U.S. v. John

Doe. Mr. Maselli introduced his client as

John Doe. I do want to raise that to the

Court in that now they're going to hear the

case is U.S. v. Rashide Campbell.

The Court: They don't remember it. They're

going to follow my instructions. 

Following this colloquy, the trial judge marked the handwritten

stipulation as Exhibit 6 for identification purposes only, reminded

both parties that Campbell was only to be referred to "consistent

with this agreement," and had Campbell acknowledge his signature on

the stipulation. 

The preliminary matters finally disposed of, the jury was

brought into the courtroom and trial began. From that point

forward, and contrary to what he asserts in his brief, Campbell was

referred to as either "Campbell," "Tony," or as "the defendant." 

The names "John Doe" and "Theotis Leonard" were never mentioned at

trial, nor did the prosecutor comment on Campbell's use of multiple

names or suggest to the jury that the only people who use aliases

are those with something to hide. 

Furthermore, the John Doe Indictment marked as an exhibit

at trial and provided to the jury for its use during deliberations

was redacted to remove the names "John Doe," "Tony," and "Theotis

Leonard," such that it identified Campbell as "Rashide Campbell"

only. As promised, the trial judge instructed the jury that it was

to base its verdict only upon the evidence at trial, which

consisted of sworn witness testimony and the exhibits received into

-12-
evidence. The jury was also instructed that the indictment "is no

evidence whatsoever of his guilt."

1. Motion to Dismiss

Having laid the groundwork, we turn our attention to

Campbell's arguments. Although Campbell's brief is by no means a

model of clarity, having studied the submission we surmise that he

takes issue with the denial of his day-of-trial motion to dismiss

the John Doe Indictment.7

 Campbell's argument goes something like

this: "[t]he trial court abused its discretion when it allowed the

indictment to read as 'United States of America v. John Doe, a/k/a

Tony a/k/a Rashide Campbell a/k/a Theotis Leonard.'" As such, he

was unfairly prejudiced by the multiple names on the John Doe

Indictment because, "[a]lthough this was never directly brought to

7 This must be the case, as the only other pretrial motion

regarding aliases--one not raised on appeal--was his day-beforetrial motion to amend the John Doe Indictment to name as the

defendant, "Theotis Leonard." 

Puzzlingly, Campbell also argues that the trial court abused

its discretion when it refused "[t]o [a]mend [t]he Government's

[i]ndictment [a]nd [i]dentify Mr. Campbell [a]s [o]nly 'Rashide

Campbell.'" The record fails to provide any factual basis

whatsoever for this argument. Such a motion was simply never made. 

What really happened is that, on the day before trial, defense

counsel made an "oral motion to have this indictment [i.e., the

John Doe Indictment] amended to United States of America versus

Theotis Leonard." After briefly hearing arguments from each side,

the trial judge ruled "[t]he indictment stands as it is," but

invited the parties to come to an agreement on a single name to be

used at trial. Not only did Campbell fail to object to this

invitation, but the parties in fact took the judge up on it,

stipulating the next morning to use the name "Rashide Campbell." 

As Campbell neither objected to this procedure at trial nor briefed

it on appeal, we need concern ourselves no further with Campbell's

request to amend the John Doe Indictment. 

-13-
the jury's attention, it is conceivable that the jury noticed the

numerous instances in which Mr. Campbell's name was changed." 

Then, after speculating that the jury became aware of his use of

aliases, Campbell further supposes he was "unfairly prejudiced by

the use of various names throughout the jury selection, the

multiple indictments, and the trial." 

From the tone of its brief, it appears the government is

not exactly sure what Campbell is attempting to argue with respect

to his aliases. Yet whatever his gripe, the government says the

blame for Campbell's woes lays squarely at his own feet. Campbell,

the government informs us, "insisted during pre-trial proceedings

on presenting himself initially as Theotis Leonard and then to the

jury as Doe." In sum, the government urges us to reject Campbell's

eleventh-hour objection to a situation of his own making, as in its

view doing otherwise would allow Campbell to benefit from his

deliberate attempts to conceal his identity.8 

We note first that Campbell may have forfeited any

objection to the propriety of the John Doe Indictment by waiting to

raise it until the first day of trial. Cf. United States v. PérezGonzález, 445 F.3d 39, 44 (1st Cir. 2006) (finding the defendant

forfeited objections to arrest warrant and post-arrest statements

where he "wait[ed] until the first day of trial" to raise them in

8

 The government further argues that Campbell's aliases were

"benign" at any rate, such that the jury is not likely to have been

prejudiced by them.

-14-
motion to suppress); see also Fed. R. Crim. P. 12(b)(3) (requiring

a motion alleging a defect in the indictment to be "raised before

trial"). But, while we also doubt that defense counsel adequately

placed his objection to the John Doe Indictment before the trial

judge, the trial judge nevertheless proceeded to rule on the

request. We too, then, will charitably deem the motion to dismiss

to have been properly raised before trial and review the trial

judge's decision accordingly. 

When reviewing the trial court's denial of a motion to

dismiss an indictment, we review questions of law de novo. United

States v. Lopez-Matias, 522 F.3d 150, 153 (1st Cir. 2008). If the

court makes factual findings, those findings are reviewed for clear

error. Id. Its "ultimate ruling," however, is reviewed for abuse

of discretion. Id. After carefully reviewing the record, we

conclude that the district court neither erred as a matter of law

nor abused its discretion in denying the motion to dismiss. 

Although not set forth by Campbell in a particularly

logical manner, the crux of his argument seems to be that the

original indictment against Rashide Campbell a/k/a Theotis Leonard

should never have been supplanted by the John Doe Indictment in the

first place. Notably, however, Campbell has not brought to our

attention, nor have we found, any authority supporting his

contention that the John Doe Indictment was improperly issued. The

government says the John Doe Indictment was proper because

-15-
"Campbell dubbed himself 'John Doe' and refused to admit he was

Rashide Campbell as originally indicted."

It has long been the law in this Circuit that

introduction of alias evidence at trial is proper where it is

relevant and does not prejudice a defendant. United States v.

Candelaria-Silva, 166 F.3d 19, 33 (1st Cir. 1999). Further,

"'[t]he use of an alias in an indictment and in evidence is

permissible if it is necessary to connect the defendants with the

acts charged.'" United States v. Hines, 955 F.2d 1449, 1454 (11th

Cir. 1992) (alteration in original) (quoting United States v.

Jorge-Salon, 734 F.2d 789, 791-92 (11th Cir. 1984)). To that end,

the admission of a defendant's alias in Candelaria-Silva--a

nickname--was not error because it was probative of his identity. 

166 F.3d at 33. Somewhat more recently, we reiterated that in a

situation "[w]here the use of an alias is important to the

government's case, its submission to the jury as part of the

indictment is permissible." United States v. McFarlane, 491 F.3d

53, 61 (1st Cir. 2007). Notably, in McFarlane we affirmed the

trial court where it allowed the jury to have a copy of the

indictment containing an alias during its deliberations. Id. at

60-61.

Thus, as our case law makes clear, a defendant's aliases

may be introduced at trial in cases where identity is at issue. 

Campbell himself admits, as he must, that who he actually was, was

-16-
hotly contested from the very moment he was taken into custody and

up to the day of trial and beyond. Because Campbell's identity was

a live issue when the grand jury returned the superseding John Doe

Indictment on October 26, 2011, it necessarily follows that the

Indictment setting forth all names known to have been used by

Campbell was proper. Similarly, it was not error for the trial

court to read the John Doe Indictment during jury empanelment when

Campbell's identity was still up in the air. And, finally, had the

parties not stipulated to using "Rashide Campbell" and "Tony,"

evidence of his aliases would unquestionably have been admissible

during his trial. See Candelaria-Silva, 166 F.3d at 33

(introducing defendant's alias at trial was proper and did not

prejudice the defendant where the alias was relevant to identity). 

Three weeks (including Thanksgiving) elapsed between

Campbell's jury selection and the start of trial. By the time the

jury next laid eyes on Campbell, the parties had entered the

pretrial stipulation barring the use during trial of the names

"John Doe" and "Theotis Leonard." The court and the prosecutor

followed through as agreed. At the close of the evidence, the copy

of the indictment sent to the jury had been redacted to identify

Campbell as "Rashide Campbell" only. So too did the jury verdict

form, which identified the case as "United States of America v.

Rashide Campbell, Defendant." Thus, the jury did not hear or see

Campbell referred to as anything other than "Rashide Campbell" or

-17-
"Tony" at any point during trial. Clearly, the trial court's

limitation on the names to be used removed any possible prejudice--

and we see none--to Campbell that may have resulted from the jury

hearing his multiple aliases during jury voir dire.

Having reviewed the entire record, we conclude there was

no merit to Campbell's motion to dismiss. As such, the trial judge

acted well within the bounds of his discretion in denying the

motion.9

B. Evidence of Prior Bad Acts

Moving on, Campbell next appeals the trial court's

admission, over his objection, of recorded conversations and

testimony with respect to other occasions on which he sold drugs to

Buchanan before August 22, 2011. Specifically, according to

Campbell, past drug transactions were not relevant to the single

act of distribution with which he had been charged and therefore

should not have been admitted at trial. He also believes testimony

9

 Before continuing on, we pause to clean up one last matter

on the issue of aliases. From the text of Campbell's brief, he

persists in his assertion that evidence of his aliases was admitted

at trial. He then asserts the jury may have inferred prejudicial

information about him due to his use of more than one name and he

states that "although this evidence [i.e., attempts to conceal his

identity] was allegedly excluded, there were various instances

throughout Mr. Campbell's trial in which Mr. Campbell was referred

to by another name."

The record is clear and shows beyond a shadow of a doubt that

the only names by which Campbell was referred to at trial were

"Rashide Campbell" or "Tony" as the parties had so stipulated. 

Campbell's suggestion that the trial judge somehow abused his

discretion by allowing him to be identified at trial exactly as

agreed upon is patently ludicrous.

-18-
about past sales invited the jury to improperly convict him on

"propensity evidence," rather than the crime actually charged. 

And, if those arguments fail, he further argues that even if

admissible, the probative value of the evidence of past drug

transactions was so outweighed by the danger of unfair prejudice

that the trial judge abused his discretion by declining to exclude

it under Rule 403 of the Federal Rules of Evidence. These alleged

errors, Campbell asserts, entitle him to a new trial.

The government, by contrast, says the evidence was

admissible. In the government's estimation, the evidence was

admitted not to show Campbell's propensity towards selling crack,

but rather to "complete the story" of the charged crime. And,

perhaps more importantly, the government argues that the evidence

of past transactions was directly relevant to the elements of the

charged crime itself, as it demonstrated Campbell's knowledge, 

intent, and lack of mistake with respect to the crack sale on

August 22, 2011. The government goes on, suggesting that admission

of the evidence did not unfairly prejudice Campbell.

1. The Evidence at Trial

We briefly lay out the contested evidence of prior bad

acts that was admitted at trial in order to place the parties'

arguments in context. It was not extensive. 

Buchanan was the government's "star witness" at trial. 

To that end, the government introduced his live testimony, along

-19-
with recordings of three telephone conversations and one in-person

conversation he had with Campbell, whom Buchanan knew as Tony. The

trial judge also allowed Buchanan to testify that he had a

relationship with Tony prior to August 2011, and permitted him to

explain in general terms how and why they were acquainted. 

The trial record shows prior drug sales were mentioned

only obliquely in two of the four recorded conversations and very

briefly in Buchanan's in-court explanation of the nature of their

relationship. In the recorded calls, neither Buchanan nor Campbell

explicitly refers to drugs, drug sales, or crack cocaine. Rather,

Buchanan apologizes for not being in touch with Campbell for some

time and asks if he is "still working." Buchanan then indicates he

"want[ed] to get a little more than [he] did," and asks if they can

"do a little more," because he would "like to get, you know, get a

whole, the whole onion, you know?" In the third recorded call--the

one in which Campbell told Buchanan to meet his "girlfriend"--the

closest Campbell comes is his own statement that they would "get

back to regular" after the August 22, 2011, transaction, which is

in reality a reference to future anticipated sales. None of the

other recordings contain any reference to prior drug sales.

Scant evidence of past drug sales was introduced through

Buchanan's live testimony. As we discussed earlier, Buchanan

explained at trial that in August 2011 he knew Campbell as Tony and

that Buchanan himself used the name Josh, which was part of his

-20-
cover as an individual looking to buy drugs from Tony. Buchanan

further testified that he knew Tony's voice from past phone

conversations and from in-person meetings in which Buchanan

obtained from Tony substances that he believed to be crack cocaine. 

Importantly, the rest of the testimony and audio recordings focused

on the August 22, 2011, sale for which Campbell was charged.

2. Legal Framework

We analyze the propriety of the trial judge's admission

of prior bad acts evidence under the aegis of Rules 404(b) and 403

of the Federal Rules of Evidence, and our review is for abuse of

discretion. See United States v. Appolon, 715 F.3d 362, 372-73

(1st Cir.) (trial court's admission or exclusion of evidence

regarding prior uncharged conduct reviewed for abuse of

discretion), cert. denied, 134 S. Ct. 335 (2013); United States v.

DeSimone, 699 F.3d 113, 125 (1st Cir. 2012) (trial court's Rule 403

balancing determinations reviewed for abuse of discretion). 

Rule 404(b)'s familiar language provides that "[e]vidence

of a crime, wrong, or other act is not admissible to prove a

person's character in order to show that on a particular occasion

the person acted in accordance with the character." Fed. R. Evid.

404(b)(1). As we have explained, Rule 404(b) only prohibits

evidence of prior bad acts when such evidence is introduced "for

the sole purpose of proving that a defendant had a propensity to

commit a crime." United States v. Rodríguez-Berríos, 573 F.3d 55,

-21-
64 (1st Cir. 2009). The Rule continues, however, and provides that

this type of evidence "may be admissible for another purpose, such

as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident." 

Fed. R. Evid. 404(b)(2). Thus, we must consider whether the

evidence has "special relevance," by which we mean that it is

relevant for any purpose apart from showing propensity to commit a

crime. Rodríguez-Berríos, 573 F.3d at 64. If "special relevance"

is found, this does not automatically mean that it should be

introduced to the jury. This is because Rule 403 provides that a

trial "court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of . . . unfair prejudice." 

Fed. R. Evid. 403. In accordance with its language, however,

"defendants are protected only 'against unfair prejudice, not

against all prejudice.'" United States v. Gentles, 619 F.3d 75, 87

(1st Cir. 2010) (quoting United States v. Rivera-Gomez, 67 F.3d

993, 997 (1st Cir. 1995)). Under an abuse of discretion standard

we afford deference to a trial judge's balancing decision, and

"'[o]nly rarely--and in extraordinarily compelling circumstances--

will we, from the vista of a cold appellate record, reverse a

district court's on-the-spot judgment concerning the relative

weighing of probative value and unfair effect.'" United States v.

Li, 206 F.3d 78, 84-85 (1st Cir. 2000) (quoting Freeman v. Package

Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). 

-22-
a) Admissibility under Rule 404(b)

We begin our two-step analysis with Rule 404(b) to 

determine first if this rule is an absolute bar to the contested

prior bad acts evidence. Despite Campbell's protestations, the

evidence of past drug transactions clearly has "special relevance"

as it went towards several purposes other than establishing

Campbell's propensity for selling drugs. First, it painted a

picture of the relationship between Campbell and Buchanan, thereby

providing the jury with context surrounding the drug sale. 

Buchanan's testimony explained how it was that he knew Campbell on

the date of the first recorded phone call. Otherwise, the jury

would be at a loss as to why Buchanan called Campbell in the first

place. Buchanan's in-court testimony provided context to that

conversation by explaining what he meant when he asked for "a

little more" than last time and what he was looking for in a "whole

onion." Buchanan's testimony further established the prior

relationship between the two men, one which Campbell intended to

continue into the future as evidenced by his statement that he was

going to hook Buchanan up so that he would return as a customer.

This "[e]vidence of prior conduct [was] admissible to complete the

story of the crime on trial by proving its immediate context of

happenings near in time and place." United States v. D'Alora, 585

F.2d 16, 20 (1st Cir. 1978) (citations omitted) (internal quotation

marks omitted); see also United States v. Arias-Montoya, 967 F.2d

-23-
708, 712-13 (1st Cir. 1992) (noting evidence may have "special

relevance" where it shows a "common scheme or suggested course of

continuous dealing" or where "the earlier bad act [is] likely to

provide context or complete the story of the one subsequently

charged").

In addition, the challenged evidence corroborated

Buchanan's in-court identification of Campbell, which as detailed

above was contested right up to the morning of trial. Evidence of

prior dealings between Buchanan and Campbell was directly relevant

to establishing the identity of the individual from whom Buchanan

purchased drugs on August 22, 2011. Buchanan's in-court testimony

and the recorded telephone conversations demonstrated that Buchanan

had known and interacted with Campbell for several months prior to

the August drug deal. That Buchanan had previously purchased drugs

from Campbell and spoken with him on the phone was highly relevant

to Buchanan's ability to identify Campbell, both on August 22,

2011, and again at trial. Such identification evidence is not

prohibited by Rule 404(b) because it has nothing at all to do with

a defendant's propensity to commit a crime.

Finally, Campbell's previous sales to Buchanan were

highly probative of multiple elements of the crime charged. 

Evidence of prior transactions was relevant to the critical

questions of Campbell's knowledge that the substance was in fact

crack and to show that he intended to distribute that crack. 

-24-
Indeed, we have "often upheld the admission of evidence of prior

narcotics involvement to prove knowledge and intent." United

States v. Manning, 79 F.3d 212, 217 (1st Cir. 1996). Just as in

Manning, evidence that Campbell sold drugs to Buchanan in the past

makes it more likely that he was aware the substance he provided to

Buchanan on August 22, 2011, was crack and that he in fact intended

to distribute it to Buchanan on that day. See id. 

In sum, the evidence of past drug transactions between

Campbell and Buchanan was relevant to the critical issues of

identity, intent, and knowledge. Moreover, it served to provide

context to the first recorded telephone call and to complete the

story of the relationship between the two men, which had begun

months prior to his arrest and which Campbell intended to continue

indefinitely into the future. As such, Rule 404(b) did not

prohibit its admission. 

b) Rule 403 Analysis

Even though the evidence was not barred by Rule 404(b),

our inquiry does not end there. We must focus on the second prong

of the admissibility test and consider whether the evidence,

although relevant, should nevertheless have been excluded under

Rule 403. This requires us to determine whether the trial judge

should, in the exercise of his discretion, have concluded that the

evidence's probative value was substantially outweighed by the

danger of unfair prejudice. 

-25-
Keeping these principles in mind, we first observe that

the probative value of the evidence was great. In order to secure

a conviction, the government needed to prove that Campbell was the

specific individual who distributed illegal drugs to Buchanan, that

Campbell knew the substance was an illegal drug, and that he

intended to distribute it to Buchanan. Thus, evidence showing that

Campbell sold drugs to Buchanan in the past and hoped to continue

selling drugs to him in the future was highly probative of these

critical elements. See United States v. Spinosa, 982 F.2d 620,

628-29 (1st Cir. 1992) (finding evidence regarding the defendant's

involvement in prior drug sales "highly probative of matters of

special relevance in the case: knowledge, intent, and lack of

accident or mistake in cocaine dealing").

Furthermore, the danger of unfair prejudice in no way

"substantially outweighed" the evidence's considerable probative

value. We note that when the evidence was introduced over the

defendant's objection, the trial judge offered to provide the jury

with a limiting instruction. However, defense counsel explicitly

declined:

The Court: All right. Now, I just want to be

clear on the record, I'm perfectly happy to

give you an instruction on prior [bad] acts. 

I assume you don't want it because you don't

want to emphasize it.

Mr. Maselli: Exactly, Your Honor. Thank you

very much and I appreciate the opportunity.

The Court: So you're waiving that?

-26-
Mr. Maselli: Yes. 

Defense counsel thus made a tactical decision to turn down the

court's invitation so as to avoid highlighting the past

transactions to the jury.10 While not necessarily dispositive in

light of the trial judge's refusal to exclude prior acts evidence,

the knowing waiver of this instruction is probative of the scant

prejudice ascribed to the evidence by defense counsel, who, of

course, was ideally positioned to make a contemporaneous first-hand

determination as to the evidence's actual effect upon the jury. 

Moreover, a fair reading of the record demonstrates the

case was always presented to the jury in terms of a singular drug

transaction, rather than as one link in a continuing chain of

sales. In his introductory remarks, the trial judge informed the

jury that Campbell was charged with "distribut[ing] cocaine base on

or about August 22, 2011," which required the government to prove

"beyond a reasonable doubt" that "on the date alleged . . .

[Campbell] transferred cocaine base to another person." The

testimony throughout trial focused precisely on that single alleged

10 Thus, Campbell has waived any argument on appeal that he may

have been prejudiced by the lack of a limiting instruction. It is

worthwhile to note, however, that in Manning we found that a trial

court's instructing the jury "about the proper use of prior bad act

evidence" serves to "minimize[] any prejudicial impact of the prior

drug dealing evidence." 79 F.3d at 217. Here, of course, defense

counsel explicitly waived a limiting instruction. Nevertheless,

the jury was told in no uncertain terms to concern itself only with

the single transaction alleged to have taken place on August 22,

2011, which further blunts Campbell's claims of unfair prejudice. 

-27-
transaction. Only the first recorded conversation had anything at

all to do with past sales, and contained coded words for "drugs,"

"cocaine," and "crack" that required explanation at trial. And

Buchanan's testimony touching upon the past sales was nonspecific

and general, serving only to provide background information for the

jury.

Furthermore, in his closing argument the prosecutor

emphasized his view that the evidence proved beyond a reasonable

doubt that Campbell sold drugs to Buchanan "on August 22nd,"

uttering that exact phrase a total of eight times. He referred to

a single sale throughout, and asked the jury to find beyond a

reasonable doubt that "on August 22nd, 2011, this defendant,

Rashide Campbell, also known as Tony, intentionally distributed

cocaine base knowing it was cocaine base." The trial judge then

instructed the jury that the defendant was charged with

distributing "cocaine base on or about August 22nd, 2011," and that

to return a guilty verdict it must find beyond a reasonable doubt

"that on or about the date alleged, the defendant transferred

cocaine base to another person."

Overall, while there was some mention of prior drug

transactions, the trial was clearly focused on the August 22, 2011,

transaction. The prosecutor did not make any argument in his

opening or closing that would have invited the jury to consider the

past transactions or to convict him on the basis of uncharged

-28-
conduct. And, of course, the evidence was highly probative as it

went directly to Campbell's identity, along with his knowledge,

intent, and lack of mistake when he sold crack to Buchanan on

August 22, 2011. As such, and after careful review of the entire

record, we are satisfied the district court did not abuse its

discretion by resolving the Rule 403 balancing of unfair prejudice

versus probative value in favor of admitting the evidence. 

C. Sentencing

Having disposed of Campbell's objections to his

conviction, we turn to his various objections regarding the length

of his twenty-year sentence, which coincides with the maximum

penalty for the crime charged. See 21 U.S.C. § 841(b)(1)(C). The

John Doe Indictment did not allege any amount of cocaine base for

which Campbell was responsible. Neither party asked for the jury

to make a finding with respect to drug quantity.

At sentencing, the district court found Campbell

responsible for distributing 280 grams of cocaine base. The

district court applied sentencing enhancements based on its

findings that Campbell had engaged in acts of violence, used a

firearm in connection with the offense, and was a manager or

supervisor of a drug conspiracy. These enhancements produced a

guideline sentencing range well in excess of the twenty-year

maximum. As such, the court imposed the maximum sentence. 

-29-
Campbell now raises several objections to the sentencing

procedure employed by the trial judge and asks us to return this

matter for resentencing.11 We have carefully considered Campbell's

arguments and find them to be without merit. 

1. Judicial factfinding after Alleyne

The trial judge utilized a preponderance of the evidence

standard when figuring out the amount of drugs for which Campbell

could be held responsible. This was unquestionably proper under

our precedent at the time of sentencing. United States v. Mills,

710 F.3d 5, 15 (1st Cir. 2013) (recognizing drug quantities need

only be found by a preponderance of the evidence). Campbell tells

us in supplemental briefing, however, that our jurisprudence in

this area has since been overruled by the Supreme Court in Alleyne

v. United States, 133 S. Ct. 2151 (2013). As Alleyne was decided

during the pendency of Campbell's appeal, we apply it here. 

Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ("[A] new rule for

the conduct of criminal prosecutions is to be applied retroactively

to all cases, state or federal, pending on direct review or not yet

final . . . .").

According to Campbell, in the wake of Alleyne any fact

that increases a mandatory minimum sentence must now be found by a

jury. Campbell begins his attempt to convince us to vacate his

11 As the trial judge also presided over the sentencing

hearing, we continue to refer to the "trial judge" in the interests

of consistency.

-30-
sentence by observing that the jury convicted him of the August 22,

2011, transaction only, which the evidence at trial showed involved

a total of 6.9 grams of crack. This amount and this amount alone,

he says, is what the government proved beyond a reasonable doubt

and could be attributable to him. According to Campbell, this drug

quantity would have led to a guidelines sentencing range of between

fifty-one and sixty-four months. He argues that the trial judge

impermissibly imposed the maximum twenty-year sentence after

finding him responsible for distribution of 280 grams of crack

using the preponderance of the evidence standard. In Campbell's

view, this type of judicial factfinding violates the undergirding

precepts of Alleyne and requires resentencing. 

While the government appears to agree with Campbell's

description of Alleyne's holding, at least in broad terms, it

contends that Alleyne does not have anything to say about the

judicial factfinding conducted in this instance because it had no

effect on the statutory range of penalties to which Campbell was

exposed. At all times, according to the government, the maximum

penalty by statute was a twenty-year prison term, which was not

altered in any way by the trial judge's drug quantity

determination. The government thus urges us to find there was no

Alleyne violation. We agree with the government's position: 

Campbell's reliance on Alleyne is misplaced, as the Supreme Court's

teaching simply does not apply here.

-31-
In Alleyne, the Supreme Court extended the rule requiring

a jury to find, beyond a reasonable doubt, any fact that increases

a maximum statutory penalty to any fact that requires imposing a

statutory minimum penalty. See Alleyne, 133 S. Ct. at 2160 (citing

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Alleyne

recognizes that "a fact triggering a mandatory minimum alters the

prescribed range of sentences to which a criminal defendant is

exposed." Id. Thus, "a fact increasing either end of the

[sentencing] range produces a new penalty and constitutes an

ingredient of the offense." Id. Such facts must be submitted to

and found beyond a reasonable doubt by a jury, not by a judge

utilizing a preponderance of the evidence standard at a sentencing

hearing. Id. at 2162-63.

 While we leave an exhaustive treatment of Alleyne for an

appropriate case, it is sufficient for our purposes to observe that

even if there is any merit to Campbell's premise about the effect

of Alleyne--which we do not here address--his conclusion does not

follow from the premise. This is because, as the Supreme Court

went to great lengths to point out, there remains a place for

"judicial factfinding" at sentencing, even in the post-Alleyne

world. Id. at 2163. As the Court explicitly told us, judicial

factfinding is still permissible "within the range authorized by

law." Id. The import of all this is that it remains within the

sentencing court's discretion to judicially find facts informing

-32-
the sentence actually imposed, provided that any such fact does not 

trigger a mandatory minimum punishment or alter a statutory

maximum, and that the ultimate sentence remains within the range of

penalties set forth in the statute of conviction. In such a

situation, Alleyne does not apply, and the sentencing court may

continue to find facts based upon a preponderance of the evidence. 

This case aptly illustrates the principle. 

The indictment against Campbell did not charge him with

distribution of any specific amount of cocaine base. It simply

charged distribution in violation of 21 U.S.C. § 841(a), and went

on to allege that the penalty provisions found in 21 U.S.C.

§ 841(b)(1)(C) apply. Section 841(b)(1)(C) sets forth the maximum

sentence that may be imposed on a defendant "responsible for an

unspecified amount of crack." United States v. Goodine, 326 F.3d

26, 27 (1st Cir. 2003). Importantly, that section provides a

ceiling, but no floor: 

. . . any person who violates subsection (a)

of this section shall be sentenced as follows:

* * * 

(1)(C) In the case of a controlled substance

in schedule I or II . . . such person shall be

sentenced to a term of imprisonment of not

more than 20 years . . . . 

21 U.S.C. § 841(b). Thus, the range of punishment for distribution

of an unspecified amount of crack enshrined by statute ranges from

-33-
anywhere from no jail time at all, all the way up to twenty years'

imprisonment. 

As a result of the jury's guilty verdict, this is

precisely the range of punishment facing Campbell, regardless of

whether he distributed 6.9 grams or 280 grams of crack. And a

penalty within this range--twenty years--is precisely what was

meted out to him. The judicial factfinding in this case simply

does not implicate Apprendi or Alleyne because it had no effect

whatsoever upon the range of penalties provided by law. Alleyne,

therefore, does not require us to vacate Campbell's sentence.12

12 In his initial brief (submitted before the Supreme Court

handed down Alleyne), Campbell relies on McMillan v. Pennsylvania,

477 U.S. 79, 88 (1986), to argue that the evidence of past drug

distribution introduced at the sentencing hearing was so extensive

and led to such an increase in jail time that it became the "tail

which wags the dog of the substantive offense." This argument is

without merit in light of Alleyne and Apprendi, as neither case

requires a beyond a reasonable doubt finding of drug quantity at

sentencing where the drug quantity finding does not alter the

minimum or maximum punishment. In addition, Campbell seemingly

argues that the amount of evidence regarding the scope and duration

of his drug distribution efforts introduced at the sentencing

hearing somehow violated his due process rights, although he never

specifies why he believes this is so. The closest he comes to an

explanation appears in the next to last sentence of his brief,

where Campbell asserts--without any citation to authority--that his

sentence should be vacated because the large volume of evidence

presented at the sentencing hearing shows "that the Government was

merely trying to skirt around Mr. Campbell's fundamental right to

a trial." As this objection was neither raised at sentencing nor

developed in his brief, and because we conclude the trial judge did

not err in his application of the Sentencing Guidelines, we do not

consider this perfunctory argument. 

-34-
2. Evidentiary Challenges

We move on. The trial judge committed reversible error,

Campbell supposes, when he made certain findings with respect to

drug quantity, Campbell's use of violence and/or firearms, and

Campbell's role as a manager or supervisor in a drug conspiracy. 

According to Campbell, the trial judge erred because he based his

findings on unreliable testimony and insufficient evidence. This

improper factfinding, Campbell suggests, was procedural error which

resulted in an increase in the upper limits of Campbell's

sentencing range and thereby influenced the trial judge's final

sentencing decision. 

First, Campbell argues the trial judge was "manifestly

unreasonable" in holding him responsible for the distribution of

280 grams of crack. Disregarding his attorney's concession in his

October 9, 2012, sentencing memorandum that he could be held

responsible for distribution of 105.8 grams, Campbell now takes the

position that he may not be held responsible for anything more than

the 6.9 grams he sold to Buchanan on August 22, 2011.13 He posits

that the trial judge's drug quantity determination was based on

nothing more than uncorroborated and unreliable testimony from drug

13 Campbell's sentencing memorandum addressed both actual sales

(to individuals connected to law enforcement) and estimated sales

referenced in the Presentence Investigation Report and concluded,

"[t]hus, adding the actual amount derived from hand to hand sales

to the historical sales projected by the probation office but using

more realistic figures, the total weight involved should be 105.8

grams of crack cocaine." 

-35-
users who testified only in the hope of receiving leniency in their

own pending drug cases. Similarly, he argues that because the only

evidence he engaged in violence, used a firearm, or acted as a

manager or supervisor in a drug conspiracy was provided by these

unreliable drug users, their testimony is insufficient to satisfy

even a preponderance of the evidence standard. Without these

putative errors, Campbell believes that he should have been given

a sentence between fifty-one and sixty-four months in length.

At their heart, Campbell's arguments boil down to griping

about the quality of the evidence at the sentencing hearing, which

of course was conducted by the same judge who presided at his trial

and was presumably quite familiar with the issues. Not

surprisingly, the government believes ample evidence supported the

judge's determinations and urges us to uphold them in their

entirety.

Before diving into the record once again, we set forth

the parameters of our review. While the trial court's application

of the sentencing guidelines is subject to de novo review, its

findings of fact shall stand unless affected by clear error. 

United States v. Batchu, 724 F.3d 1, 7 (1st Cir. 2013), cert.

denied, 82 U.S.L.W. 3299 (U.S. Nov. 18, 2013). Pursuant to this

standard, "we must honor the sentencing court's findings 'unless,

on the whole of the record, we form a strong, unyielding belief

that a mistake has been made.'" United States v. Bernier, 660 F.3d

-36-
543, 545 (1st Cir. 2011) (quoting Cumpiano v. Banco Santander P.R.,

902 F.2d 148, 152 (1st Cir. 1990)). As neither Alleyne nor

Apprendi is implicated in this instance, the court needed only to

find facts based on the long-standing preponderance of the evidence

standard. See Mills, 710 F.3d at 15.

The rules of evidence at sentencing are "considerably

less rigorous" than those at trial and permit the court to consider

any evidence with "'sufficient indicia of reliability to support

its probable accuracy.'" United States v. Cintrón-Echautegui, 604

F.3d 1, 6 (1st Cir. 2010) (quoting United States v. Zapata, 589

F.3d 475, 485 (1st Cir. 2009)). Accordingly, the sentencing court

may rely upon "'virtually any dependable information,'" including

statements which have not been subjected to the crucible of crossexamination and information appearing in a presentence report. Id.

(quoting United States v. Sklar, 920 F.2d 107, 110 (1st Cir.

1990)). When the court hears live testimony subject to crossexamination, its "plausible credibility determinations cannot be

disturbed on appeal." United States v. Soto-Beníquez, 356 F.3d 1,

52 (1st Cir. 2003). And with respect to drug quantity, the

sentencing court is not required to make drug quantity findings

with exactitude but may rest its findings upon a "'reasoned

estimate[]'" of the amount of drugs a defendant has been

responsible for over time. Bernier, 660 F.3d at 546 (alternation

in original) (quoting United States v. Platte, 577 F.3d 387, 392

-37-
(1st Cir. 2009)). Overall, a sentencing court's factual findings

will stand unless affected by clear error. United States v. Jones,

523 F.3d 31, 40-41 (1st Cir. 2008).

Here, the court considered the probation department's

Presentence Investigation Report ("PSR") and live testimony from

six witnesses, each of whom was subject to cross-examination. 

Campbell also exercised his right of allocution. We have reviewed

the sentencing record and discern no error. 

Beginning with the documentary evidence, the PSR

indicates the government became aware of Campbell's drug

trafficking activities sometime in 2010. As part of its

investigation, the government secured the assistance of a

cooperating witness, who with an undercover agent (sometimes

separately and sometimes together), bought a total of 20.5 grams of

a substance containing crack from Campbell in February and March of

2011. The undercover agent engaged in three more drug buys from

the end of March through the end of April 2011, obtaining an

additional 18.9 grams. The PSR also included the August 22, 2011,

sale. Although adding these transactions together yields a

quantity of 47.9 grams, the parties agreed that according to the

laboratory reports, the total quantity of crack distributed in

these transactions amounted to 33.8 grams.

The PSR goes on to describe the scope of Campbell's drug

operation in the Portland area. According to the PSR,

-38-
Campbell–known to various witnesses as "Tony," "G," or "Glen

Dixon"--partnered with another individual known as "New York" to

sell crack from at least three crack houses in Portland. At some

point, Campbell stopped working with "New York" and took over the

operations himself, during which time he had at least four people

working for him as "runners" and/or selling product out of the

crack houses. Based on information from cooperating witnesses

about the amount of sales at a single crack house over the course

of three months, the probation department determined Campbell was

responsible for the sale of at least 144 grams of crack from that

location alone. 

Additionally, the PSR indicates Campbell had committed

acts that could result in a stiffer sentence. Specifically, the

PSR concluded that Campbell attempted to conceal his identity when

he was arrested. With respect to his drug dealing, the PSR

concluded Campbell acted as a manager or supervisor, physically

assaulted an associate during the course of drug dealing, and used

a minor in his criminal activities. All told, the PSR states

Campbell's total offense level is thirty-seven, translating to a

guideline sentence of seventeen-and-a-half to nearly twenty-two

years behind bars. See U.S.S.G. Sentencing Table (2011).

But this is not all the trial judge had available to

consider. At the sentencing hearing, the government called three

witnesses to testify regarding Campbell's drug sales, along with a

-39-
law enforcement agent (not Buchanan) who testified to Campbell's

use of aliases. Campbell called two witnesses to speak on his

behalf. Each of these witnesses was subjected to crossexamination.

An exhaustive review of the sentencing testimony is

unnecessary. It is enough to note that evidence was introduced of

the facts we now relate. 

The government's three witnesses knew Campbell as "Tony"

or "G." He was "business partners" with another individual they

knew only as "New York." Campbell and "New York" worked together

to bring drugs in from out-of-state to sell in Portland. Their

partnership lasted approximately nine months before they had a

falling out, after which Campbell went off on his own and took over

certain of the drug selling locations. 

During the nine months Campbell and "New York" worked

together, numerous individuals--between twenty and twenty-five

according to one witness--worked for them, selling drugs out of

multiple crack houses in the Portland area. A typical day at just

one of those locations resulted in sales to between twenty to

twenty-five customers on a "bad day" and seventy-five to one

hundred customers on a "good day." On a "bad day," customers would

generally purchase a "50 piece," which costs $50 and usually

contains .2 to .3 grams of crack. The particular crack house

referred to by the witnesses was open for business twenty-four

-40-
hours per day, seven days a week, with sales ranging from $500 on

a slow day to $5,000 or more on a busy day. 

There was also evidence that Campbell committed a violent

assault on another drug dealer. One witness testified Campbell

came to her apartment--which Campbell had used for selling drugs--

while a "kid" who did not work for him was there selling. Campbell

then waved a handgun around and hit the "kid" with it. Another

witness told the court that Campbell specifically went to the

apartment so he could fight the "kid." This second witness opened

the door to let Campbell in, saw him enter with a gun in hand, and

later found out that Campbell "bashed this kid in the face" with

it. 

After taking testimony, the trial judge stated he would

find the facts set forth in the PSR. He also found Campbell

responsible for "at least 280 grams of cocaine base," a number he

described as "very conservative" because Campbell "could reasonably

have been held accountable for several times that amount." The

judge also found that Campbell engaged in violence, possessed a

firearm in connection with his drug sales, and "was a

supervisor/manager of [a] drug conspiracy which was, in [his] view,

extensive and prolonged and consisted of more than five people that

operated out of multiple locations and operated for extended

periods of time." Finally, the judge added an enhancement for

obstruction of justice because Campbell used a "false name in order

-41-
to confuse the booking procedure." The drug quantity and

enhancements resulted in a guidelines range of twenty-seven to

almost thirty-four years. The judge, however, imposed a twentyyear sentence to comport with the statutory maximum. 

Despite the amount of evidence introduced at sentencing,

Campbell would have us find the trial judge erred in his drug

quantity determination and sentence enhancement findings. We are

not convinced. 

First, there is no doubt the trial judge found the

government's witnesses credible and accepted their testimony in

large measure. The record reveals their testimony was generally

consistent not just with the other witnesses, but also with the

PSR. Rigorous cross-examination exposed any infirmities or bias on

the part of the witnesses. As we do not have the benefit of

observing the witnesses and evaluating their demeanor, we are loath

to disturb the district court's credibility determinations, which

we certainly consider "plausible." Therefore, we uphold the

district court's imposition of enhancements for use of violence,

possession of a firearm, and for being a manager/supervisor in a

drug conspiracy, based as they were on credible witness testimony

and reliable information in the PSR.

This leaves us with Campbell's challenge of the trial

judge's drug quantity determination, which only needed to be a

reasoned estimate of the amount of drugs for which Campbell was

-42-
responsible. See Bernier, 660 F.3d at 546. Like the others, this

finding was based in large part on the trial judge's evaluation of

live witness testimony regarding Campbell's drug operation, which

already puts Campbell's argument in a deep hole. In addition, we

agree with the trial judge's description of 280 grams as a "very

conservative" number in light of the evidence introduced at

sentencing. Taking the minimum sales and drug weights testified

to--and at the same time completely ignoring the "good days," sales

at other crack houses, and all sales after Campbell split from "New

York"--yields more than 1,000 grams sold from that one crack house

over the course of nine months, a number far in excess of the 280

grams found by the trial judge. 

We further note that the PSR concluded Campbell was

responsible for distributing at least 144 grams of crack in a

three-month period. This extrapolates to a nine-month total of 432

grams, which when added to the 33.8 grams to which Campbell

conceded yields a total of 465.8 grams. Thus, the documentary

evidence alone provides support for the trial judge's finding that

Campbell was responsible for distribution of at least 280 grams of

crack. 

The trial judge, of course, was entitled to rely on the

witness testimony, the PSR, or a combination of the two. Even

applying the most conservative estimates available leads to a drug

quantity finding in excess of 280 grams. We are satisfied,

-43-
therefore, that the trial court made a reasoned estimate of drug

quantity based upon the evidence before it. 

In sum, Campbell's challenge to the district court's

findings of fact is without merit. Far from leaving us with the

unyielding feeling that a mistake has been made, the trial judge's

sober consideration of the PSR and live testimony strikes us as

eminently reasonable. The court correctly determined that the

combination of drug quantity and sentence enhancements translated

to a guidelines range in excess of the statutory maximum, and

appropriately reduced the sentence to conform with that maximum. 

Once again, there was no error.

CONCLUSION

Campbell has not convinced us that his trial or sentence

was affected by any error. His conviction and sentence are hereby

affirmed in all respects.

-44-