1 This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After

examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus the appeal

is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2). 

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted March 11, 20081

Decided August 27, 2008

Before

WILLIAM J. BAUER, Circuit Judge

DIANE P. WOOD, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

Nos. 07‐3050

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

RICHARD TAYLOR,

Defendant‐Appellant.

Appeal from the United States District

Court for the Central District of Illinois.

No. 04 CR 10040

Michael M. Mihm,

Judge.

O R D E R

This case is before us for the second time.  The first time it was before us, we

vacated a jury’s special finding regarding drug quantity on the basis that the jury had

been allowed to rely on inadmissible hearsay evidence.  United States v. Taylor, 471 F.3d

832 (7th Cir. 2006).  As a result, we vacated Richard Taylor’s sentence and remanded to

the district court for resentencing.  On remand, the district court found Taylor

responsible for at least 801 marijuana plants.  Taylor now argues that the district court’s

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07-3050 2

2 As we noted before, however, the plants were not in their original form but were displayed with their leaves

separated from their stalks. 

drug quantity determination is clearly erroneous because the district court relied on the

same evidence improperly considered by the jury.  Because district courts are allowed

to consider reliable hearsay evidence for sentencing purposes, and because the district

court’s finding was based on reliable evidence, we conclude that the district court did

not err and affirm Taylor’s sentence.

I.  BACKGROUND

A jury found Taylor guilty of manufacturing and possessing with the intent to

manufacture more than 1000 marijuana plants.  At trial, Detective John Atteberry and

Detective Kenneth Bays testified about the quantity of marijuana plants and concluded

that 1417 plants were found in Taylor’s yard.  

On appeal, we held that the trial court committed error by allowing Detectives

Atteberry and Bays to testify about the total number of plants counted because neither

had counted 1417 plants alone.  Rather, the two detectives, along with Detective Tim

McCoy, had divided the plants seized from Taylor’s residence and conducted

individual counts.  Detective Bays then added up each detective’s count, which resulted

in a total of 1417 plants.  Because Detective McCoy did not testify at trial, we held that

by allowing Detectives Atteberry and Bays to testify regarding the total number of

plants, the district court improperly admitted McCoy’s out‐of‐court statements to prove

Taylor was responsible for more than 1000 marijuana plants.  The government

presented photographs of the plants growing in Taylor’s home as well as the actual

plants themselves2 but without the testimony of the detectives, the other evidence

regarding the number of plants was not sufficient to establish that more than 1000

plants were found at Taylor’s home.  

On remand, the district court found that Taylor should be held accountable for

“at least 801 plants” and sentenced him to sixty‐six months’ imprisonment and four

years of supervised release.                

II.  ANALYSIS

Taylor’s sole argument on appeal is that the district court erred in finding him

responsible for at least 801 marijuana plants.  We review the district court’s findings as

to drug quantity for clear error.  United States v. Wilson, 481 F.3d 475, 483 (7th Cir. 2007).  

In reaching its determination, the district court relied on “the evidence that was

submitted at the trial, the pictures, the DVD of the plants growing and the testimony of
No. 07-3050 3

the two officers.”  The district court also noted that it could consider hearsay evidence

for the purposes of sentencing and that it found the evidence presented at trial to be

“quite credible.”  

There is ample evidence in the record to support the district court’s finding.

Detectives Bays and Atteberry testified that they, along with Detective McCoy, counted

a total of 1417 plants, and the district court found this to be credible testimony.

Nevertheless, the district court (believing itself to be constrained by our previous

opinion) found Taylor to be responsible for considerably less, determining he should be

held responsible for “at least” 801 plants.  The district court reached this number by

calculating the minimum number of plants necessary to impose a certain sentence and

then added one.  Although Taylor contends that this method of calculation is suspect,

he does not demonstrate that the determination is erroneous.  Cf. United States v. Acosta,

534 F.3d 574, 582 (7th Cir. 2008) (“Drug quantity for purposes of determining the

applicable sentencing guideline may be established by the use of reasonable

estimates.”).  Indeed, based on the testimony of the detectives, the district court could

have found Taylor responsible for as many as 1417 plants but erred on the side of

understating, rather than overstating, the drug quantity attributable to Taylor.  

Taylor also argues that the district court improperly relied on the same evidentiary

basis (i.e., the pictures, the DVD of the plants growing, and the testimony of the two

detectives) that we held legally inadequate to support the jury’s finding that Taylor was

accountable for more than 1000 plants. Although it was error for the jury to consider

this testimony, “judges are allowed to rely on hearsay evidence during sentencing so

long as that evidence is reliable and the defendant is afforded a reasonable opportunity

for rebuttal.”  United States  v. Omole, 523 F.3d 691, 701‐02 (7th Cir. 2008).  Taylor does

not provide any reason why the evidence considered by the district court was

unreliable.  Therefore the district court’s finding was not clearly erroneous.   

III.  CONCLUSION

The sentence is AFFIRMED.