United States v. Hollins, Darius

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2659

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARIUS HOLLINS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 CR 376—Harry D. Leinenweber, Judge.

____________

ARGUED APRIL 12, 2007—DECIDED AUGUST 17, 2007

____________

Before RIPPLE, EVANS and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Darius Hollins was convicted of

conspiracy and attempt to import cocaine. See 21 U.S.C.

§§ 952, 963. He initially was sentenced to a term of 188

months’ imprisonment. In a prior appeal, we vacated that

sentence and remanded for resentencing in light of United

States v. Booker, 543 U.S. 220 (2005). United States v. Chairs,

141 F. App’x 467, 468 (7th Cir. 2005). On remand, the

district court imposed a sentence of 151 months’ imprison-

ment. Mr. Hollins timely appeals his sentence. For the

reasons stated in this opinion, we affirm the judgment of

the district court.

2 No. 06-2659

I

BACKGROUND

A. The Facts Presented at Trial and Mr. Hollins’ Convic-

tion

Mr. Hollins was charged and convicted for his role in a

scheme to smuggle cocaine from Jamaica. The indictment

charged that he and others, including Carl Wilson, had

conspired with “Mark,” their drug contact in Jamaica, to

import cocaine into the United States. It also charged Mr.

Hollins with two specific attempts to import cocaine

into the United States and charged a third attempt involv-

ing only Wilson and Mark.

At Mr. Hollins’ trial, the Government produced sub-

stantial evidence of the two individual trips charged in the

indictment. The first of these trips (“the Reynolds trip”)

involved three women couriers, Sheron Reynolds, Tammie

Dixon and LaTonya McDonald, who testified at Mr.

Hollins’ trial. According to the women, Reynolds had been

recruited by Wilson, and she recruited Dixon and McDon-

ald. Reynolds and Dixon met with both Wilson and

Mr. Hollins before their trip, and the night before they left,

all three women were briefed by both men. Mr. Hollins

negotiated the women’s fees, and Wilson transported

them to the airport and provided them with significant

cash for the deal. Upon arriving in Jamaica, the women

were met at the airport by “Marcus,” the Jamaican con-

tact. Marcus took them to a hotel where they stayed for

several days. On the day before the women were sched-

uled to leave, Marcus arrived at the hotel and furnished

them with pouches that contained cocaine, as well as

lubricating jelly. He also instructed them on how to carry

the cocaine in body cavities. The following day, Marcus

No. 06-2659 3

returned and drove the women to the airport. Upon

arriving at O’Hare Airport, the women were stopped by

customs officials who discovered their illicit cargo. Mr.

Hollins stipulated that the total amount of cocaine recov-

ered from the women was 765 grams. On the basis of this

incident, the jury convicted Mr. Hollins of attempted

importation.

The Government also charged Mr. Hollins with an

attempt to import cocaine based on a trip taken by Carlos

Stewart and his girlfriend (“the Stewart trip”). According

to trial testimony, Mr. Hollins had recruited Stewart

through Stewart’s cousin, had paid Stewart’s expenses

and a fee and served as Stewart’s contact while Stewart

was in Jamaica. As the women involved in the Reynolds

trip had testified, Wilson drove the couriers to the airport

and provided the cash for the buy. Mark met them at the

airport in Jamaica and took them to a hotel. He returned

several days later with cocaine stashed in cans labeled as

a Jamaican food product and drove the couple to the

airport. Stewart was apprehended upon entering the

United States and, Mr. Hollins stipulated, 1702.3 grams

of cocaine were found in the cans. The jury acquitted

Mr. Hollins of the attempt charge based on this incident.

In addition to these specifically charged incidents, the

Government also presented, in support of its general

conspiracy charge, evidence at trial of an additional trip

(“the Clemons trip”). According to trial testimony, Mr.

Hollins asked Vincent Clemons to travel to Jamaica.

Clemons paid for his own flight, but Mr. Hollins both

arranged the flight and set Clemons up in a hotel once he

arrived. Once Clemons was in the Jamaica hotel, Mr.

Hollins contacted him and asked him to do Mr. Hollins a

“favor” by bringing something back to the United States.

4 No. 06-2659

He told him that a man named “Mark” would be in touch

shortly with directions. Mark later called Clemons and

arranged a meeting. At the meeting, Mark told Clemons

that he would be smuggling liquid cocaine into the United

States in champagne bottles that he could purchase from a

certain duty-free store in the Jamaican airport. Clemons

did as instructed and was not apprehended on his entry

to the United States. He turned over the bottles to Mr.

Hollins. Aside from the trip expenses and reimbursement

of the $45 cost of the “champagne,” Clemons testified that

he received no additional compensation. The Govern-

ment produced Clemons’ customs declaration from this

trip on which he had claimed six bottles of champagne.

Based on the above evidence presented at trial, the jury

convicted Mr. Hollins of the conspiracy charge.

B. The First Sentencing Proceeding

In preparation for Mr. Hollins’ initial sentencing hear-

ing, the Government prepared its version of the offense. It

maintained that, although the evidence at trial addressed

only three particular runs to Jamaica (the Reynolds trip,

the Stewart trip and the Clemons trip), the conspiracy

actually involved at least six trips and significantly

higher amounts of cocaine than the Government had

attempted to prove at trial.

In support of its position that Mr. Hollins should be

sentenced on the basis of transactions involving roughly

twelve kilos of cocaine, the Government attached numer-

No. 06-2659 5

ous documents to its sentencing memorandum.1 These

documents included the reports of interviews with five

individuals involved in the conspiracy, plea agreements

entered by several of Mr. Hollins’ co-defendants (Clemons,

Dixon, McDonald, Reynolds and Stewart), lab reports

documenting drug quantities and testimony from related

state court proceedings. One of these documents was a

record of the statement a woman named Annette Addison

had made to United States Customs officials in September

1998. According to that record, Addison stated that,

beginning in 1992 or 1993, she went on several trips out

of the country on behalf of the Hollins-Wilson conspiracy

and eventually became a recruiter who located, for a

finder’s fee, additional couriers for Mr. Hollins and Wilson.

She testified generally on the operations of the scheme

and described it in a manner consistent with the testimony

others had provided about the mechanics of travel and

about the dealings in Jamaica. She also specifically

stated that, in 1996, she had traveled with McKinley

Williams and Angela Butler and had attempted to return

with wine bottles containing liquid cocaine (“the Addison

II trip”). She stated that Wilson had made the arrangements

and had provided Addison with $65,000 to purchase the

cocaine. On arriving at the airport back in the United

States, Williams passed through customs without incident,

but Addison and Butler were stopped and the contents

of their wine bottles discovered.

1

The Government’s initial version of the offense, not a part of

the record on appeal, apparently concluded that Mr. Hollins

was responsible for seven kilos of cocaine. In its Corrections

to the Presentence Investigation Report, it revised the drug

quantity to nearly twelve kilos on the basis of newly acquired

lab reports.

6 No. 06-2659

At her own state court trial arising out of this trip,

Addison had testified in her own defense: She contended

that she had gone to Jamaica only on vacation and did

not know that the wine bottles she carried contained liquid

cocaine. The statement introduced at Mr. Hollins’ sen-

tencing, in which she admitted her involvement and

provided the relevant details, was obtained during a

meeting with customs officials subsequent to her convic-

tion.

The Government also introduced evidence of two

additional trips. The first, apparently taken in early 1995 by

two other women whom Addison had recruited (“the

Addison I trip”), involved a smuggling method similar

to that used in the Reynolds trip. The second apparently

involved Williams, who had traveled alone on a different

occasion and returned with liquid cocaine (“the Williams

trip”).

In addition to producing this supplemental drug quantity

evidence, the Government maintained that Mr. Hollins

should receive a four-level enhancement for his role as a

leader or organizer. See U.S.S.G. § 3B1.1(a). The presentence

report adopted the Government’s version of the offense,

including the drug quantity to be attributed to Mr. Hollins,

and recommended that the district court apply the leader

or organizer enhancement.

In his response, Mr. Hollins offered no direct objections

to the drug quantity calculations. Instead, he contended

that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), the

district court could not impose a sentence based on drug

quantities other than those proven to the jury beyond

a reasonable doubt at trial. Because the jury had found

him guilty of the attempt charge on the Reynolds trip

alone, Mr. Hollins believed the 765 grams of cocaine

No. 06-2659 7

involved in that incident placed a ceiling on his drug

quantity liability at sentencing.

The district court rejected Mr. Hollins’ contentions. It

found that, based on the evidence adduced at trial and the

Government’s additions at sentencing, Mr. Hollins’

relevant conduct encompassed offenses involving in excess

of five kilograms of cocaine. The court also applied a four-

level organizer or leader enhancement under U.S.S.G.

§ 3B1.1(a), and sentenced him to 188 months’ imprison-

ment, the low end of the applicable guidelines range.

Mr. Hollins appealed his sentence to this court. He

maintained his challenge, on Apprendi grounds, that the

district court’s fact-finding and resultant imposition of a

mandatory guidelines sentence was unconstitutional.

Because Mr. Hollins had preserved this objection and

because the Government could not demonstrate success-

fully that the district court’s error was harmless, this

court vacated the sentence and remanded for re-sentenc-

ing consistent with the dictates of Booker.

C. The Second Sentencing Proceeding

On remand, the district court determined correctly that

Mr. Hollins was entitled to a complete resentencing

procedure and that all challenges remained open to him.

Mr. Hollins, therefore, disputed the evidence of drug

quantities that had formed the basis of his prior sentence

and chose, in this second proceeding, to put the Govern-

ment to its proof.

In addition to the original documentary submissions,

discussed above, and the evidence produced at trial, the

Government, at the district court’s direction, called Addi-

8 No. 06-2659

son to testify at the resentencing hearing. Although Addi-

son apparently had testified at Wilson’s sentencing in 2003

in a manner consistent with her statements in the customs

interview,2 she proved to be a difficult witness in this

proceeding. She gave contradictory and confused testi-

mony about her role in the conspiracy. She said that

she did not recall her testimony at Wilson’s sentencing

hearing, and she testified that she had never discussed

importing cocaine with Mr. Hollins. However, when the

Government walked her through her prior testimony, she

admitted that she had worked with Mr. Hollins to smuggle

cocaine and gave specific details of several trips and

described her role in recruiting and importing. On cross-

examination, she admitted to lying under oath at her own

trial. She stated again that she had not worked as a re-

cruiter for Mr. Hollins and that she was unsure whether

she had made the statements recorded in the customs

report. Near the conclusion of her muddled testimony, the

court itself pressed her about her truthfulness in this

proceeding and at Wilson’s sentencing. She testified that,

although she did not remember details of the prior pro-

ceedings, she remembered that she did not lie.

Following her testimony, the district court heard argu-

ment from the parties on the issue of drug quantity and the

leadership enhancement. The Government contended that

Mr. Hollins was responsible for between 5 and 15 kilo-

grams of cocaine. Its calculation was based on: (1) a

2

The transcript of Wilson’s sentencing hearing is not a part of

the record on appeal in this case. However, the Government

examined Addison at length regarding her testimony in that

proceeding when she appeared at Mr. Hollins’ sentencing

hearing.

No. 06-2659 9

stipulated amount of 765 grams from the Reynolds trip, of

which Mr. Hollins was convicted; (2) a stipulated amount

of 1702 grams from the Stewart trip, of which Mr. Hollins

was acquitted; (3) 4161 grams from the Addison II trip,

based on the forensic amounts of 1387 grams from the

bottles of Addison and Butler and attributing an identical

amount to Williams who passed through customs unde-

tected; (4) 510 grams from the Addison I trip, the quantity

having been determined by the average quantity of the

pouches used in the three-person Reynolds trip; and

(5) 4161 grams of liquid cocaine from the champagne

bottles smuggled during the Clemons trip, based on the

forensic evidence of quantity from the Addison II trip,

which had used wine bottles.3 Mr. Hollins objected to the

Government’s calculation, basing his arguments again

on his interpretation of the Supreme Court’s holding in

Booker and the constitutionality of sentencing a defendant

based on facts not proven to the jury. He also contended

that the evidence was simply insufficient to hold him

criminally responsible for certain of the amounts.

The district court ruled that it would consider the 765

grams from the Reynolds trip, 2964 grams from the por-

tions of the Addison II trip that were substantiated by

forensic evidence and an identical amount from the

Clemons trip. The court specifically ruled that it would

not consider the quantities attributed to the acquitted

conduct of the Stewart trip, the liquid cocaine that Williams

3

For reasons undisclosed by the record, during oral argument

at the second sentencing proceeding, the Government did not

ask the court to attribute any drug quantity to Mr. Hollins

from the Williams trip, although in the prior proceeding it

had contended that the Williams trip involved 693 grams.

10 No. 06-2659

had passed through customs without detection on the

Addison II trip or any of the amounts the Government

claimed from the Addison I trip. See R.365-4 at 106-07. The

court therefore found that Mr. Hollins was responsible for

approximately six and a half kilos of cocaine, resulting

in a base offense level of 32.

The parties also argued about Mr. Hollins’ role in the

offense enhancement. The Government maintained its

position that the evidence showed a wide-ranging conspir-

acy with Mr. Hollins and Wilson at the helm, sufficient

to support a four-level leadership enhancement. Mr.

Hollins contended that his role was substantially

smaller than Wilson’s and that, because Wilson had

received only a three-level enhancement, Mr. Hollins’

enhancement, if any, certainly should be less than three

levels. The district court concluded that, “in fairness,” Mr.

Hollins enhancement should be reduced to match Wilson’s.

R.365-4 at 111. With a total offense level thus determined

to be 35 and a criminal history category of I, the result-

ing guidelines range was 168 to 210 months. The Gov-

ernment advocated a low-end sentence of 168 months. The

court considered the seriousness of the offense and the

harm done to the lives of the couriers, many of whom

were young women with children. The court, noting that

Wilson had received 151 months after pleading guilty,

expressed its desire to avoid unwarranted sentencing

disparities between the co-defendants. See 18 U.S.C.

§ 3553(a)(6). Accordingly, it imposed a below-guidelines

sentence of 151 months’ imprisonment for Mr. Hollins as

well.

Mr. Hollins once again timely appeals his sentence.

No. 06-2659 11

II

DISCUSSION

Mr. Hollins raises both factual and legal challenges to his

sentence. He contends that the district court’s drug quan-

tity and leadership role findings were clearly erroneous.

He also poses a variety of constitutional challenges to a

sentence based in significant part on matters not presented

to the jury.

Post-Booker, we generally review a sentence for reason-

ableness in light of the statutory sentencing factors in

18 U.S.C. § 3553(a). United States v. Acosta, 474 F.3d 999,

1001 (7th Cir. 2007). However, we review de novo legal

questions, including the correct application of the advisory

guidelines, United States v. Ngatia, 477 F.3d 496, 501 (7th

Cir. 2007), and due process challenges to sentencing, United

States v. Farris, 448 F.3d 965, 967-68 (7th Cir. 2006), cert.

denied, 75 U.S.L.W. 3707 (U.S. June 29, 2007) (No. 06-7363).

We review findings of fact made by the district court,

including the drug quantity and leadership role, for

clear error. Ngatia, 477 F.3d at 500; United States v. Melendez,

467 F.3d 606, 608-09 (7th Cir. 2006), cert. denied, 75 U.S.L.W.

3708 (U.S. June 29, 2007) (No. 06-11174); United States v.

Olson, 450 F.3d 655, 685 (7th Cir. 2006). Clear error will be

found when, on review of the entire evidence, we are left

with the definite and firm conviction that a mistake has

been made. United States v. Hankton, 432 F.3d 779, 789 (7th

Cir. 2005). These standards apply to all of Mr. Hollins’

challenges on appeal; beyond the legal and factual errors

he claims guided the district court’s calculation, he does

not contend that his sentence was otherwise unreasonable.

12 No. 06-2659

A. Drug Quantities

In cases involving drug conspiracies, a sentencing

court must consider as relevant conduct all “types and

quantities of drugs that were part of the same course of

conduct or common scheme or plan,” whether or not the

defendant was “charged with or convicted of” these other

acts. United States v. McEntire, 153 F.3d 424, 435 (7th Cir.

1998) (internal quotation marks and citations omitted); see

also U.S.S.G. § 3B1.1(a)(1). We have recognized that, in

light of the lower burden of proof demanded of the Gov-

ernment at sentencing, combined with the fact that the

Federal Rules of Evidence do not apply in sentencing

proceedings, the aggregation rule gives the Government

“tremendous leverage in drug cases.” McEntire, 153 F.3d at

435. A defendant in a drug conspiracy is liable for all

quantities of drugs with which he was involved directly

and any amounts attributable to his co-conspirators if

those amounts were reasonably foreseeable to him. United

States v. Wilson, 481 F.3d 475, 483 (7th Cir. 2007); Olson,

450 F.3d at 685; United States v. McLee, 436 F.3d 751, 765

(7th Cir. 2006); see also U.S.S.G. § 1B1.3(a)(1) (providing

that, “in the case of jointly undertaken criminal activity . . .

whether or not charged as a conspiracy” a defendant’s

base offense level should be calculated on the basis of “all

reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity” in

addition to those acts in which he was directly involved).

1. The Addison II Trip

Mr. Hollins claims that the district court erred in holding

him criminally responsible for the amounts involved in

the Addison II trip. The district court counted only those

No. 06-2659 13

drug quantities attributed to Addison and Butler from this

trip, both of whom were caught and whose bottles were

tested. The only question, therefore, is whether these

amounts were part of the scheme and were reasonably

foreseeable to Mr. Hollins.

Mr. Hollins submits that the court held him responsible

without making the requisite finding that the cocaine

involved in the Addison II trip was reasonably foresee-

able to him. However, it is plain from the record that the

framework of the entire drug quantity inquiry before the

court was foreseeability, and, therefore, the court’s ultimate

conclusion that Mr. Hollins should be charged with the

amounts involved in the Addison II trip encompassed a

determination that these quantities were foreseeable. See

R.365-4 at 94 (stating that the parties should address “the

question [of] what was foreseeable to [Mr. Hollins] by a

preponderance of the evidence, what quantity of cocaine

was foreseeable to him which relates to the conspiracy”).

Mr. Hollins further claims that, other than certain of

Addison’s contradictory statements, the evidence does

not support a finding that Mr. Hollins had any involve-

ment in this particular transaction. Even if this were the

case, Mr. Hollins still could be liable for this amount. The

Government’s burden in attributing drug quantities to a

particular defendant does not require that it show that

the defendant is involved in or even have direct knowledge

of a particular transaction; “[r]easonable foreseeability

refers to the scope of the agreement that [a defendant]

entered into when he joined the conspiracy, not merely to

the drugs he may have known about.” United States v.

Flores, 5 F.3d 1070, 1083 (7th Cir. 1993). This question about

the scope of Mr. Hollins’ agreement is precisely the ques-

tion that the district court answered when it stated, “[t]he

14 No. 06-2659

evidence is clear that Mr. Wilson and Mr. Hollins ran this

thing . . . . The jury found that [Mr. Hollins] conspired

with Mr. Wilson.” R.365-4 at 103. Having credited Addi-

son’s statements and testimony to the extent that they

establish “that she did have a relationship with Mr. Hollins

and also with this drug conspiracy,” id. at 106, the district

court noted that “there is certainly enough evidence” to

conclude that the amounts brought in by Addison were

“part of this conspiracy,” id. at 103. These comments

indicate that the court was convinced of Mr. Hollins’

central role in the conspiracy and of his continuing knowl-

edge of Addison’s role in it when the court concluded

that Mr. Hollins reasonably foresaw the drug quantities

on the Addison II trip. In short, these facts were relevant

considerations in assessing the scope of Mr. Hollins’

agreement and, therefore, the quantities of cocaine rea-

sonably foreseeable to him in the ongoing conspiracy.

We also conclude that the district court did not err in

crediting certain portions of Addison’s testimony and

discrediting certain others without an explicit statement of

reasons made on the record. Mr. Hollins relies on United

States v. Beler, 20 F.3d 1428 (7th Cir. 1994), in support of his

argument that the district court was required to provide

such an explanation. In Beler, we overturned a sentence

in which the primary evidence of drug quantity was a

statement by a witness that was at odds with the witness’

own earlier quantity estimate. Id. at 1433-35. We faulted

the district court for its conclusory determination relying

on the witness’ higher estimate without any reference to

the fact that the witness also had stated that the transac-

tion at issue involved a significantly lower amount. Beler

is inapposite on its facts. Unlike the court in Beler, the

district court here did not rely on one of two directly

No. 06-2659 15

contrary factual statements. It sifted through the testimony

of a difficult witness and distilled the barest of facts

relating to her involvement in the conspiracy. This kind of

evidence sifting is certainly not beyond the competence or

authority of a sentencing court. It is at the heart of the

district court’s function, and we shall not second guess

the determinations made by a judicial officer who has

observed the testimony and made careful judgments

about the witness’ veracity.

2. The Clemons Trip

With regard to the Clemons trip, Mr. Hollins contends

simply that there was insufficient evidence for the district

court to conclude that the bottles carried liquid cocaine or

that they carried the amount attributed to Mr. Hollins at

sentencing (more than 2900 grams).

It is true that the testimony at trial was that the Clemons

trip had certain logistical differences from some of the

other trips made in furtherance of the conspiracy: Clemons

paid his own transportation and apparently did not know

before arriving in Jamaica the purpose of his trip. Clemons

also did not pay Mark, the Jamaican contact, money sent by

Mr. Hollins or Wilson in exchange for cocaine as some

other witnesses testified they had. Mr. Hollins claims that

these differences demonstrate that the Clemons trip was

only a test run for future use of wine bottles that actually

would contain liquid cocaine. In this case, he argues, the

bottles were filled only with champagne.

Mr. Hollins’ characterization may be a plausible account

of the Clemons trip, but it is not one required by the record.

At trial, Clemons testified that Mark informed him that

the bottles did contain cocaine and that Clemons pur-

16 No. 06-2659

chased, carried and handed over the bottles to Mr. Hollins

believing they contained cocaine. In addition to Clemons’

testimony, the district court also had evidence that other

individuals caught doing substantially the same thing

(albeit with different particulars) were indeed found to have

been carrying liquid cocaine. That Mr. Hollins presents

an alternative view of the evidence does not demonstrate

that the district court’s finding was clear error. See United

States v. Marty, 450 F.3d 687, 690-91 (7th Cir. 2006). “Where

there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly er-

roneous.” Anderson v. City of Bessemer, 470 U.S. 564, 574

(1985).

As to the quantity of cocaine the Clemons bottles con-

tained, although evidence of drug quantity must be more

than speculative, “nebulous eyeballing,” the sentencing

guidelines permit some amount of reasoned “speculation

and reasonable estimation” by a sentencing court. United

States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998) (citing

U.S.S.G. § 2D1.1); see U.S.S.G. § 2D1.1, Application Note 12

(“Where there is no drug seizure or the amount seized

does not reflect the scale of the offense, the court shall

approximate the quantity of the controlled substance. In

making this determination, the court may consider, for

example, . . . similar transactions in controlled substances

by the defendant . . . .”); Beler, 20 F.3d at 1433 (noting

the necessity of approximation).

In this case, the district court relied on the drug quanti-

ties it had attributed to Mr. Hollins from the Addison II

trip. This was not baseless speculation or a number drawn

“out of thin air,” Jarrett, 133 F.3d at 530; neither was it

based on an impermissible conclusion that the quantity of

drugs known to have been used in a particular run was

No. 06-2659 17

standard for all runs, cf. United States v. Johnson, 185 F.3d

765, 768-69 (7th Cir. 1999) (discussing the problems with

applying an average-quantity approach). Instead, the

district court looked to the Addison II trip, which was the

most closely analogous trip, in which the same specific

smuggling method had been used. The court concluded

that a per-bottle quantity of liquid cocaine was likely

consistent and should be applied to the Clemons bottles as

well as to the Addison II bottles. The determination that a

per-bottle amount was standard was not baseless, as

each of the wine bottles tested in the Addison II trip

contained the same amount of liquid cocaine. Moreover,

the court’s estimate on the Clemons trip was generous to

Mr. Hollins based on the facts of the two trips: Although

the court believed the wine bottles used in the Addison II

trip and the champagne bottles used in the Clemons trip

carried the same volume of liquid cocaine, Clemons

testified that he carried six bottles rather than the four

bottles on which the Addison II trip quantity ultimately

was calculated. The court nevertheless attributed an

identical total amount of cocaine—based on the four bottle

quantity from the Addison II trip—rather than using a per-

bottle estimate based on six bottles in the Clemons trip.

This method of calculation is the kind of reasonable

approximation that a district court is directed to under-

take under the guidelines.

B. The Role in the Offense Enhancement

Mr. Hollins also claims that the district court erred in

applying an enhancement for acting as a manager or

supervisor under U.S.S.G. § 3B1.1(b). At his initial hearing,

Mr. Hollins was given a four-point enhancement as a

leader or organizer under § 3B1.1(a). The district court

18 No. 06-2659

reduced the number at resentencing to create parity

with Wilson. Mr. Hollins now objects that the factual

finding that he was a manager is clearly erroneous.

In determining whether a role in the offense enhance-

ment is appropriate, sentencing courts should examine the

relationship of the defendant to the criminal enterprise.

Relevant factors in this inquiry include: “(1) exercise of

decision-making authority; (2) participation in committing

the offense; (3) recruitment of accomplices; (4) degree of

participation in planning or organizing the criminal

activity; (5) degree of control or authority exercised over

others involved in the criminal activity; and (6) the nature

and scope of the illegal activity.” United States v. Falcon,

347 F.3d 1000, 1004 (7th Cir. 2003); see also § 3B1.1, cmt. 4.

The district court made findings on the record that

Mr. Hollins, along with Wilson, clearly ran the con-

spiracy, and the record identified far more than five

people involved in the importation of cocaine for Mr.

Hollins and Wilson. The court also found that Mr. Hollins

was responsible for recruiting multiple couriers and

arranging details of their runs. While the couriers came and

went, Mr. Hollins remained in a role facilitating numerous

trips to import substantial amounts of cocaine. Mr. Hollins’

main objection was that he was less responsible, and,

therefore, less accountable, than Wilson. Even if that

contention is supported by the record, it does not under-

mine the facts found by the trial court that Mr. Hollins

exercised a management role.4 We have stated that the

4

The Application Notes themselves make clear that more than

one individual simultaneously may wield sufficient authority

in a criminal enterprise to qualify for a particular role in the

(continued...)

No. 06-2659 19

district court must make factual findings on the record

that at least five members were in the conspiracy and

determine whether he had control over four of them. See

United States v. Zaragoza, 123 F.3d 472, 482 (7th Cir. 1997).5

We have further stated, however, that failure to make

such findings does not require remand “so long as the

enhancement is adequately supported by the record.” Id.

at 483. The record in this case adequately supports the

enhancement given.

C. Constitutional Claims

Finally, Mr. Hollins presents a variety of constitutional

challenges to his sentencing, all of which we previously

have considered and rejected. Judicial fact-finding by a

preponderance of the evidence is still a legitimate basis for

arriving at the applicable guidelines range and does not

violate the Constitution so long as the guidelines are

advisory and the ultimate sentencing decision is based on

4

(...continued)

offense enhancement. U.S.S.G. § 3B1.1, Application Note 4

(“There can, of course, be more than one person who qualifies

as a leader or organizer of a criminal association or conspir-

acy.”).

5

In light of changes to the Application Notes accompanying

§ 3B1.1, we have retreated from the language in United States

v. Zaragoza, 123 F.3d 472, 482 (7th Cir. 1997), which stated that

the defendant must have exercised control over at least four

participants in order to qualify for a role in the offense en-

hancement. United States v. Blaylock, 413 F.3d 616, 620-21 (7th Cir.

2005); see also U.S.S.G. § 3B1.1, cmt.2 (“To qualify for an adjust-

ment under this section, the defendant must have been the

organizer, leader, manager, or supervisor of one or more other

participants.” (emphasis added)).

20 No. 06-2659

the § 3553(a) factors. See, e.g., United States v. Hale, 448 F.3d

971, 988 (7th Cir. 2006), cert. denied, 75 U.S.L.W. 3354 (U.S.

Jan. 8, 2007) (No. 06-8091), (“[N]o constitutional violation

resulted from the application of upward adjustments based

on facts found by the district court by a preponderance

of the evidence. Judges may continue to make findings

based on a preponderance of the evidence, provided that

they do not treat the Sentencing Guidelines as ‘laws’ with

binding effect.” (internal citation and quotation marks

omitted)).

Mr. Hollins further contends that, under the Booker

remedial regime, any sentencing exposure above that

which could be imposed on the basis of jury-found facts

violates ex post facto principles, and, therefore, due

process. We previously have rejected this argument, and

we confirm that result in this case. See, e.g., Farris, 448

F.3d at 968 (noting that a defendant cannot demand, on

the basis of due process, “a sentence that comports with

the Sixth Amendment requirements of Booker, but . . .

avoid[] the possibility of a higher sentence under the

remedial holding of Booker” (internal quotation marks

and citation omitted)); United States v. Jamison, 416 F.3d

538, 539 (7th Cir. 2005) (same).

Conclusion

The district court’s findings as to drug quantity and

leadership role were not clearly erroneous. Mr. Hollins’

sentence was calculated properly. We also reject the

challenges Mr. Hollins poses to the remedial holding of

Booker. Accordingly, the judgment of the district court

imposing a sentence of 151 months’ imprisonment is

affirmed.

AFFIRMED

No. 06-2659 21

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-17-07