In U.S. v. Almedina the defendant was arrested after receiving a package containing 458 grams of heroin that was delivered to him by ICE agents in a controlled delivery. The package had been imported to Miami from Colombia. Almedina cooperated with agents in his federal criminal case and explained that he was promised $1,000 from a Salgado to pick up the package and deliver it to Salgado. He also told the agents that he accepted a package from Colombia the month before for Salgado and was paid about the same. Salgado was arrested on federal criminal drug charges. He admitted being paid to accept the package and for some people from South America. He confirmed receipt of a package the month before and was paid a little less. At Almedina’s sentencing, the PSI included the earlier package, and the government estimated the earlier package weighed about the same as the seized package based on the amount both persons were paid. The sentencing court accepted the approximate quantity of the previous delivery and combined with the seized quantity put Almedina at an offense level 30, which applied to 700 to 999 grams of heroin.
Almedina argued on appeal that the district court improperly speculated the quantity. He argued it was speculation to presume the first package contained heroin just because the second contained heroin. It is plausible, he argued, that the first package contained no contraband and was just a dry run. Almedina reasoned that it is unlikely that drug dealers would send that amount of contraband to an unknown person without first determining that person was reliable. And even if the first contained contraband there is no evidence as to the type or amount. The government’s argued the district court was correct because it is unlikely the drug importers would have paid them for an empty package.
The district court’s estimate that the first package contained at least at least 215 grams of heroin was fair and reasonable. The 11th Circuit cited a long standing principle that when a fact pattern gives rise to two reasonable and different constructions, the fact finder’s choice between them cannot be clearly erroneous. Further, it cited the principle that in approximating the quantity of drugs, the district court may rely on evidence showing the average frequency and amount of a defendant’s drug sale over a given period of time. That determination must be based on fair accurate and conservative estimates of the quantity of drugs attributable to the defendant, and cannot be based on merely speculative calculations.
Here the 11th Circuit held that while the fact pattern gave rise to two reasonable and different constructions, the district court’s choice between them could not be clearly erroneous. The Court analogized this case to U.S. v. Curry where the district court drug quantity estimate was upheld based on the seizure of one of four packages sent to the defendant, where all the packages were sent from the same source, labeled similarly and weighed about the same. As for the type of drug in the first package, the 11th Circuit reaffirmed the principle that a defendant need no know the type of drug involved to receive a base offense level for that type of drug.