Tenth Circuit Reverses Drug Conviction Based on Miscalculation

The Tenth Circuit recently reversed in United States v. Dahda. Dahda was convicted on a drug conspiracy for over 1,000 kilograms or more of marijuana. On appeal, Dahda alleged seven grounds for relief, including that the district court erred in applying Dahda’s base offense level by miscalculating the amount of marijuana attributed to Dahda.

While the rest of the grounds were rejected on appeal, the Tenth Circuit reversed on Dahda’s claim that the district court miscalculated the base offense level. The court indicated that “the government bears the burden to prove drug quantity through a preponderance of the evidence and the base-offense level may consist of an estimate if it contains some record support and is based on information bearing a ‘minimum indicia of reliability.’”

However, the Tenth Circuit found the information used to sustain Dahda’s offense level was not reliable. The appellate court found that the quantities of marijuana found in pallets varied. The government’s witnesses indicated that each pallet had between five to ten to eighty pounds of marijuana. Toward the end of the conspiracy, each pallet usually contained 80 pounds, but there “could have been” times when the pallets contained more than 80 pounds. There was also no indication of the time periods that the government’s witnesses were referencing when discussing the pallets that contained 80 pounds. The court found that there was no way to tie the testimony of the government’s witnesses to the shipments that were attributed to Dahda and as such, it was insufficient. The court also rejected the government’s harmless error analysis.

The Tenth Circuit reversed, United States v. Dahda, No. 15-3237

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