throbber
United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued May 3, 2016
`
`
`Decided July 8, 2016
`
`No. 13-3075
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`GERRY DUANE BURNETT,
`APPELLANT
`
`
`
`Consolidated with 13-3076, 13-3078
`
`
`
`Appeals from the United States District Court
`for the District of Columbia
`(No. 1:12-cr-00042-3)
`(No. 1:12-cr-00042-1)
`(No. 1:12-cr-00042-4)
`
`
`
`Howard B. Katzoff, appointed by the court, argued the
`cause for appellant Jesse McLester Young, Jr. Vincent
`Jankoski, appointed by the court, argued the cause for
`appellant Thaxton Young, Jr. Mary E. Davis, appointed by
`the court, argued the cause for appellant Gerry Duane Burnett.
`With them on the briefs was Christopher M. Davis.
`
`
`Finnuala K. Tessier, Attorney, U.S. Department of
`Justice, argued the cause for appellee. With her on the brief
`
`
`
`

`
`2
`
`was Elizabeth Trosman, Assistant U.S. Attorney. Elizabeth
`H. Danello, Assistant U.S. Attorney, entered an appearance.
`
`
`Before: KAVANAUGH, SRINIVASAN, and PILLARD, Circuit
`Judges.
`
`
`for
`Opinion
`KAVANAUGH.
`
`
`the Court
`
`filed by Circuit Judge
`
`KAVANAUGH, Circuit Judge:
` Eugene McDuffie,
`Thaxton Young, Jesse Young, and Gerry Burnett conspired to
`distribute heroin in Washington, D.C. (Thaxton Young and
`Jesse Young are cousins. For ease of reading, we will refer
`to the two Youngs by their first names.) Beginning about
`May 2011 and continuing through January 2012, McDuffie
`and Thaxton made frequent trips from Washington, D.C., to
`New York City and other locations along the I-95 corridor.
`They took those trips to obtain significant quantities of heroin
`from Thaxton’s cousin, Jesse, who lived in New York.
`McDuffie and Burnett would then resell the heroin in the
`Washington, D.C., area.
`
`The Government obtained a federal grand jury indictment
`against Thaxton, Jesse, and Burnett. (McDuffie separately
`pled guilty and ultimately
`testified against
`the
`three
`defendants in this case.) The indictment against the three
`defendants charged them with one count of conspiracy to
`distribute and possess with intent to distribute a kilogram or
`more of heroin in violation of 21 U.S.C. §§ 846 and 841.
`The indictment also charged Burnett alone with one count of
`possession with intent to distribute heroin and one count of
`possession with intent to distribute marijuana.
`
`Following a three-week jury trial, Thaxton, Jesse, and
`Burnett were convicted of one count of a lesser-included
`
`
`
`

`
`3
`
`conspiracy offense: conspiracy to distribute and possess with
`intent to distribute 100 grams or more of heroin. A jury also
`found Burnett guilty of the heroin possession and marijuana
`possession counts.
`
`The court sentenced Thaxton, Jesse, and Burnett to terms
`of imprisonment as follows: 11 years and three months for
`Thaxton; 11 years and three months for Jesse; and 12 years
`and seven months for Burnett.
`
`On appeal, Thaxton, Jesse, and Burnett challenge their
`convictions on a variety of grounds. Jesse and Burnett also
`contest the District Court’s calculation of their sentences.
`We affirm the judgments of conviction and sentence in all
`respects, except that we vacate Burnett’s sentence and remand
`for the District Court to resentence Burnett.
`
`
`I
`
`We begin with a brief factual background of this case.
`Because we are reviewing a guilty verdict, we recount the
`evidence in the light most favorable to the Government.
`
` McDuffie and Thaxton lived in the Washington, D.C.,
`area. In the spring of 2011, McDuffie and Thaxton agreed to
`sell heroin. They planned to purchase the heroin from
`Thaxton’s cousin, Jesse, who lived in New York City.
`Beginning in May 2011, McDuffie and Thaxton took the first
`of several trips to New York City to obtain heroin from Jesse.
`
`
`In August 2011, the Government began investigating
`McDuffie, Thaxton, Jesse, and Burnett, after a confidential
`source notified the Government that McDuffie was trafficking
`in drugs.
` Shortly after opening its investigation, the
`Government obtained warrants to track McDuffie’s car and
`
`
`
`

`
`4
`
`cell phone, as well as Thaxton’s car. GPS data, which was
`later corroborated by eyewitness testimony, phone records,
`text messages, and rental car records, revealed a pattern:
`About once a month, McDuffie, Thaxton, or both, would
`travel – often by rental car – from Washington, D.C., to New
`York City or some other location along the I-95 corridor.
`There, they would meet briefly with Thaxton’s cousin Jesse to
`obtain heroin. McDuffie and Thaxton would then bring the
`heroin back to Washington, D.C., where McDuffie would sell
`it. McDuffie sold some of the heroin to Burnett, who in turn
`would re-sell some of it.
`
`Within a few days of such trips in October, November,
`and December, 2011, McDuffie told a confidential informant
`for the Government that he was able to sell heroin.
`McDuffie made three controlled sales to the informant.
`Recordings
`from
`those controlled sales
`revealed
`that
`McDuffie had been storing heroin at Burnett’s home in
`Washington. Phone records and GPS data also revealed that
`following the controlled sales, McDuffie arranged to meet
`Thaxton in order to share the proceeds.
`
`On January 18, 2012, McDuffie spoke to the confidential
`informant to arrange another sale of heroin. On January 20,
`Thaxton rented a car. On the following day, January 21,
`McDuffie and Thaxton drove the rental car to Philadelphia to
`meet Jesse. Federal agents personally observed McDuffie
`and Thaxton in Philadelphia. The agents saw the two men
`spend only a short time in Philadelphia before returning to
`their rental car and heading back down I-95
`toward
`Washington. Concluding that McDuffie and Thaxton had
`likely obtained drugs from Jesse and that the rental car they
`were driving would contain those drugs, the federal agents
`asked the Maryland State Police to stop and search the rental
`car. Maryland State Police did so, and during the search
`
`
`
`

`
`5
`
`they found about 62 grams of heroin in the car. The
`Maryland State Police arrested McDuffie and Thaxton.
`
`
`Shortly thereafter, the Federal Government obtained
`search warrants to search the homes of Thaxton and Burnett.
`At Thaxton’s home, agents recovered two digital scales and
`more than $1,000 in cash. At Burnett’s home, agents
`recovered heroin, marijuana, drug paraphernalia, and more
`than $6,000 in cash.
`
`The Government obtained a three-count federal grand
`jury indictment against Thaxton, Jesse, and Burnett. 1 All
`three defendants were charged with one count of conspiring to
`distribute and possess with intent to distribute a kilogram or
`more of heroin in violation of 21 U.S.C. §§ 846 and 841. In
`light of the heroin and marijuana found at his home, the
`indictment also charged Burnett alone with one count of
`possession with intent to distribute heroin and one count of
`possession with intent to distribute marijuana.
`
` A
`
`the
`three defendants guilty of
`jury found all
`
`lesser-included offense of conspiracy to distribute and possess
`with intent to distribute 100 grams or more of heroin in
`violation of 21 U.S.C. §§ 846 and 841. The jury also
`convicted Burnett of the separate heroin and marijuana
`possession counts. The District Court then sentenced the
`defendants to the following terms of imprisonment: 11 years
`and three months for Thaxton; 11 years and three months for
`Jesse; and 12 years and seven months for Burnett.
`
`1 McDuffie had been named in an earlier indictment charging
`all four men. However, in light of a plea agreement he reached
`with the Government on April 4, 2012, McDuffie was not included
`in the April 17, 2012, indictment. McDuffie later became a
`cooperating witness
`in
`the Government’s case against
`the
`defendants.
`
`
`
`

`
`6
`
`
`The defendants have appealed on a variety of grounds.
`
`
`
`II
`
`Thaxton raises a Fourth Amendment challenge to the
`officers’ stop and search of his rental car on I-95 on January
`21, 2012, as McDuffie and Thaxton returned from their
`Philadelphia meeting with Jesse. Thaxton argues that the
`officers lacked probable cause to stop and search the car. He
`claims that evidence recovered during the search therefore
`should have been excluded from his trial. The District Court
`denied his motion to suppress. Our review is de novo.
`United States v. Holmes, 505 F.3d 1288, 1292 (D.C. Cir.
`2007).
`
`
`The Fourth Amendment provides that the “right of the
`people to be secure in their persons, houses, papers, and
`effects, against unreasonable searches and seizures, shall not
`be violated, and no Warrants shall issue, but upon probable
`cause, supported by Oath or affirmation, and particularly
`describing the place to be searched, and the persons or things
`to be seized.” U.S. CONST. amend. IV.
`
`Under Supreme Court precedent, when “a car is readily
`mobile and probable cause exists to believe it contains
`contraband,” the Fourth Amendment permits police to stop
`the car and search it without a warrant. Pennsylvania v.
`Labron, 518 U.S. 938, 940 (1996) (per curiam).
`
`Probable cause is an objective standard “to be met by
`applying a totality-of-the-circumstances analysis.” United
`States v. Vinton, 594 F.3d 14, 21 (D.C. Cir. 2010); see also
`Illinois v. Gates, 462 U.S. 213, 230-32 (1983). Probable
`cause is more than bare suspicion but is less than beyond a
`
`
`
`

`
`7
`
`reasonable doubt and, indeed, is less than a preponderance of
`the evidence. See Florida v. Harris, 133 S. Ct. 1050, 1055
`(2013) (“Finely tuned standards such as proof beyond a
`reasonable doubt or by a preponderance of the evidence have
`no place in the [probable-cause] decision. All we have
`required is the kind of ‘fair probability’ on which ‘reasonable
`and prudent [people,] not legal technicians, act.’”) (internal
`citation, alteration, and quotation marks omitted); see also
`United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013)
`(Probable cause “does not require certainty, or proof beyond a
`reasonable doubt, or proof by a preponderance of the
`evidence.”); Illinois v. Gates, 462 U.S. at 231-32 (describing
`probable cause as a “fluid concept” that turns on “factual and
`practical considerations of everyday life on which reasonable
`and prudent” people, “not legal technicians, act”); Brinegar v.
`United States, 338 U.S. 160, 175 (1949) (Probable cause is
`“less than evidence which would justify . . . conviction” but
`“more than bare suspicion.”).
`
`the “collective
`Probable cause may be based on
`knowledge of the police.” United States v. Hawkins, 595
`F.2d 751, 752 n.2 (D.C. Cir. 1978). Therefore, on this issue,
`we will refer to the federal agents and the Maryland State
`Police collectively as the “officers.”
`
`Here, the officers had probable cause to believe that
`McDuffie’s and Thaxton’s rental car contained drugs. The
`probable cause was based in part on the pattern that the
`officers had observed for several months: At the end of
`October, November, and December 2011, GPS data from
`McDuffie’s car, phone, or both revealed that McDuffie had
`traveled to Thaxton’s home in Columbia, Maryland. GPS
`data available for two of the trips showed that while
`McDuffie’s car remained at Thaxton’s home, his cell phone
`would travel up I-95 either to Jesse’s house in the Bronx, New
`
`
`
`

`
`8
`
`York, or to a pizza restaurant nearby. After spending only a
`short time in the locale in question, McDuffie’s cell phone
`traveled back down I-95 to Thaxton’s house. Shortly after
`each of these monthly trips, McDuffie arranged to sell heroin
`to the confidential informant.
`
`On January 21, 2012, about a month after the December
`trip up I-95, GPS data showed McDuffie’s car again travelling
`to Thaxton’s home in Maryland. McDuffie’s car remained
`there while his cellphone was traced traveling up I-95 to
`Philadelphia.
` Meanwhile,
`in Philadelphia, officers
`personally surveilled McDuffie and Thaxton. They observed
`the two men spend only a short time there before the two men
`departed southbound on I-95.
`
`Based on McDuffie’s and Thaxton’s prior pattern of
`activity and the officers’ direct observations of McDuffie and
`Thaxton on January 21 in Philadelphia, the officers had
`probable cause that the rental car would contain the illegal
`drugs that McDuffie and Thaxton had just acquired in
`Philadelphia. After all, common sense suggested that this
`was yet another drug purchasing trip.
`
`
`Thaxton’s only real response is that there was no
`probable cause to believe the rental car would contain drugs
`because the trip to Philadelphia was not consistent with the
`alleged pattern of prior drug purchasing trips. In advancing
`this argument, Thaxton relies on the fact that he and
`McDuffie traveled not to New York City, but rather to
`Philadelphia. We agree with the Government, however, that
`a pattern of activity need not be identical in order to support
`probable cause. Apart from the different pick-up location
`for the heroin, Thaxton’s and McDuffie’s trip was identical in
`all other relevant respects to the three previous trips up I-95
`that were heroin pick-up trips.
`
`
`
`

`
`9
`
`
`
`In short, the officers had probable cause to believe that
`Thaxton’s rental car would contain illegal drugs. As a result,
`the stop and search of the car was valid under the Fourth
`Amendment.
`
`
`
`
`III
`
`All three defendants next raise an argument about the
`Maryland State Police’s inadvertent destruction of the heroin
`found in Thaxton’s car.
`
`When searching Thaxton’s rental car on January 21,
`2012, the Maryland State Police recovered about 62 grams of
`heroin. Soon thereafter, the State of Maryland charged
`McDuffie and Thaxton with drug-related offenses. In March
`2012, however, the State dismissed those charges after
`learning of the Federal Government’s intent to rely on that
`seized heroin in its long-running investigation of this drug
`trafficking operation.
`
`The heroin seized from Thaxton’s rental car was stored at
`a Maryland State Police facility. The drugs remained there
`even after the state charges against McDuffie and Thaxton
`were dismissed. Owing to space constraints at the facility,
`the Maryland State Police protocol was to destroy evidence
`after it was no longer needed in a particular case. Sometime
`after March 2012, a routine check of Thaxton’s and
`McDuffie’s case status revealed that the State had dropped the
`drug-related charges against them. However, the state case
`management system mistakenly failed to flag that a federal
`case against them continued. In October 2012, thinking that
`there was no reason to preserve the heroin, Maryland
`personnel ordered its destruction.
`
`
`
`
`

`
`10
`
`Because the heroin from the rental car had been
`destroyed, the Federal Government moved to admit secondary
`evidence of that heroin. The Government proposed to
`introduce testimony, lab reports, photographs, and video
`related to the heroin seized from the rental car. The District
`Court granted the Government’s motion. The defendants
`claim that the admission of secondary evidence in place of the
`drugs themselves violated their due process rights. We
`disagree.
`
`
`To make out a claim that the destruction of evidence
`violated the Due Process Clause, “the defendant bears the
`burden of proving that the government failed in bad faith to
`preserve material and potentially exculpatory evidence.”
`United States v. McKie, 951 F.2d 399, 403 (D.C. Cir. 1991)
`(citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
`
`In analyzing this claim, the District Court concluded that
`the “Maryland State Police destroyed the heroin after a
`routine check . . . revealed that the State of Maryland charges
`had been dismissed, and . . . the government contends this
`was an inadvertent mistake made in good faith and the
`defendants have not shown otherwise.” Tr. of Motion in
`Limine Hearing (Mar. 22, 2013), Joint Appendix at 615. We
`review the District Court’s determination of good faith for
`clear error. Defendants have pointed to nothing in the record
`that undermines the District Court’s finding. We “certainly
`cannot say that the district court’s decision regarding the
`quintessentially factual question of
`intent was clearly
`erroneous.” McKie, 951 F.2d at 403.
`
`In this Court, the defendants also raise a new argument.
`They claim that the District Court focused on the wrong
`government entity in assessing bad faith. Specifically, they
`argue that the lack of federal policies to ensure preservation
`
`
`
`

`
`11
`
`of the drugs by the state agency was evidence of the Federal
`Government’s bad faith. The defendants cite no precedent to
`suggest that the Federal Government may not rely on a state
`agency, or vice versa, to store contraband relevant to ongoing
`criminal investigations.
` We need not delve into the
`subsidiary question of when a “storing government’s” bad
`faith may be attributed to the “prosecuting government” in
`such circumstances.
` Suffice
`it here
`to say
`that
`the
`defendants did not present sufficient evidence of bad faith by
`either the Federal Government or the Maryland State Police in
`connection with the Maryland State Police’s inadvertent
`destruction of the drugs.
`
`Not only have the defendants failed to prove bad faith,
`they also have advanced no credible argument that the
`destroyed evidence was “potentially exculpatory,” which is a
`separate requirement to succeed on this kind of due process
`claim. Id. (emphasis omitted). A field test and a lab test
`revealed the recovered substance to be heroin. Moreover, a
`small quantity of the substance seized from the vehicle on
`January 21 was not destroyed and also tested positive for
`heroin. And during the several months the drugs sat in the
`custody of
`the Maryland State Police,
`the defendants
`apparently never requested to test the evidence themselves,
`presumably because there was no doubt that it in fact was
`heroin.
`
`In sum, the defendants’ due process argument about the
`destruction of heroin evidence is unavailing.
`
`
`
`
`

`
`12
`
`IV
`
`
`
`Burnett claims that the search of his home by federal
`agents violated the Fourth Amendment and that the evidence
`seized from the home should have been excluded from trial.
`
`
`On March 1, 2012, after obtaining a search warrant,
`federal law enforcement officers searched Burnett’s home in
`Southeast Washington, D.C. There, officers found about
`280 grams of marijuana in different locations around the
`house, as well as 34 grams of heroin in a tea kettle. Officers
`also discovered more than $6,000 in U.S. currency and
`various drug paraphernalia, including three digital scales and
`a spoon with heroin residue.
`
`
`Before trial, Burnett moved to suppress the items seized
`
`during the search of his home. The District Court denied the
`motion. On appeal, Burnett maintains that evidence from his
`home should have been suppressed because it was recovered
`pursuant to a search warrant lacking probable cause. We
`review the District Court’s legal conclusions de novo and its
`factual findings for clear error. United States v. Glover, 681
`F.3d 411, 417 (D.C. Cir. 2012).
`
`
`In certain circumstances, the exclusionary rule bars the
`introduction of evidence obtained in violation of the Fourth
`Amendment. At the same time, the Supreme Court has
`emphasized that the exclusionary rule has limited application
`when a search is conducted pursuant to a search warrant.
`See United States v. Leon, 468 U.S. 897, 919-21 (1984).
`The exclusionary rule does not apply “when an officer acting
`with objective good faith has obtained a search warrant from a
`judge or magistrate and acted within its scope.” Id. at 920.
`That is because the “exclusionary rule was adopted to deter
`unlawful searches by police, not to punish the errors of
`
`
`
`

`
`13
`
`magistrates and judges.” Massachusetts v. Sheppard, 468
`U.S. 981, 990 (1984). Ordinarily, we cannot expect officers
`“to question the magistrate’s probable-cause determination or
`his judgment that the form of the warrant is technically
`sufficient.” Leon, 468 U.S. at 921.
`
`In this case, the federal magistrate judge found probable
`cause and issued a search warrant. Burnett contends that the
`search warrant was invalid because the judge’s probable cause
`finding depended in part on GPS tracking of McDuffie’s cell
`phone inside Burnett’s home. Burnett argues that the GPS
`tracking inside his home was itself unlawful under the Fourth
`Amendment and therefore could not be used to support the
`probable cause finding for a search warrant of the home.
`But even if the magistrate judge erred by relying in part on the
`GPS data and the magistrate judge’s probable cause finding
`was erroneous – which we certainly do not suggest – the
`evidence found in Burnett’s home would be admissible under
`Leon.
`
`To be sure, there are a few exceptions to the Leon rule.
`Burnett invokes the exception that applies when the officer’s
`affidavit supporting a warrant is “so lacking in indicia of
`probable cause as to render official belief in its existence
`entirely unreasonable.” Id. at 923. This case does not
`come close to qualifying for that exception.
`
`
`Even apart from the GPS data, the affidavit in this case
`described many pieces of evidence supporting the issuance of
`a search warrant. In a recording of one controlled heroin
`sale, McDuffie can be heard telling the confidential informant
`that he had picked up heroin on the day before the sale and
`left it with his “other man” who lived near the “jail.”
`Burnett’s home is located about two blocks from the
`Washington, D.C., Correctional Facility. GPS tracking data
`
`
`
`

`
`14
`
`from McDuffie’s car placed the car in the vicinity of Burnett’s
`residence on the evening before another sale from McDuffie
`to the confidential informant. Further, the confidential
`informant stated that during that particular transaction,
`McDuffie made an outgoing call in an attempt to acquire
`more heroin to sell to the confidential informant. Call
`records of McDuffie’s cell phone reveal that during the time
`of the sale, an outgoing call was made to Burnett’s phone.
`Finally, federal agents observed McDuffie and Burnett
`together for much of the day before another controlled sale.
`Agents saw the two men briefly stop at Burnett’s residence
`before traveling in McDuffie’s car to two other residences.
`According to the affidavit, the agents believed that McDuffie
`and Burnett had stopped at Burnett’s home to pick up drugs
`for distribution.
`
`This Court has held that “observations of illegal activity
`occurring away from the suspect’s residence” can “support a
`finding of probable cause to issue a search warrant for the
`residence, if there is a reasonable basis to infer from the
`nature of the illegal activity observed, that relevant evidence
`will be found in the residence.” United States v. Thomas,
`989 F.2d 1252, 1255 (D.C. Cir. 1993) (per curiam). In this
`case, McDuffie’s conversations with
`the confidential
`informant, together with the unchallenged GPS data and the
`federal agents’ observations of McDuffie and Burnett,
`provided a basis to believe that evidence of drug distribution
`would be found inside Burnett’s home.
`
`In short, the affidavit was not so lacking in indicia of
`probable cause as to render official belief in its existence
` Applying Leon, we
`entirely unreasonable.
`therefore
`conclude that the exclusionary rule did not bar admission of
`evidence seized from Burnett’s home.
`
`
`
`

`
`15
`
` V
`
`
`
`
`Thaxton and Jesse next challenge the Government’s
`introduction of evidence that those two defendants had pled
`guilty to federal drug charges in prior cases. Thaxton and
`Jesse contend that Federal Rule of Evidence 404(b) – which
`authorizes admission of “other acts” evidence in certain
`circumstances – did not authorize the admission of their prior
`guilty pleas. In the alternative, they claim that even if such
`evidence was admissible under Rule 404(b),
`it was
`inadmissible under Federal Rule of Evidence 403, which
`provides for exclusion of evidence that is substantially more
`prejudicial than probative.
`
`As to Rule 404(b), defendants argue that the Government
`must identify a chain of reasonable inferences – other than the
`defendant’s propensity to criminal acts – that links the
`proffered prior-bad-acts evidence to an element in the case.
`See, e.g., United States v. Turner, 781 F.3d 374, 391 (8th Cir.
`2015); United States v. Caldwell, 760 F.3d 267, 282 (3d Cir.
`2014); United States v. Gomez, 763 F.3d 845, 856 (7th Cir.
`2014) (en banc); United States v. Douglas, 482 F.3d 591, 599
`(D.C. Cir. 2007). According to defendants, the Government
`did not explain to the District Court nor did the District Court
`explain to the jury how, for example, Jesse’s earlier
`conviction of possession with intent to distribute heroin might
`help to establish his intent to conspire with Thaxton and
`McDuffie to distribute heroin. Defendants stress that it is
`important to differentiate between “the illegitimate use of a
`prior conviction to show propensity and the proper use of a
`prior conviction to prove intent.” United States v. Miller,
`673 F.3d 688, 699 (7th Cir. 2012) (quoting United States v.
`Jones, 389 F.3d 753, 757-58 (7th Cir. 2004)).
`
`
`
`
`

`
`16
`
`But we need not decide that Rule 404(b) issue or the Rule
`403 issue here because we conclude that any potential error in
`admitting the evidence was harmless. See Kotteakos v.
`United States, 328 U.S. 750, 776 (1946) (non-constitutional
`error harmless if no “substantial and injurious effect or
`influence in determining the jury’s verdict”); see also United
`States v. Johnson, 216 F.3d 1162, 1166 n.4 (D.C. Cir. 2000).
`
`On a number of occasions in which defendants have
`raised similar Rule 404(b) arguments on appeal, we have
`upheld the convictions on harmless error grounds. See, e.g.,
`United States v. McGill, 815 F.3d 846, 886-87 (D.C. Cir.
`2016); United States v. Moore, 651 F.3d 30, 63-64 (D.C. Cir.
`2011); United States v. Stubblefield, 643 F.3d 291, 296-97
`(D.C. Cir. 2011); United States v. Linares, 367 F.3d 941,
`952-53 (D.C. Cir. 2004); United States v. King, 254 F.3d
`1098, 1101-02 (D.C. Cir. 2001).
`
`So too here. “The government bears the burden of
`proving” harmless error, Linares, 367 F.3d at 952, and has
`met its burden here. The evidence of Thaxton’s and Jesse’s
`guilt in this case was so overwhelming that the prior
`convictions evidence could not have had a substantial impact
`on
`the
`jury’s verdict.
` The Government presented a
`cooperating witness, McDuffie. McDuffie’s testimony was
`devastating to the defendants. Importantly, his testimony
`was corroborated in many ways. His testimony about his
`trips with Thaxton
`to obtain heroin from Jesse was
`substantiated by surveillance, rental car records, GPS tracking
`data for McDuffie’s car and phone, as well as text messages
`sent by McDuffie, Thaxton, and Jesse to arrange meetings on
`the dates mentioned in McDuffie’s testimony. Further, in a
`recorded conversation between McDuffie and the confidential
`informant, McDuffie can be heard saying that his heroin
`supplier was his “best friend’s cousin.” Jesse is Thaxton’s
`
`
`
`

`
`17
`
`cousin. Finally, a large quantity of heroin was seized from a
`rental car in which Thaxton was traveling; drug paraphernalia
`and cash were seized from Thaxton’s home.
`
`The strength of the Government’s case is underscored by
`the absence of countervailing evidence. Jesse offered the
`testimony of his fiancée, but her testimony was unpersuasive.
`Her claim that she and Jesse met McDuffie and Thaxton in
`Philadelphia purely by chance on January 21, 2012, was
`belied by text messages revealing that Thaxton and Jesse had
`planned to meet in Philadelphia that day.
`
`Evidence of Thaxton’s and Jesse’s prior guilty pleas
`“formed a small part of what was otherwise an overwhelming
`case against” them. McGill, 815 F.3d at 886. Therefore,
`any possible error in admitting evidence of Thaxton’s and
`Jesse’s prior guilty pleas was harmless.
`
`
`VI
`
`
`Finally, we consider defendants’ sentencing challenges.
`
`First, Jesse and Burnett both challenge the District
`Court’s calculation, for Sentencing Guidelines purposes, of
`the total quantity of heroin attributable to the conspiracy.2
`That challenge fails.
`
`
`2 Thaxton initially joined the challenge to the District Court’s
`calculation of the total drug quantity. However, Thaxton’s
`challenge has since become moot. While his appeal was pending
`before this Court, the District Court lowered Thaxton’s sentence to
`10 years under an amendment to the Sentencing Guidelines. See
`U.S. SENTENCING GUIDELINES MANUAL supp. to app. C, amend.
`782 (Nov. 1, 2014) (lowering base offense level for many drug
`offenses); see also United States v. Cardoza, 790 F.3d 247 (1st Cir.
`2015). The lowered sentence of 10 years is the statutory
`
`
`
`

`
`18
`
`
`Second, Burnett also argues that the District Court erred
`in basing his sentence on conduct that occurred before he
`joined the conspiracy. That claim has merit, and we
`therefore vacate Burnett’s sentence and
`remand
`for
`resentencing of Burnett.
`
`
`
`
`A
`
`Jesse and Burnett maintain that the District Court, in
`applying the Guidelines, erred in calculating the total quantity
`of heroin attributable to their drug distribution conspiracy.
`Specifically, Jesse and Burnett allege
`that
`the Court
`double-counted a 130-gram quantity of heroin. They also
`claim that the evidence did not support the District Court’s
`finding of the amount of heroin obtained in the November and
`December 2011 transactions.
`
`the Sentencing Guidelines, a district court
`Under
`determines a defendant’s sentencing range by calculating the
`defendant’s base offense level. A base offense level, in turn,
`is derived from a defendant’s “relevant conduct.” For drug
`offenses, “relevant conduct” includes the quantity of drugs
`involved in the offense. See, e.g., United States v. Childress,
`58 F.3d 693, 721-22 (D.C. Cir. 1995). A district court
`makes findings of drug quantities under a preponderance of
`the evidence standard. United States v. Fields, 325 F.3d
`286, 289 (D.C. Cir. 2003). We review those factual findings
`for clear error.
`
`
`
`mandatory minimum for Thaxton’s offense, meaning that any error
`in the District Court’s calculation of drug quantity for Guidelines
`purposes is moot, as the parties all agree.
`
`
`
`

`
`19
`
`The defendants initially maintain that the District Court
`double-counted a 130-gram quantity of heroin. Even if they
`are correct on that point, however, the miscalculation did not
`affect their base offense level.
`
`The District Court attributed a total of 995.7 grams of
`heroin to the conspiracy, which placed Jesse and Burnett at a
`base offense level corresponding to 700 grams to 1 kilogram
`of heroin. A subtraction of 130 grams from 995.7 grams still
`leaves Jesse and Burnett well within the 700 gram to 1
`kilogram range. In other words, Jesse’s and Burnett’s
`offense level – and, in turn, their sentencing range – would
`not have changed even absent the double-counting.3
`
`Jesse and Burnett separately claim that the District Court
`erroneously attributed too much heroin to the November and
`December 2011 drug transactions. They are incorrect.
`McDuffie testified that he and Thaxton traveled to New York
`to obtain heroin in May, June, maybe July, October,
`November, December 2011, and January 2012. McDuffie
`also stated that he picked up no fewer than 50 grams on any
`single trip. And twice he stated that the most heroin that he
`and Thaxton ever received on a single trip was 400 grams.
`Based on McDuffie’s testimony, the District Court attributed
`50 grams to a May trip, 130 grams to a June trip, 130 grams to
`a July trip, and 235.7 grams to two trips in January.
`Crediting McDuffie’s testimony that McDuffie and Thaxton
`
`
`3 Jesse and Burnett argue only that the District Court’s
`miscalculation resulted in an incorrect base offense level. They do
`not make the further claim that, even within the same base offense
`level, the District Court would likely have imposed a sentence
`further down the Guidelines range. Nor do the defendants make a
`claim tha

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