USA v. Demetrius Marcellus Green

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 14, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-16491
Non-Argument Calendar
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D. C. Docket No. 08-00315-CR-14-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS MARCELLUS GREEN,
a.k.a. DD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 14, 2010)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Demetrius Marcellus Green appeals his sentence of 194 months’

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imprisonment after pleading guilty to conspiracy to distribute and possess with
intent to distribute crack and powder cocaine, in violation of 21 U.S.C. § 846. On
appeal, Green argues that the district court clearly erred in determining the drug
quantity for which he was held accountable for purposes of calculating his base
offense level under U.S.S.G. § 2D1.1.
We review a district court’s factual determination of the drug quantity
attributable to a defendant for clear error. United States v. Rodriguez, 398 F.3d
1291, 1296 (11th Cir. 2005). “In estimating the quantity of drugs attributable to a
defendant, a court may base its computation on evidence showing the average
frequency and amount of a defendant’s drug sales over a given period of time.”
United States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996). “Although
sentencing may be based on fair, accurate, and conservative estimates of the
quantity of drugs attributable to a defendant, sentencing cannot be based on
calculations of drug quantities that are merely speculative.” United States v.
Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).
In this case, the probation officer calculated the drug quantity for which
Green was accountable by relying on an estimate provided by Green’s drug
supplier, Telly Petty. Petty later testified at Green’s sentencing hearing and
provided a more conservative estimate. Green argues that the district court erred
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by adopting the probation officer’s drug-quantity calculation, rather than using
Petty’s sworn testimony to calculate the drug quantity.
We find no reversible error. As the government correctly explains in its
brief, even if the district court used the most conservative figures from Petty’s
testimony, Green’s base offense level would have remained the same. Thus, even
if the court erred by adopting the probation officer’s drug-quantity calculation, any
such error was harmless. We further reject Green’s suggestion that Petty’s varying
estimates rendered him unreliable.
AFFIRMED.
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