United States of America v. Dakota Siller

United States Court of Appeals
For the Eighth Circuit
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No. 21-2410
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Dakota Siller
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: April 11, 2022
Filed: April 27, 2022
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Before LOKEN, ARNOLD, and KOBES, Circuit Judges.
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ARNOLD, Circuit Judge.
After Dakota Siller pleaded guilty to conspiring to launder money for a drug
trafficking ring, see 18 U.S.C. § 1956(a)(1)(B)(i), (h), the district court, in calculating
Siller's recommended sentencing range, found that Siller was responsible for more
than five hundred grams of drugs. Siller challenges that determination on appeal and
says that his recommended sentencing range was too high as a result of the court's

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error. We agree with Siller that the court's calculation cannot stand, and so we reverse
and remand.
There are two factual components to the court's calculation. The first involves
an intercepted phone call between Siller and a leader of the conspiracy named Nathan
Martin, during which he directed Siller to move three-quarters of a pound (or about
340 grams) of methamphetamine into a safe. The calculation's second component
involved four separate wire transfers of one thousand dollars each that Siller says he
sent to drug suppliers. To determine how much methamphetamine four thousand
dollars would buy, the court had to calculate the drug's price. The presentence
investigation report said that the price was two thousand dollars per pound, which
meant that Siller was responsible for an additional two pounds of methamphetamine,
or roughly 907 grams. When the amounts from both components are added together,
that would mean that Siller was responsible for about 1,247 grams.
Siller objected to the PSR's calculation. As to the first component of the
calculation, Siller argued that "the facts contained in the PSR are insufficient to
demonstrate that the amount alleged even existed, let alone that [he] did, indeed,
engage in any actions related thereto." As to the second component, Siller challenged
the price of methamphetamine that the PSR recommended. He explained that the
evidence showed a price of $4,800 to $6,400 per pound, meaning that he was
responsible for only about 378 grams at most.
Siller reiterated these arguments at the sentencing hearing, but as to the part of
the calculation involving the intercepted phone call, he added a double-counting
argument: He said that "if three-quarters of a pound existed, it could be three-quarters
of a pound that he's already being held accountable for for that $4,000." The district
court found that Siller was accountable for the 340 grams involved in the intercepted
phone call. It rejected Siller's contention that the government failed to prove the drugs
referenced in that call actually existed and that Siller was responsible for them, but
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it did not address Siller's contention that these drugs might be among the drugs that
his wire transfers paid for.
The court then turned to Siller's objection to the price of methamphetamine. It
recognized that it need not resolve the objection about pricing because, even if Siller's
price range were correct, his Guidelines range would not change. Here's why: The
Guidelines provide that Siller's base offense level would be 30 if he were deemed
responsible for at least 500 grams but less than 1500 grams of methamphetamine. See
USSG § 2D1.1(c)(5). After finding Siller responsible for the amount involved in the
intercepted phone call (340 grams), the court had to determine the additional amount
that the wire transfers made Siller responsible for. Based on the price of
methamphetamine, Siller argued he was responsible for an additional 378 grams at
most, rather than 907 additional grams. But either number, when added to 340 grams,
brought Siller within the range corresponding to a base offense level of 30 because
the sum of each is between 500 and 1500 grams (718 grams and 1,247 grams). Siller's
Guidelines range was 100–125 months' imprisonment, but had the court found that
Siller was responsible for only 378 grams, then the range would have been 84–105
months. The court ultimately sentenced Siller to 84 months in prison. Though Siller's
sentence falls within the lower range that he argues for, the record does not show that
the court would have imposed the same sentence regardless of its drug-quantity
calculation, and so we decline to hold that any error was harmless. See, e.g., United
States v. Harris, 908 F.3d 1151, 1156 (8th Cir. 2018); see also Molina-Martinez v.
United States, 578 U.S. 189, 198 (2016).
We review drug-quantity findings for clear error. United States v. McArthur,
11 F.4th 655, 659 (8th Cir. 2021) (per curiam). The "government bears the burden of
proving drug quantity by a preponderance of the evidence." Id.
Siller's arguments on appeal replicate those he made before the district court.
We do not take issue with the district court's rejection of Siller's argument that the
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intercepted phone call doesn't prove that the drugs actually existed or that Siller
handled them as directed. But Siller's argument about potential double counting is
another matter. He maintains that the drugs involved in the intercepted phone call
"could quite possibly be the very same drugs that Mr. Siller is already being held
accountable for in wiring money to Martin's buyers," and the circumstances make it
"plausible that the .75 pounds . . . was purchased with the $4,000.00 that Mr. Siller
wire transferred." As we said, the district court did not resolve this contention, nor
does the government on appeal respond to or otherwise take issue with it. We observe
that the timing of events supports the conclusion that some of the drugs may have
been counted twice. Since it was the government's burden to demonstrate drug
quantity by a preponderance of the evidence, we do not think Siller's sentence can
stand on this record.
Nor do we think that Siller forfeited his double-counting argument by raising
it for the first time at the sentencing hearing. For one thing, the government doesn't
argue that he raised the issue too late, so it has forfeited any forfeiture argument it
could have made. See Calzone v. Summers, 942 F.3d 415, 422 (8th Cir. 2019) (en
banc). For another, though a party generally must raise objections to a PSR before the
sentencing hearing, see United States v. May, 413 F.3d 841, 849 (8th Cir. 2005); see
also Fed. R. Crim. P. 32(f)(1), Siller did in fact timely challenge the inclusion of the
drugs from the intercepted phone call in his drug-quantity calculation, arguing all
along that the evidence as presented in the PSR was insufficient to trigger the
enhancement. He simply advanced his double-counting argument at sentencing to
support that more general objection.
We therefore vacate the district court's judgment and remand for resentencing.
We leave it to the district court in the first instance to decide whether resentencing
should take place on the existing record, see United States v. Berrier, 28 F.4th 883,
888 (8th Cir. 2022), and to resolve Siller's objection concerning the price of
methamphetamine, if necessary.
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