United States of America v. Malik J. Moss, a/k/a Bleek

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-3059
_____________
UNITED STATES OF AMERICA
v.
MALIK J. MOSS,
a/k/a Bleek,
Appellant
_____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No. 1:22-cr-00024-001)
District Judge: Hon. Colm F. Connolly
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 12, 2024
Before: RESTREPO, MONTGOMERY-REEVES, AMBRO,
Circuit Judges
(Filed: February 18, 2025)
Daniel C. Breslin
LAW O FFICE OF CHRISTOPHER S. K OYSTE , LLC
709 Brandywine Boulevard
Wilmington, DE 19809
Counsel for Appellant
David C. Weiss, Unites States Attorney
Jesse S. Wenger, Assistant United States Attorney, Chief of
Appeals
Benjamin L. Wallace, Assistant United States Attorney
Alexander P. Ibrahim, Assistant United States Attorney

-- 1 of 8 --

2
U.S. D EPARTMENT OF JUSTICE
O FFICE OF U NITED STATES A TTORNEY
1313 N Market Street
Hercules Building, Suite 400
Wilmington, DE 19801
Counsel for Appellees
_________
OPINION OF THE COURT
_________
RESTREPO, Circuit Judge
Appellant Malik Moss appeals his 384-month sentence for
conspiracy to distribute methamphetamine and heroin in viola-
tion of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. He con-
tends that the record does not support the District Court’s fac-
tual findings related to (1) the weight and purity of the meth-
amphetamine and (2) the application of the obstruction-of-jus-
tice enhancement. Seeing no clear error in the District Court’s
findings, we will affirm the judgment.
I. BACKGROUND
After Moss pleaded guilty to conspiracy to distribute meth-
amphetamine and heroin, the District Court held an evidentiary
hearing to determine the quantity and purity of the metham-
phetamine attributable to him for sentencing purposes. At the
hearing, the government focused on two purchases by Moss
and his co-conspirator Jacob Santiago to establish drug quan-
tity: one on or about October 27–28, 2021, and another on No-
vember 11, 2021. As to the first purchase, DEA Task Force
Officer Trevor Riccobon testified that a phone call between
Santiago and Moss on October 27 revealed that they collec-
tively planned to buy ten pounds of crystal methamphetamine
from a supplier in Reading, Pennsylvania. Cellphone data also
showed that Moss’s cellphone traveled from Wilmington to
Reading on October 27 and 28. The government then pre-
sented multiple communications by Moss related to the pur-
chase. Moss texted several people on the night of October 28

-- 2 of 8 --

3
broadcasting that he had methamphetamine for sale. And in a
recorded phone call on November 3, 2021, Moss told another
co-conspirator that Reading is “where the ice [i.e., metham-
phetamine] is” and that he “just went up there” and “bought 10
pounds of ice.” App. 57.
As for the November 11 purchase, Officer Riccobon testi-
fied that cellphone data showed Moss, Santiago, and another
co-conspirator traveled to Reading that day. In a phone call
between Santiago and Moss on November 12, Santiago con-
firmed with Moss that they had five “pound traps” lined up to
sell. App. 89. After considering Officer Riccobon’s testi-
mony, the wiretap transcripts, and the exhibits submitted by the
government, the District Court determined that the government
established by “more than a preponderance” that Moss and
Santiago bought fifteen pounds of methamphetamine.
App. 12–13.
As to purity, the District Court relied on the purity levels of
controlled purchases made directly from Moss. Samples from
four controlled purchases had purity levels of 95%, 95%, 94%,
and 62%. Affording Moss “lenity on this issue,” the District
Court applied a purity level of 62%—the lowest known purity
level of any methamphetamine purchase associated with the
conspiracy—to calculate Moss’s sentence. App. 14.
The evidentiary hearing was initially scheduled for Decem-
ber 12, 2022, but it was rescheduled for December 21 because
of Santiago’s absence. During the December 12 proceeding
where the hearing was rescheduled, the government notified
the District Court that a cooperating co-conspirator—who had
been scheduled to testify against Moss—wished to breach his
cooperation agreement and no longer testify. Of note, Moss’s
girlfriend Shannon Ruth and her friend Sharee Christian at-
tended the December 12 proceeding but arrived after the dis-
cussion of the co-conspirator’s decision.
At the December 21 evidentiary hearing, U.S. Marshals
spotted Christian trying to record the proceeding with her
phone. The government later submitted a letter to the District
Court detailing evidence it obtained from Moss’s prison com-
munications showing that Moss had arranged for his girlfriend
to record the original and rescheduled evidentiary hearings to
expose the cooperating co-conspirator. The letter also outlined

-- 3 of 8 --

4
evidence that, while in prison, Moss sent the co-conspirator
notes threatening his family’s safety if he testified against
Moss. Based on these findings, the government informed the
District Court that it would seek an enhancement for obstruc-
tion of justice.
At Moss’s sentencing hearing, the District Court reviewed
the prison communications about the planned recording of the
evidentiary hearing and heard testimony from the co-conspira-
tor about the threatening notes he received. The District Court
concluded that either ground would justify an obstruction-of-
justice enhancement. Accordingly, it applied the enhancement
and added two points to Moss’s base offense level. The Dis-
trict Court sentenced Moss to 384 months in prison and noted
that he received the equivalent of two years for the obstructive
conduct.
II. D ISCUSSION1
The District Court determined Moss’s base offense level by
applying U.S.S.G. § 2D1.1(a) and applied an obstruction-of-
justice enhancement under U.S.S.G. § 3C1.1. Moss does not
question the District Court’s legal interpretation of those
guidelines. Instead, he challenges its factual findings related
to drug quantity, drug purity, and application of the obstruc-
tion-of-justice enhancement. As with all “facts relevant to sen-
tencing,” the government’s burden of proof is a preponderance
of the evidence. United States v. Grier, 475 F.3d 556, 568 (3d
Cir. 2007) (en banc). We review the District Court’s “factual
findings relevant to the Guidelines for clear error.” United
States v. Kirschner, 995 F.3d 327, 333 (3d Cir. 2021). The
clear error standard is highly deferential:
If the district court’s account of the
evidence is plausible in light of the
record viewed in its entirety, the
court of appeals may not reverse it
even though convinced that had it
been sitting as the trier of fact, it
would have weighed the evidence
1 This Court has appellate jurisdiction under 28 U.S.C. §
1291 and 18 U.S.C. § 3742. The District Court had subject-
matter jurisdiction under 18 U.S.C. § 3231.

-- 4 of 8 --

5
differently. Where there are two
permissible views of the evidence,
the factfinder’s choice between
them cannot be clearly erroneous.
United States v. Caraballo, 88 F.4th 239, 244 (3d Cir. 2023)
(quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74
(1985)).
Moss points to three of the District Court’s factual findings
as clearly erroneous. First, he argues the record does not sup-
port the finding that he purchased 15 pounds of methampheta-
mine. We disagree. The government presented ample evi-
dence of the amount of drugs purchased. For the October 27–
28 purchase, the District Court based its finding on (1) rec-
orded phone calls between Moss and Santiago in which they
discussed buying ten pounds of methamphetamine, (2) cell-
phone data showing Moss and Santiago traveled to Reading
after those discussions, (3) Moss’s text messages on the way
back from Reading broadcasting that he had “ice” for sale, and
(4) statements from Moss confirming he “bought ten pounds of
ice” in Reading. App 13. For the November 11 purchase, the
District Court relied on (1) cellphone data and texts that re-
vealed Moss and Santiago traveled to Reading that day and (2)
texts and recorded calls from November 12 confirming that
Moss and Santiago had five “pound traps” lined up to sell fol-
lowing another trip to Reading. App. 13–14. Given the defer-
ential clear error standard, the District Court’s finding is no
doubt a “plausible” interpretation of the evidence that Moss
and Santiago purchased fifteen pounds of methamphetamine.
Caraballo, 88 F.4th at 244.2
2 Even if we found clear error on the five-pound purchase,
the guidelines range would be the same. At the relevant purity
level, ten pounds and fifteen pounds result in the same base
offense level. See U.S.S.G. § 2D1.1(c)(2). “If a district court
makes an error in its drug quantity determination that does not
affect the base offense level or Guidelines range, the error is
harmless.” United States v. Diaz, 951 F.3d 148, 159 (3d Cir.
2020).

-- 5 of 8 --

6
Second, Moss contends that the District Court unreasona-
bly relieved the government of its burden of proof when it as-
signed the methamphetamine purchased in Reading a purity
level of 62%. In determining drug quantity, our precedent in-
structs that “some degree of estimation must be permitted,”
particularly because “the government usually cannot seize and
measure all the drugs that flow through a large drug distribu-
tion conspiracy.” United States v. Collado, 975 F.2d 985, 998
(3d Cir. 1992). For methamphetamine offenses, “purity mat-
ters” because the district court must consider the quantity of
pure or “actual” methamphetamine to determine the offense
level. United States v. Johnson, 94 F.4th 661, 664 (7th Cir.
2024) (quoting United States v. Carnell, 972 F.3d 932, 939 (7th
Cir. 2020)); see also U.S.S.G. § 2D1.1(c) n.B (providing that
sentencing courts are to “use the offense level determined by
the entire weight of the mixture or substance, or the offense
level determined by the weight of the . . . methamphetamine
(actual), whichever is greater”).
Applying the same principle to purity as we do to quantity,
some degree of estimation by the sentencing court must be ac-
ceptable. Other circuits have found it appropriate for a district
court to estimate the purity of unseized drugs based on the pu-
rity of seized drugs. In United States v. Newton, the defendant
challenged the district court’s purity calculation for “unrecov-
ered” methamphetamine because its purity was “impermissibly
uncertain.” 31 F.3d 611, 614 (8th Cir. 1994). Because a dis-
trict court “may estimate total drug quantity based on evidence
that reasonably supports a factual finding,” the Eighth Circuit
held that “[t]he district court properly relied on the purity level
of the [methamphetamine] actually seized.” Id.
In United States v. Lopes-Montes, the Ninth Circuit noted
its alignment with the Eighth and Seventh Circuits in affirming
a sentence based on a drug purity estimate calculated using
seized methamphetamine. 165 F.3d 730, 732 (9th Cir. 1999).
The Lopes-Montes court explained that “using the purity of
drugs actually seized to estimate the purity of the total quantity
of drugs . . . is an appropriate method of establishing the base
offense level.” Id.
In a more recent case, the Seventh Circuit found that the
district court erred in assuming that unseized

-- 6 of 8 --

7
methamphetamine was 100% pure and should have estimated
purity based on the methamphetamine actually seized from the
defendant. Johnson, 94 F.4th at 664. Similar to the drugs
seized in this case, the drugs seized in Johnson were of varying
levels of purity. Id. The Seventh Circuit held that the district
court committed plain error because the 100% purity estimate
led to a higher guidelines range than would have applied if the
district court had used the lowest purity level from the seized
drugs. Id. at 664–65. “When faced with competing estimates
of drug purity,” the Seventh Circuit explained that it “encour-
age[s] district courts to err on the side of caution and select the
more conservative estimate.” Id. at 664.
We agree with our sister circuits that it is reasonable for a
district court to estimate the purity of unseized drugs based on
the purity of drugs seized from the defendant. And we echo
the guidance provided by the Seventh Circuit to exercise pru-
dence and favor the more conservative estimate when purity
levels vary.
That is precisely what the District Court did here. It as-
signed a purity level based on the lowest purity sample pur-
chased directly from Moss. Rather than assign a significantly
higher purity level based on samples from the other controlled
purchases or samples from drugs seized at the homes of co-
conspirators, the District Court selected the more conservative
estimate. Given the short amount of time between the con-
trolled purchases and the bulk purchases by Moss and Santi-
ago, its determination that the drugs were at least 62% pure was
not clearly erroneous.
Finally, the District Court’s factual findings underlying the
obstruction-of-justice enhancement are not clearly erroneous.
The District Court considered ample evidence in making its
determination—including testimony from the cooperating co-
conspirator about the threatening notes he received as well as
communications between Moss and his girlfriend confirming
that he intended to expose the co-conspirator by recording the
proceedings. Taken together, the District Court had significant
evidence supporting the enhancement, and thus the decision to
apply it was not clearly erroneous.

-- 7 of 8 --

8
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
sentence entered by the District Court.

-- 8 of 8 --