[DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 19-11319
                         ________________________

                   D.C. Docket No. 4:16-cr-00029-RH-CAS-1



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

ERVIN BELL, III, a.k.a. Norris Bell,
a.k.a. President,

                                                Defendant - Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                               (October 5, 2020)
Before MARTIN, ROSENBAUM, and TALLMAN,∗ Circuit Judges.

PER CURIAM:

       Appellant Ervin Bell, III pled guilty to conspiracy to distribute and

distribution of cocaine and cocaine base. See 21 U.S.C. §§ 841(a)(1), 846. At

sentencing, a government witness testified that one of Bell’s cooperating

coconspirators, Stacy Young, had admitted to selling approximately 7.5 grams of

cocaine base a day for Bell for over two years, equating to more than six kilograms

of cocaine base over the course of the conspiracy. Based in part on that hearsay

evidence, the district court assigned Bell a base offense level of 32 and sentenced

him to 188 months in prison.

       On appeal, Bell argues that the district court clearly erred when it relied on

his coconspirator’s hearsay statement and that the court’s conclusion that he was

responsible for at least 840 grams of cocaine base was speculative. With the

benefit of oral argument and after careful review, we affirm.

                                               I

       In June 2014, the Drug Enforcement Administration (“DEA”) and local law

enforcement officers on a drug task force began investigating Bell, along with two

other individuals, Steven Koonce and Stacy Young, for alleged drug trafficking



∗ The Honorable Richard C. Tallman, Circuit Judge for the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
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from a residence Bell maintained on Golf Terrace Drive in Tallahassee, Florida.

As part of the investigation, the DEA conducted numerous controlled buys and

worked with several confidential informants. In 2016, a federal grand jury

returned a multi-count indictment against Bell, Koonce, and Young; all three

ultimately pled guilty.

      The circumstances surrounding Bell’s offense conduct were set forth in a

statement of facts accompanying his written plea agreement. As relevant here,

information obtained by task force officers from a confidential informant as

reported in the statement of facts implicated Young as selling four “circles” of

crack cocaine every day for Bell. The statement of facts noted that “[a]n incredibly

conservative estimate of one ‘circle’ a day”—at roughly seven grams of crack

cocaine per circle—“for one year would equate[] to 2,555 grams of crack cocaine

distributed by Young on behalf of Bell.”

      At his plea hearing, Bell disagreed with the reported drug amounts set forth

in the statement of facts, but admitted to selling more than 28 grams of crack

cocaine, and more than 500 grams of powder cocaine. He also admitted that the

sales identified in the statement of facts were “consistent with what [he] was

doing.” Prior to sentencing, Bell also objected to the drug quantity estimate and

base offense level set forth in his presentence investigation report (“PSI”). Rather

than the base offense level of 34 recommended by the probation office, Bell


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claimed that he was responsible for only 4,456.29 grams (4.46 kilograms) of

powder cocaine and 178.46 grams of crack cocaine, which, for sentencing

purposes, has a marijuana equivalent of 1,528.64 kilograms, resulting in a base

offense level of 30. However, Bell did not object to the statement in the PSI that

he had known Young for a number of years and trusted him to “run things” while

Bell was working at his “legit job.”

       Bell reiterated his disagreement with the government’s proposed drug

quantity at his sentencing hearing. In response, the government called Leon

County Sheriff’s Deputy George Stinson to testify regarding the drug quantities

reported by various confidential informants as well as cooperating codefendant

Young. Deputy Stinson stated that Young said that beginning in early 2014, he

sold “about a circle a day of crack cocaine and varying amounts of powder

cocaine” for Bell. According to Young, this continued until May of 2016.

Although a circle of crack cocaine per day for over two years would total more

than six kilograms of cocaine base, the government explained during its

examination of Deputy Stinson that it was conservatively focusing on only one

year of Young’s sales, for a total of 2,550 grams.1 Bell cross-examined Deputy

Stinson but did not testify or call any witnesses.


1
  Although the statement of facts described Young’s cocaine base sales as totaling 2,555 grams,
this minor discrepancy is immaterial because either quantity is more than the 840 grams for
which the district court ultimately found Bell responsible.
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      The court found that Deputy Stinson accurately testified as to what he was

told by the confidential informants and by Young, but noted that those sources did

not themselves testify and that “[i]ndividuals sometimes say things to the agent

that when they get in the courtroom with the bright lights and take the oath and

everybody’s here and the defendant’s present, they don’t say.” Nevertheless, the

court explained that it had to make the best determination of drug quantity it could

“based on the imprecise information provided, to the extent that it’s sufficiently

reliable.” The court explicitly discounted as insufficiently reliable some of what

Deputy Stinson conveyed about the drug weights reported by one of the

confidential informants other than Young, and eventually settled on at least 840

grams, but not more than 2.8 kilograms, of crack cocaine, resulting in a base

offense level of 32. Combined with the appropriate enhancements and reductions

suggested in the PSI, Bell’s total offense level was 34 and the court imposed a low-

end Guidelines sentence of 188 months’ imprisonment. This appeal eventually

followed.

                                          II

      A district court’s factual determination of the quantity of drugs attributable

to a defendant is reviewed for clear error. United States v. Rodriguez, 

, 1296 (11th Cir. 2005). We will not find clear error unless we are left with a




                                          5
“definite and firm conviction that a mistake has been committed.” United States v.

Rothenberg, 

, 624 (11th Cir. 2010) (quotation marks omitted).

                                         III

      In a case such as this one, where not all the drugs trafficked ultimately were

seized, the Sentencing Guidelines require the court to “approximate the quantity of

the controlled substance.” U.S.S.G § 2D1.1 cmt. n.5. The court’s approximation

“‘may be based on fair, accurate, and conservative estimates of the quantity of

drugs attributable to a defendant, [but it] cannot be based on calculations of drug

quantities that are merely speculative.’” United States v. Almedina, 

,

1316 (11th Cir. 2012) (quoting United States v. Zapata, 

, 1359 (11th

Cir. 1998)). When a defendant challenges the factual basis of his sentence, the

government bears the burden of establishing the disputed facts by a preponderance

of the evidence. See United States v. Sepulveda, 

, 890 (11th Cir.

1997).

      Regarding hearsay evidence, such as Deputy Stinson’s recitation of Young’s

hearsay statement regarding the quantity of crack cocaine he sold for Bell, we have

explained that such evidence may be considered at sentencing if it is reliable, see

United States v. Docampo, 

, 1098 (11th Cir. 2009), and provided the

defendant has the “opportunity to rebut the evidence or generally cast doubt upon

its reliability,” United States v. Castellanos, 

, 1496 (11th Cir. 1990).


                                          6
See also U.S.S.G. § 6A1.3 (permitting a court to “consider relevant information

without regard to its admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability to support its

probable accuracy”). The reliability of such evidence “must be determined on a

case by case basis.” United States v. Lee, 

, 1275 (11th Cir. 1995).

“While it may be advisable and in some instances necessary for a district court to

make distinct findings regarding the reliability of hearsay statements used at

sentencing, the absence of such findings does not necessarily require reversal or

remand where the reliability of the statements is apparent from the record.” United

States v. Gordon, 

, 761 (11th Cir. 2000).

      We cannot say here that the district court clearly erred in finding Bell

responsible for at least 840 grams of cocaine base. See 

(finding of clear error requires a definite and firm conviction that a mistake

has been committed). Much more than 840 grams is encompassed by Young’s

hearsay statement alone, the reliability of which is supported by other evidence in

the record. First, we note that Young pled guilty and was sentenced by the same

district judge who sentenced Bell so the statements attributed to Young are clearly

statements against his penal interest and carry greater reliability than statements

attributed to confidential informants who are not charged and never appear before

the court in the matter. Next, Bell himself admitted that the sales identified in the


                                           7
statement of facts (and which underlie the distribution counts to which he pled

guilty), including Young’s sales on his behalf, were “consistent with what [he] was

doing.” Bell also admitted to a lengthy relationship with Young and to trusting

him to “run things” at the Golf Terrace Drive drug house. Finally, Young’s

reported quantities matched what Deputy Stinson testified law enforcement were

able to obtain during controlled buys, and Young’s identification of Bell’s

suppliers and customers was corroborated by what other confidential informants

and law enforcement observed during the course of the investigation including the

execution of a search warrant on the drug house from which Bell and his

coconspirators conducted their drug business.

      Bell was the admitted head of this multi-year drug trafficking operation,

maintained the residence on Golf Terrace Drive where many of the drugs were

sold, and was himself present during multiple controlled purchases of cocaine. On

this record, we are satisfied that the district court’s drug quantity calculation was

not “merely speculative,” but rather was “based on fair, accurate, and conservative

estimates of the quantity of drugs attributable” to Bell based on the evidence

supporting the conspiracy charged. 

.

                                     *     *      *

      The calculation and attribution of drug quantities in cases where not all of

the drugs trafficked are seized is necessarily a difficult task. Here, the district


                                           8
court undertook that task with great care, thoroughly reviewing all of the evidence

before it settled on a conservative estimate of the drug quantity for which Bell

could fairly be held responsible. We discern no clear error in the district court’s

findings.

      AFFIRMED.




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