We must affirm the court's drug quantity finding unless "`on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.'" United States v. McMillen, 8 F.3d 1246, 1250 (7th Cir. 1993) (quoting United States v. Duarte, 950 F.2d 1255, 1262 (7th Cir. 1991), cert. denied, ___ U.S. ___, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992)), cert. denied, ___ U.S. ___, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); see also United States v. Sykes, 7 F.3d 1331, 1335 (7th Cir. 1993). The government bears the burden of establishing the quantity of drugs by a preponderance of the evidence.
Extrapolation requires circumstances that permit the inference that known conduct will recur, or has recurred, under similar conditions. See, e.g., United States v. McMillen, 8 F.3d 1246 (7th Cir. 1993) (using extrapolation to determine drug quantity under the Guidelines), cert. denied, ___ U.S. ___, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); United States v. Sklar, 920 F.2d 107 (1st Cir. 1990) (same), described in Part IV.C, infra. Extrapolation has been used by courts in a variety of contexts.
Our circuit holds a conspirator responsible for the amount of drugs that conspirator actually distributes, as well as for any quantity distributed by the conspiracy that was reasonably foreseeable to the conspirator. See Magana, 118 F.3d at 1205; United States v. McMillen, 8 F.3d 1246, 1253 (7th Cir. 1993), cert. denied sub nom. Raji v. United States, 511 U.S. 1071 (1994); see also United States v. Garcia, 66 F.3d 851, 860-61 (7th Cir. 1995) ("[T]hose convicted of conspiring to violate the drug laws are criminally responsible for the total quantity of drugs in which the conspiracy they joined can reasonably be estimated to have dealt.") (quotation omitted). Similarly, USSG § 1B1.3(a)(1)(B) holds a defendant accountable for all drugs distributed by a conspiracy that were reasonably foreseeable, and therefore attributable, to the defendant.
Drug quantities may be estimated based upon average sales over a given time, or by converting money earned in prior sales into an estimated quantity sold. United States v. McMillen, 8 F.3d 1246, 1250–51 (7th Cir.1993); United States v. Townsend, 73 F.3d 747, 753 (7th Cir.1996). Though Avery argues that the government included drug quantities attributable to the conspiracy, the evidence does not support this contention.
Cases addressing the purity of "street" heroin (as was sold in this case) have identified the drug's purity as varying from two to ten percent, and fail to support Mikaelian's assertion that four percent heroin is unusually impure. See, e.g., United States v. Gibson, 105 F.3d 1229, 1235 (8th Cir. 1997) (expert testimony that lower level dealers would sell diluted 2% to 7% pure heroin to users); United States v. Edwards, 77 F.3d 968, 976 (7th Cir. 1996) (expert testimony that pure heroin usually diluted before street sale, in this case to less than 5% purity); United States v. Cardenas, 9 F.3d 1139, 1145 (5th Cir. 1993) (expert testimony that "user" heroin is of less than 10% purity); United States v. McMillen, 8 F.3d 1246, 1252 n. 2 (7th Cir. 1993) (evidence that "user strength" heroin was 7%-11%); United States v. Smiley, 997 F.2d 475, 477 (8th Cir. 1993) (expert testimony that most heroin in Kansas City had purity levels from 2%-4%); United States v. Pugliese, 712 F.2d 1574, 1580 (2d Cir. 1983) (expert testimony that purity of heroin in New York City might be 2%-3%); but see United States v. Ihegworo, 959 F.2d 26, 28 (5th Cir. 1992) (court stated that average purity of street heroin is 13%-20%). D. Mikaelian's mental condition
As to the second shipment, I read Freeman, Jr.'s testimony that "[e]ach trip my father took it was somewhere between 35 and 50 kilos of cocaine" (Supp.App. III p. 75a) to yield the rational inference, not that there were four deliveries ranging in size from 35 to 50 kgs as the majority suggests, see Maj. Op. at 1246-48, but that each of the four shipments weighed between 35 and 50 kgs, a fact which, on the majority's own analysis, would result in an average of 42.5 kgs for each shipment. Courts have sanctioned the use of averages to compute drug weights in other cases. See, e.g. United States v. McMillen, 8 F.3d 1246, 1250-51 (7th Cir. 1993); see generally Federal Judicial Center, Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues 21-32 (1994). And the majority here so acknowledges. Maj. Op. at 1247.
The government bears the burden of establishing the quantity of drugs by a preponderance of evidence. United States v. McMillen, 8 F.3d 1246, 1250 (7th Cir. 1993). Beal claims that the district court clearly erred in estimating the amount of cocaine base delivered to Madison as part of the same drug operation to be 104 grams of cocaine base.
United States v. Redmond, 667 F.3d 863, 875 (7th Cir. 2012) (citing United States v. McMillen, 8 F.3d 1246, 1250-51 (7th Cir. 1993)). Counsel did not perform deficiently by failing to raise this challenge.
The court can estimate the quantity using averages supported by evidence in the record. See United States v. McMillen, 8 F.3d 1246, 1250-51 (7th Cir. 1993), cert. denied, 511 U.S. 1071, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994) (upholding district court's quantity determination where the court determined the average number of transactions per week, knew the amount of drugs in 11 of 34 known transactions, determined the average amount of drugs in each of the 11 transactions and multiplied the average number of transactions per week by the average drug quantity per transaction and by the number of weeks the defendant was a member of the conspiracy). However, relevant conduct is to be determined after a searching and individualized inquiry into each defendant's role in the alleged conspiracy.