United States of America v.  Dariusz Piotr Kiulin

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4831 
DARIUSZ PIOTR KIULIN,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-02-2-FO)
Argued: January 23, 2004
Decided: March 16, 2004
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkinson and Judge Michael joined.
COUNSEL
ARGUED: Hal W. Broadfoot, Jr., BEAVER, HOLT, STERNLIGHT,
GLAZIER, P.A., Fayetteville, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee. ON BRIEF: Richard B. Glazier, H. Gerald
Beaver, BEAVER, HOLT, STERNLIGHT, GLAZIER, P.A., Fayette-
ville, North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Christine Witcover Dean, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Appellant Dariusz Piotr Kiulin pleaded guilty to possessing, with
intent to distribute, 3,4-Methylenedioxymethamphetamine (popularly
known as ecstasy) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2, and to interstate travel with the intent to promote an unlawful
activity in violation of 18 U.S.C. §§ 1952(a)(3) and 2. The district
court sentenced Kiulin to 151 months in prison for the first violation
and 60 months, to run concurrently, for the second violation. Kiulin
now appeals from the district court’s determination of his sentence.
I.
Appellant, Kiulin, was riding in the passenger seat of a rental car,
driven by Piotr Franciszek Cetera, when the car was stopped by Dep-
uty Steven Lovin of the Robeson County, North Carolina Police
Department, for weaving between lanes. After routine questioning of
both Cetera and Kiulin, Kiulin consented to a search of the car. In the
course of the search, Deputy Lovin discovered 2,996 pills of ecstasy,
$11,603 in United States currency, and $78,250 in Canadian currency,
all wrapped separately in a black t-shirt and hidden in the car’s trunk
under the spare-tire cover. Deputy Lovin also found $9,337 in money
orders in Kiulin’s bag. Converted to United States dollars, the total
amount of money in Kiulin’s possession was $67,987.96.
Kiulin and Cetera were subsequently arrested, and, after waiving
his Miranda rights, Kiulin was interrogated by the Robeson County
police. After questioning, Kiulin signed a statement that the ecstasy
found in the rental car did not belong to him, but, instead, belonged
to a man named "Steve," who Kiulin met at a bar in Toronto, Canada,
and knew only by first name; the statement reported that during this
initial meeting Steve offered to pay Kiulin $10,000 to drive the pills
to south Florida and that, at a subsequent meeting the next day, Kiulin
accepted the offer. J.A. 26. The statement further recited that, after
accepting the offer, Kiulin flew to Newark, New Jersey, rented a car,
and drove 400 miles to Niagara Falls, where he reunited briefly with
Steve. J.A. 26-27. At this time, Steve gave Kiulin both the pills and
the money, which Kiulin believed to be "drug money," eventually
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found by Deputy Lovin in the car. J.A. 27. Steve also gave Kiulin an
initial payment of $6,000 for his services, and promised to pay the
remaining $4,000 after Kiulin delivered the "merchandise." Id. Kiulin
was in the process of transporting the money and the pills to Florida,
pursuant to his agreement with Steve, when he was stopped by Dep-
uty Lovin.
The signed statement did not include any reference to the role that
Cetera, the driver of the car, played in the transportation of the pills.
However, roughly three days after Kiulin signed the statement, Dep-
uty Lovin prepared a typed attachment, documenting additional state-
ments that Kiulin had made relating to Cetera on the day of his arrest.
The attachment stated that Kiulin had said that Cetera accompanied
him from Newark to Niagara Falls, that Cetera had helped him hide
the pills and cash in the trunk of the car, and that Kiulin planned to
divide the $10,000 payment from Steve with Cetera. J.A. 27-28, 102.
That Cetera played an active role in the trafficking of ecstasy was also
confirmed by two inmates at the Robeson County Jail, both of whom
testified under oath at Cetera’s trial that Kiulin and Cetera spoke
"openly and freely" about this and other drug trafficking experiences
to them and other inmates while incarcerated. J.A. 39-41.
On January 1, 2002, the government recorded a conversation
between Cetera and Andrew Kubiak, a.k.a. Przemek, a mutual friend
of both Cetera and Kiulin, in which Cetera told Kubiak that he and
Kiulin "agreed that [Kiulin] will say that [Cetera] had nothing to do
with" the transportation of the pills and money. J.A. 38. Later in the
conversation, Cetera asked Kubiak, who had recently spoken to
Kiulin, whether Kiulin "changed his statement." Kubiak assured him
that Kiulin had not. J.A. 39. In response to this assurance, Cetera told
Kubiak, "I have a chance because, you know, he said that everything
is his." Id.
Kiulin’s later statements regarding Cetera’s involvement in the
transportation of ecstasy were consistent with Cetera’s description of
the agreement that he and Kiulin had struck. In contrast to the state-
ment that Kiulin made to Deputy Lovin, Kiulin told Agent Stogsdill
that he did not pick Cetera up until after he had driven to Niagara
Falls and received the pills and cash from Steve. J.A. 65. He further
stated that, although Cetera helped him hide the pills and cash in the
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trunk, he could not remember whether he had informed Cetera that
either were connected to illicit activity. J.A. 66-67.7
On April 1, 2002, without an agreement with the United States,
Kiulin pleaded guilty to possession of ecstasy with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1), and to interstate travel with the
intent to promote an unlawful activity, in violation of 18 U.S.C.
§ 1952(a)(3). At sentencing, the district court determined that all of
the money found in Kiulin’s possession at the time of his arrest was
drug-related, and converted that amount of money into ecstasy doses
by valuing ecstasy at $20 per pill. In addition, the district court held
that Kiulin had obstructed justice-and added two sentencing levels
pursuant to U.S.S.G. § 3C1.1. The district court also concluded that
Kiulin was neither a "minor" participant in this crime under U.S.S.G.
§ 3B1.2, nor a "leader" under U.S.S.G. § 3B1.1, and refused to adjust
Kiulin’s sentence on either basis. Finally, the district court denied
Kiulin a downward adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1. Kiulin now appeals numerous aspects of the district
court’s sentencing determinations.
II.
Kiulin first challenges the district court’s finding that he qualified
for a two level increase for obstructing justice under U.S.S.G.
§ 3C1.1. He argues that his statements to Agent Stogsdill and others,
that Cetera did not accompany him to Niagara Falls to receive ecstasy
and money and that he did not know if Cetera was aware that illegal
drugs were in the car, cannot serve as a basis for an obstruction of jus-
tice enhancement because they were statements describing the true
course of events, not, as the district court held, part of an agreement
by which he would lie to protect Cetera from criminal liability.
In order to apply a sentencing enhancement under U.S.S.G.
§ 3C1.1, the district court must conclude that the government has
shown, by a preponderance of the evidence, that the defendant "will-
fully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice . . . ." United States v. Puckett, 61 F.3d 1092,
1095 (4th Cir. 1995). We will not disturb a district court’s factual
findings at sentencing, including those that serve as a basis for its
application of an obstruction of justice adjustment, unless they consti-
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tute clear error. See, e.g., United States v. Stewart, 256 F.3d 231, 253
(4th Cir. 2001).
In this case, it is clear that the district court’s finding that Kiulin
entered into an agreement to lie in an attempt to exonerate Cetera is
not only not clearly erroneous, but, in fact, based on a strong evidenti-
ary foundation. First and foremost, in a conversation recorded by the
government, Cetera told Andrew Kubiak, a friend of both Cetera’s
and Kiulin’s, that he and Kiulin, "agreed that [Kiulin] will say that
[Cetera] had nothing to do with" the transportation of the pills and
money. In response, Kubiak reassured Cetera that he had recently
spoken with Kiulin about this agreement and that Kiulin intended to
honor it. J.A. 39. Kiulin urges that this conversation must be inter-
preted as showing nothing more than that he had agreed not to impli-
cate Cetera in an offense in which Cetera was not involved. Kiulin’s
actions do not support such an innocuous interpretation, however. In
the interrogation that immediately followed his arrest, Kiulin
informed Deputy Lovin that Cetera had accompanied him to obtain
the ecstasy and money in Niagara Falls, helped him to hide the
ecstasy and money in the rental car, and that he planned to reward
Cetera for his help by splitting the payment for transporting the con-
traband. J.A. 24-25, 102. Only after Kiulin and Cetera spent time
together in the Robeson County Jail did Kiulin begin to claim that he
alone traveled to Niagara Falls to receive the ecstasy, and that, to his
knowledge, Cetera did not know whether the pills and money were
illegal. These claims not only conflicted with Kiulin’s earlier state-
ments to Deputy Lovin on the day of his arrest, but also with the
reports of two of Kiulin’s cellmates at the Robeson County Jail, who
testified under oath that Kiulin and Cetera spoke "openly and freely"
about their experiences trafficking drugs together and about the
amount of money that they had made as a result.
On the basis of this evidence, the inference drawn from the
recorded conversation by the district court was well supported and
certainly not clearly erroneous. We therefore affirm the district
court’s conclusion that Kiulin obstructed the administration of justice.1
1Kiulin also objects to the district court’s refusal to adjust his offense
level downward for an acceptance of responsibility, pursuant to U.S.S.G.
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III.
To calculate the total drug quantity related to Kiulin’s offense for
the purpose of determining his base offense level, the district court
combined the 2,996 pills of ecstasy found in the car with the "drug
equivalent" of the $67,987.96 of currency found alongside it. The
court determined the "drug equivalent" of the currency by dividing
the value of the currency, $67,987.96, by $20, the estimated cost of
a single pill of ecstasy. On appeal, Kiulin does not dispute that this
currency was "drug money," and should have been included in the
calculation of the total quantity of drugs for which he was responsi-
ble, see United States v. Hicks, 948 F.2d 877, 882 (4th Cir. 1992)
(providing that a district court may include the "drug equivalent" of
cash related to drug activity in calculating the total quantity of drugs
related to the offense). Rather, he contends that the district court must
be reversed because it did not "err on the side of caution" in its valua-
tion of ecstasy at $20 per pill and, for this reason, improperly inflated
its approximation of the total amount of drugs attributable to Kiulin.
See United States v. Scheele, 231 F.3d 492, 499 (9th Cir. 2000) (Rein-
hardt, J.).
This court has not heretofore required that sentencing courts "err
on the side of caution" in approximating drug quantity, and we
decline to do so today. In those circuits where such caution is required
at sentencing, it is justified, not as a matter of course, but instead as
a prophylactic measure to ensure that, when a sentencing court "is
choosing between a number of plausible estimates of drug quantity,
none of which is more likely than not the correct quantity," the
amount attributed to the defendant is supported by the preponderance
of the evidence. See United States v. Walton, 908 F.2d 1289, 1301-02
§ 3E1.1. Because we conclude that the district court was correct in find-
ing that Kiulin entered into an agreement with Cetera to shield Cetera
from criminal liability, and, in furtherance of this agreement, actively
attempted to mislead state and federal law enforcement (and the court)
as to the nature of Cetera’s involvement in the offense, we affirm the dis-
trict court’s finding that Kiulin had not fully accepted responsibility for
his offense, and, therefore, did not merit a downward departure on this
basis.
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(6th Cir. 1990); see also United States v. August, 86 F.3d 151, 154
(9th Cir. 1996) (relying on justification set forth in Walton to require
district courts to "err on the side of caution"); United States v. Sklar,
920 F.2d 107, 113 (1st Cir. 1990) (same). We do not agree that it is
necessary to impose this restraint on the discretion of sentencing
courts in order to prevent them from making findings unsupported by
a preponderance of the evidence; sentencing courts are bound to abide
by the mandates of the guidelines, just as this court is, and, when they
fail to do so, both their legal and factual findings are subject to our
review. Thus, we hold that a district court need not "err," on the side
of caution or otherwise; it must only determine that it was more likely
than not that the defendant was responsible for at least the drug quan-
tity attributed to him. See United States v. Cook, 76 F.3d 596, 604
(4th Cir. 1995). Of course, its calculation of drug quantity, once
made, is a factual finding, which we thereafter review for clear error.
See United States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002).
Moreover, because the district court, in this case, accepted the val-
uation of ecstasy at $20 per dose from the presentence report, Kiulin,
as the defendant, had "the affirmative duty to show that the informa-
tion contained in the report [was] inaccurate or unreliable." Id. After
reviewing the evidence before the district court, we conclude that
Kiulin failed to show that the $20 estimate in the presentence report
was either "unreliable or inaccurate" and that the district court’s valu-
ation of ecstasy at $20 per pill therefore was not clearly erroneous.
The estimation that a pill of ecstasy cost $20 was supported in the
presentence report by Special Agent Phil Kearney of the Drug
Enforcement Agency (DEA), a law enforcement officer who, it is rea-
sonable to presume, possessed specialized knowledge of the price of
ecstasy in North Carolina at the time of Kiulin’s arrest. J.A. 103. Nei-
ther of the two government reports presented by Kiulin to the district
court contradicted this figure — or even purported to offer a contem-
poraneous estimate of the cost of ecstasy at the time of Kiulin’s arrest.
The first, a July 2000 report on ecstasy prepared by the Office of
National Drug Policy, J.A. 140-42, appeared to rely on national data
from 1996-99 and estimated that ecstasy sells for from $20-30 per
pill, a range that actually confirms the reliability and accuracy of the
price of $20 per pill reflected in the presentence report. The second,
a web page entitled, "Additional Drugs of Abuse Reported by Crimi-
nal Intelligence Division, Maryland Department of State Police,"
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released by the National Institute on Drug Abuse, J.A. 144-51,
reported that ecstasy costs between $25-45 a pill, but appeared to base
this estimate on data collected by Maryland state police from 1992-
94. The $20 per pill figure used by the district court falls outside the
$25-45 range suggested by this report, but this proves little about the
accuracy or reliability of either figure. In fact, it suggests, if anything,
that the price of ecstasy declined between 1992-94, when the data
relied upon by the report was collected, and October 2001, the date
of Kiulin’s arrest.
In light of Kiulin’s failure to produce any evidence to suggest that
the $20 per pill amount was unreliable, we believe that it was far from
clear error for the district court to accept the presentence report’s
price of $20 per pill. Not only did this estimated price fall within the
price range for ecstasy set forth in the more recent (and relevant)
report submitted to the district court by Kiulin himself, it was also
based on more current, and specialized, knowledge of the likely price
of ecstasy than any source relied upon by Kiulin. We therefore affirm
the district court’s calculation of drug quantity.
IV.
Kiulin also challenges the inclusion of information in paragraphs
10, 15 and 16 of the presentence report, related to his frequent inter-
national travels in the year preceding his arrest and to two reports pre-
pared by the United States Customs Service implicating him in
potentially criminal activity. He cites no legal authority for this chal-
lenge, however, and our review suggests that there is none.
The inclusion of information about the defendant in the presen-
tence report, even information not directly related to his commission
of the instant offense, is clearly permitted by statute. 18 U.S.C.
§ 3661 expressly provides that,
No limitation shall be placed on the information concerning
the background, character and conduct of a person convicted
of an offense which a court of the United States may receive
and consider for the purpose of imposing an appropriate
sentence.
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The information also did not have an impermissible effect on Kiulin’s
sentence. The district court did not rely on any of this information to
support the calculation of Kiulin’s offense level, J.A. 112, or his crim-
inal history category, J.A. 105-06. And, even accepting that the infor-
mation affected the district court’s determination of a particular
sentence within the guidelines range, Kiulin may not challenge it on
appeal. See United States v. Porter, 909 F.2d 789, 794 (4th Cir.
1990).
V.
Kiulin’s final argument is that the district court erred by refusing
to find that he was a minor participant under U.S.S.G. § 3B1.2(b). A
district court’s assessment of the level of a defendant’s involvement
in any particular offense is a factual finding, which, again, we review
for clear error. See United States v. Daughtrey, 874 F.2d 213, 218
(4th Cir. 1989).
Although Kiulin argues that he was a "mere courier" of the drugs
and money and unaware of the precise nature of the substance
involved in his crime, see U.S.S.G. § 3B1.2 comment. 3(A) (provid-
ing that a defendant whose role in an offense is limited to "transport-
ing . . . drugs . . . is not precluded from consideration for an
adjustment under this guideline"), the evidence before the district
court provided ample support for its conclusion to the contrary. Kiulin
agreed to transport a substantial amount of ecstasy from the Canadian
border to south Florida. He traveled across state lines to rent a car for
that purpose, and recruited Cetera to participate in the transportation
of the drugs with him. Moreover, according to Kiulin’s fellow
inmates at the Robeson County Jail, Kiulin bragged that he and Cetera
often engaged in such trips and had been paid well for their efforts.
Thus, the district court’s conclusion that Kiulin was not a minor par-
ticipant in the distribution of ecstasy was well founded.
CONCLUSION
For the reasons stated herein, the judgment of the district court is
affirmed in all respects.
AFFIRMED
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