Admission of a federal agent’s testimony about recorded jail calls; FRE 702; United States v Glenn; Plain error review; Admission of a video of a controlled drug buy; The Confrontation Clause; Whether any of the statements in the video were hearsay; FRE 801(d)(2) & (c)(2); Sentencing; Procedural reasonableness; Reliance on acquitted conduct; USSG § 1B1.3(c); “Overlapping conduct”; § 1B1.3 cmt n 10

The court held that defendant-Barber failed to show plain error in a federal agent’s testimony about her recorded jail calls, and that the admission of a video of a controlled buy did not violate the Confrontation Clause. Finally, her sentence was not procedurally unreasonable because the district court considered “overlapping conduct” in calculating the amount of drugs attributable to her. She was convicted of drug conspiracy, distribution, and possession counts and of using a phone to facilitate a drug felony. The district court calculated “a Guidelines range of 262 to 327 months” and sentenced her to 150 months. On appeal, the court first concluded that “the agent was qualified to translate the coded language in Barber’s calls” and that he “properly applied his experience to explain the slang used in” them. While some of his testimony was “a closer call[,]” because Barber failed to object, the court did not “know for sure whether the agent was merely interpreting ordinary English or applying his specialized knowledge. That means any errors in admitting this testimony aren’t clear or obvious.” Further, even if they were, “they still wouldn’t warrant reversal because they didn’t affect Barber’s substantial rights.” As to the video, because it “didn’t include any hearsay, its admission didn’t violate the Confrontation Clause.” As to sentencing, Barber noted “the jury found that her crimes involved lower amounts than those charged[.]” She argued that the district court’s use of the higher drug quantities in the PSR to calculate her Guidelines range constituted improper reliance on acquitted conduct. The court concluded that even if it was, she “still wouldn’t be entitled to resentencing.” The Guidelines allow “district courts to consider conduct that ‘also establishes, in whole or in part, the instant offense of conviction’” – overlapping conduct. The jury convicted her of distributing meth “and conspiring to possess with intent to distribute” meth, heroin, cocaine, and fentanyl. So even if it “acquitted her of the aggravated charges involving the higher drug quantities, the same drugs underlying those greater offenses ‘establish[], in whole or in part,’ the lesser-included offenses of conviction.” As a result, “§ 1B1.3(c) didn’t bar the district court from considering the higher drug amounts.” Affirmed.