In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1903
United States of America,
Plaintiff-Appellee,
v.
Antwone D. Smith,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 00 CR 114--Rudy Lozano, Judge.
Argued September 28, 2001--Decided February 14, 2002
Before Posner, Easterbrook, and Kanne,
Circuit Judges.
Kanne, Circuit Judge. Defendant Antwone
D. Smith was convicted of possessing
cocaine base ("crack") with the intent to
distribute, in violation of 21 U.S.C.
sec. 841(a)(1). At sentencing, Smith
received a two-level sentencing
enhancement for possessing a firearm
during the commission of a drug offense,
pursuant to United States Sentencing
Guideline sec. 2D1.1(b)(1). Smith appeals
the application of this sentencing
enhancement. We affirm.
I. History
On June 28, 2000, Detectives Gerald
Pointer and Troy Campbell of the Gary,
Indiana Police Department arranged a
controlled drug purchase with a
confidential informant. The detectives
provided the confidential informant with
twenty dollars and sent him into a house
at 1916 Williams Street in Gary in order
to purchase crack. Under the surveillance
of the detectives, the informant went
into the house for about two minutes and
returned with 0.22 grams of crack. On
July 3, 2000, the detectives again
provided the same informant with twenty
dollars; the informant entered the same
house; and the informant returned with
0.2 grams of crack. As a result of these
two controlled purchases, Gary police
officers obtained a search warrant and on
July 6, 2000, searched the house at 1916
Williams Street. The police found Smith
and other people in the house along with
approximately 3.7 grams of cocaine and
7.3 grams of marijuana. The police did
not find any guns in the house nor in the
possession of any of the people present
in the house.
Smith was charged in Count I of the
government’s superceding indictment with
possession with the intent to distribute
crack, in violation of 18 U.S.C. sec.
841(a)(1). A jury found Smith guilty of
that charge. The Pre-Sentence
Investigation Report ("PSR") determined
Smith’s offense level to be fourteen,
based on the amount of drugs found at the
house and the amount of drugs sold during
the first controlled purchase. The PSR
added two levels for obstruction of
justice pursuant to Sentencing Guideline
sec. 3C.1. The report also added an
additional two levels for possessing a
firearm in relation to drug trafficking
activity pursuant to Sentencing Guideline
sec. 2D.1(b)(1) ("gun enhancement").
Thus, the PSR calculated a total offense
level of eighteen.
At the sentencing hearing, the
government called Detective Pointer to
testify in support of the gun
enhancement. Detective Pointer testified
that on June 28, 2000, he provided the
confidential informant with cash and
instructed him to go into the house at
1916 Williams Street to purchase drugs.
He testified that the informant went into
the house and returned moments later with
0.22 grams of crack. Detective Pointer
further stated that immediately upon
returning, the informant told him that a
male in the house had pointed a gun at
him and said, "I’m going to lay you
down." Detective Pointer testified that
approximately ten days after June 28, he
interviewed the informant, and that the
informant identified Smith in a photo
line-up. Detective Pointer testified that
the informant pointed to Smith and stated
that Smith was the individual from whom
he had purchased crack and who had
pointed a gun at him on June 28.
Detective Pointer also provided the
following information about the
informant. Prior to June 28, Detective
Pointer saw the informant exit the house
at 1916 Williams Street. Detective
Pointer apprehended the informant and
found drugs on him. Instead of arresting
the informant, Detective Pointer decided
to use him for a controlled purchase. The
June 28 controlled purchase was the first
time that the informant had worked with
Detective Pointer. Detective Pointer also
used the informant to make a controlled
purchase at 1916 Williams Street on July
3, 2000./1 Finally, Detective Pointer
stated that the informant’s assistance on
the June 28 and July 3 controlled
purchases provided the basis for
obtaining a search warrant for 1916
Williams Street.
The district court applied Sentencing
Guideline sec. 2D.1(b)(1) over Smith’s
objection that the informant was not
reliable. In finding that the Guideline
applied, the district court found that
Detective Pointer’s testimony pertaining
to the informant’s statement was reliable
for three reasons. First, it noted that
guns are commonly used in conjunction
with drug transactions. Second, it noted
that the informant told Detective Pointer
about Smith’s purported use of the gun
immediately after he left the house at
1916 Williams Street. Finally, it noted
that during the guilt phase, Mkiyah
Goodlow, the tenant of the house,
testified that she saw Smith in the house
a couple of times and that she often saw
guns in the house.
The district court then sentenced Smith
to 45 months imprisonment. The
application of the gun enhancement is the
sole issue on appeal.
II. Analysis
We review a district court’s application
of a sentencing enhancement pursuant to
the Sentencing Guidelines for clear
error. See United States v. Berthiaume,
233 F.3d 1000, 1002 (7th Cir. 2000). We
will reverse only if we are left with the
firm and definite conviction that the
district court erred in applying the
enhancement. See United States v.
Galbraith, 200 F.3d 1006, 1011 (7th Cir.
2000). Further, we give special deference
to findings based upon credibility
determinations, which "can virtually
never be clear error." United States v.
Hickok, 77 F.3d 992, 1007 (7th Cir. 1996)
(quotation omitted).
In this case, the district court applied
Sentencing Guideline sec. 2D.1(b)(1),
which provides: "If a dangerous weapon
(including a firearm) was possessed,
increase [the offense level] by 2
levels." U.S.S.G. sec. 2D.1(b)(1). For
this Guideline to apply, the government
needed to show by a preponderance of the
evidence that Smith "possessed the
firearm during the offense that led to
the conviction, or during relevant
conduct." United States v. Berkey, 161
F.3d 1099, 1102 (7th Cir. 1998). The
government’s proof with respect to this
issue consisted solely of the testimony
of Detective Pointer, who testified that
immediately after completing the June 28
controlled purchase, the informant told
him that Smith pointed a gun at him and
threatened him. While it is true that
Detective Pointer’s testimony was
hearsay, the Federal Rules of Evidence do
not apply at sentencing hearings, and "a
sentencing judge is free to consider a
wide variety of information that would be
inadmissible at trial, including
hearsay." United States v. Barnes, 117
F.3d 328, 337 (7th Cir. 1997) (quotation
omitted). All that is required is that
the information bear "sufficient indicia
of reliability to support its probable
accuracy." United States v. Morrison, 207
F.3d 962, 967 (7th Cir. 2000). We review
a district court’s determination as to
the reliability of hearsay sentencing
evidence for an abuse of discretion. See
Barnes, 117 F.3d at 337.
The district court did not abuse its
discretion in finding that Detective
Pointer’s testimony relaying the
informant’s statement bore sufficient
indicia of reliability. First, the timing
of the informant’s statement to Detective
Pointer supports the statement’s
reliability. See United States v.
Johnson, 227 F.3d 807, 815 (7th Cir.
2000). In that case, the district court
applied a sentencing enhancement for
obstruction of justice based partly on an
informant’s statement to a DEA agent that
the defendant had threatened him while
they were both in jail. See id. We
affirmed the enhancement and held that
the fact that the informant told the DEA
agent about the threat immediately upon
being released from jail supported its
reliability. See id. As in Johnson, the
reliability of the informant’s statement
in this case is supported by the fact
that he made it immediately upon exiting
the house.
Further, the informant’s statement that
Smith possessed a gun on June 28 was
consistent with his other statements to
Detective Pointer and with the rest of
the evidence in the case. See United
States v. Westmoreland, 240 F.3d 618, 630
n.4 (7th Cir. 2001) (finding informant’s
statements reliable where they "were
generally consistent, both internally and
with the remainder of the evidence"). For
example, Goodlow testified that on
several occasions, she saw Smith in the
house at 1916 Williams Street. She also
testified that she often saw guns in the
house.
Smith argues that the district court
erred in applying the gun enhancement
because its "determination was based
solely on the uncorroborated, out of
court statement of an unidentified,
confidential informant." Smith’s argument
misstates the law, as we have held that
uncorroborated hearsay may be the basis
for sentencing under the Sentencing
Guidelines in certain cases. See, e.g.,
Berthiaume, 233 F.3d at 1003; United
States v. Atkin, 29 F.3d 267, 268-69 (7th
Cir. 1994).
In Berthiaume, the district court
sentenced the defendant under Sentencing
Guideline sec. 2D.1(c)(3), which
calculates the sentence based on the
amount of drugs attributable to the
defendant. 233 F.3d at 1002. The district
court found by a preponderance of the
evidence that the amount of drugs
attributable to the defendant was 3,735
grams of methamphetamine. See id. We
affirmed this calculation where the
district court attributed 1,020 grams of
methamphetamine to the defendant based
solely on a law enforcement agent’s
testimony about what an informant told
him. See id. at 1003. The law enforcement
agent testified that an informant told
him that he had purchased approximately
1,020 grams of methamphetamine from the
defendant over a nine-month period. See
id. We held that "[a]lthough [the
informant’s] statement was
uncorroborated, at sentencing, the trial
court is entitled to credit testimony
that is totally uncorroborated and comes
from an admitted liar, convicted felon,
or a large scale drug-dealing, paid
government informant." Id. (quotation
omitted).
The informant’s statement in our case
bears at least as many indicia of
reliability as the informant’s statement
in Berthiaume. First, in the present
case, Goodlow’s testimony supported the
informant’s statement. Next, the
informant in our case told Detective
Pointer that Smith had a gun immediately
after leaving the house. There is no
indication about when the informant in
Berthiaume told the law enforcement agent
about his drug transactions with the
defendant; and the reliability of those
statements depended much more on the
memory of the informant, as they
concerned drug transactions that occurred
over a nine-month period. Therefore, as
in Berthiaume, the district court did not
abuse its discretion in finding that the
hearsay testimony was reliable.
Finally, Smith’s argument that the gun
enhancement was based on unreliable
evidence because the police did not find
any weapons on his person or at the house
when they arrested him is a red herring.
At issue is whether he possessed a gun
during the relevant conduct of the
offense, not whether he possessed a gun
when he was arrested. See Berkey, 161
F.3d at 1102. Therefore, the gun
enhancement was proper if Smith possessed
a gun on June 28, regardless of whether
he possessed a gun on July 6, the day of
his arrest.
III. Conclusion
For the foregoing reasons, we AFFIRM.
FOOTNOTE
/1 On July 3, 2000, Smith was incarcerated on an
unrelated matter, and therefore, was not at 1916
Williams Street during the second controlled
purchase.