[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11395 ELEVENTH CIRCUIT
FEBRUARY 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 08-00320-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARIUS PETTWAY, SR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 3, 2010)
Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Darius Pettway appeals his concurrent sentences of 240 and 262-months’
imprisonment, imposed following a jury verdict finding him guilty on multiple
counts of possession with intent to distribute crack cocaine, in violation of 21
U.S.C. § 841(a)(1).
I. Due Process
On appeal, Pettway argues that the government should have provided him
notice prior to sentencing that one of its witnesses would testify at sentencing that
he had bought crack cocaine from Pettway for a longer period of time than he had
indicated during his trial testimony. Pettway contends that the government’s
failure to provide this information that was favorable to him, unavailable to his
counsel, relevant to his punishment, and that could undermine his sentence violated
his due process rights as recognized in Brady v. Maryland, 373 U.S. 83 (1963)1 and
Giglio v. United States, 405 U.S. 150 (1972).2 Specifically, Pettway contends that
1
In Brady, the Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373
U.S. at 87. In order to establish a Brady claim, a defendant must show that: (1) the government
possessed evidence favorable to the defendant, including impeachment evidence; (2) the
defendant did not possess the evidence, nor could he obtain it himself with any reasonable
diligence; (3) the government suppressed the favorable evidence; and (4) had the evidence been
disclosed to the defense, a reasonable probability exists that the outcome of the proceedings
would have been different. United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001).
2
In Giglio, the Supreme Court held that “deliberate deception of a court and jurors by
the presentation of known false evidence is incompatible with” due process. 405 U.S. at 153. A
Giglio error requires that (1) the prosecutor knowingly used false testimony or failed to correct
false testimony on discovery, and (2) there is “any reasonable likelihood that the false testimony
could have affected the judgment.” Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir. 2006)
(quotations and ellipsis omitted).
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the witness’s trial testimony that he used crack cocaine for about two years and
knew Pettway for about three years was materially different from his sentencing
testimony that he had been using and buying crack cocaine from Pettway for nearly
six years and that the government’s failure to disclose this information to the
defense precluded him from impeaching this witness. Because Pettway did not
raise a challenge to his sentence based on either Brady or Giglio with the
sentencing court, our review is for plain error. United States v. Rodriguez, 398
F.3d 1291, 1297-98 (11th Cir. 2005).3
After reviewing the parties’ briefs and the record in this case, we conclude
that the government did not commit a Brady violation because it did not possess
any evidence favorable to Pettway that was unavailable to him. Pettway was
represented by the same counsel at the guilt and sentencing phases of his trial.
Thus, the witness’s trial testimony was available to Pettway and once the witness
testified differently at sentencing Pettway had all of the information he needed to
impeach the witness. Moreover, Brady requires that the suppressed evidence bear
on the outcome of the proceeding. See Hansen, 262 F.3d at 1234. In regard to the
witness’s testimony, the sentencing court stated that even if the witness’s estimate
3
To prove plain error, a defendant must show: (1) error, (2) that is plain, and (3) that
affects substantial rights. Rodriguez, 398 F.3d at 1298. If all three conditions are met, we will
exercise discretion to recognize the error, if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
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of the amount of drugs he bought from Pettway was “somewhat incorrect,” the
court was comfortable that he bought enough to reach the 150 grams necessary for
the sentence imposed.
Further, the government did not commit a Giglio error because Pettway did
not establish that the government knowingly presented materially false testimony
that had a reasonable likelihood of affecting the judgment. Other than the
discrepancy in the witness’s testimony, Pettway presented no evidence that the
government knowingly solicited false testimony.
Accordingly, the district court did not plainly err in sentencing Pettway to
262 months’ imprisonment.
II. Guideline Calculation
Pettway argues that the district court’s drug quantity determination was
clearly erroneous, resulting in an inaccurate guideline range. He argues that the
district court based its determination on incredible and deficient witness testimony
at trial and sentencing.
A district court’s determination of drug quantity used to establish a
defendant’s base offense level under the Sentencing Guidelines is reviewed for
clear error. United States v. Lawrence, 47 F.3d 1559, 1565 (11th Cir. 1995).
When the defendant objects to the base offense level, the government must
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establish the quantity of drugs by a preponderance of the evidence. Id. at 1566.
Where the district court’s decision on drug-quantity attribution is based on
testimony of witnesses who appear before the court, great deference is given to its
assessment of the credibility and evidentiary content of that testimony. United
States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995). Further, the Sentencing
Guidelines provide that “in an offense involving an agreement to sell a controlled
substance, the agreed-upon quantity of the controlled substance shall be used to
determine the offense level unless the sale is completed and the amount delivered
more accurately reflects the scale of the offense.” U.S.S.G. § 2D1.1, comment
(n.12).
The district court based its total drug calculation of at least 150 grams of
crack cocaine on the testimony of witnesses who established that Pettway
negotiated a controlled buy with undercover police officers for 112 grams of crack
cocaine and sold at least another 38 grams to others. Lee, 68 F.3d at 1276.
Further, the district court gave specific reasons for finding that the government
proved by a preponderance of the evidence that Pettway was responsible for the
150 grams of crack cocaine necessary to justify his advisory guideline range.
Lawrence, 47 F.3d at 1566-69.
AFFIRMED.
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