UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-8554
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SCOTT LEE YOUNG,
Defendant-Appellant.
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_________________________
No. 91-8555
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONALD CHARLES ALLMAN,
Defendant-Appellant.
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No. 91-8556
________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL ALLEN CROW,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
______________________________________________
(December 28, 1992)
Before JONES, BARKSDALE, Circuit Judges, and JUSTICE, District
Judge.1
BARKSDALE, Circuit Judge:
Scott Lee Young, and Donald Charles Allman pleaded guilty to
conspiring to possess methamphetamine and amphetamine with intent
to distribute. Allman also pleaded guilty to possessing
amphetamine with intent to distribute. Michael Allen Crow pleaded
guilty only to possessing amphetamine with intent to distribute.
Their presentence reports (PSR) recommended that they be
accountable for the distribution of several kilograms of
methamphetamine -- Young, 7.8; Crow and Allman, 3.41 and 3.46
respectively. Subsequent to a sentencing hearing, the district
court concluded that the information in the PSRs was reliable, but
found each defendant accountable for only roughly half the amount
of methamphetamine recommended by the PSR. Finding no reversible
error, we AFFIRM.
I.
On August 4, 1990, the Waco police executed a search warrant at
a trailer, which was the residence of Allman and Crow. Probable
cause for the search was based on surveillance of the trailer, as
well as information received by the police that Allman, Young, and
others were dealing amphetamine and/or methamphetamine out of it.
The search uncovered 1.01 grams of amphetamine, baggies, scoops,
triple-beam scales, what appeared to be ledger books reflecting
narcotics transactions, and other notes and papers. Crow was
1
District Judge of the Eastern District of Texas, sitting by
designation.
arrested and charged with possession of amphetamine2; he was
released two days later. Allman and Young remained at large.
Subsequent to the August 4 search, officers continued to receive
information regarding the distribution of methamphetamine and/or
amphetamine by Young, Allman, and Crow. Specifically, they were
told that on January 20, 1991, Young and Allman would be returning
to Waco, Texas, from Fort Worth via I-35 with methamphetamine
and/or amphetamine; their vehicle was described as a white
Chevrolet Monte Carlo, Texas License number 148LMW. Based upon
this information, the Waco police established surveillance along
the interstate. When the officers spotted the vehicle on January
20, they followed it as it exited the highway for a brief stop at
an unknown residence, and then continued to a convenience store.
The officers approached the men outside the store; Young attempted
to flee, but was apprehended; Allman was also apprehended.
The officers' search of Allman uncovered a baby food jar
containing methamphetamine. The officers also searched the
surrounding area where they had observed Young dropping objects
from his pockets as he fled. This search uncovered several plastic
bags containing methamphetamine, and a baby food jar containing
methamphetamine. The vehicle was inventoried, and more containers
of methamphetamine, methamphetamine oil, and other paraphernalia
were recovered. The total amount of methamphetamine seized from
Young and Allman on January 20 was 64.05 grams.
Crow, Young, and Allman were indicted for conspiring to possess
2
During the execution of the search, Allman escaped.
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methamphetamine and amphetamine with intent to distribute (Count
1); Allman was also charged with possessing amphetamine with intent
to distribute (Count 2). Young and Allman pleaded guilty as
charged. Pursuant to a plea bargain, Crow pleaded guilty to a
superseding information, charging him only with possessing
amphetamine with intent to distribute.
The PSRs recommended that Crow and Allman be held accountable for
3.41 and 3.46 kilograms of methamphetamine respectively; Young, 7.8
kilograms of methamphetamine. These amounts were based on
confidential informant (CI) information, which indicated that Young
transported at least 6 ounces of methamphetamine two times per week
(total 12 ounces per week) for four months prior to his January
1991 arrest. According to the CI, Crow and Allman each received
from Young no less than six ounces of methamphetamine per week,
which they packaged and distributed in Waco.
In September 1991, the district court conducted a sentencing
hearing, in which the government presented its CI information
through the testimony of two narcotics agents as well as
corroborating evidence. At the conclusion of the hearing, the
court determined that the CI information was reliable and therefore
accepted the amounts set forth in the PSRs. However, based upon a
concern for potential exaggeration, the court halved the amounts
for each defendant, resulting in a guideline sentencing range for
Young of 135-168 months; for Crow, 151-188 months; and for Allman,
108-135 months. The sentences included imprisonment of 160 months
for Young, 170 for Crow, and 120 for Allman.
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II.
A.
Young contends that the district court abused its discretion in
denying his request to withdraw his guilty plea. There is no
absolute right to do so. United States v. Badger, 925 F.2d 101,
103 (5th Cir. 1991). Fed. R. Crim. P. 32(d) conditions the right
to so withdraw before sentencing upon the showing of "any fair and
just reason". But, we reverse a denial of the motion "only for
abuse of discretion". Id. at 103.
Young reasserts that the prosecutor misled him into believing
that he would only receive a 77 to 96 month sentence, based on the
consideration of 64 grams of methamphetamine, and therefore his
plea was involuntary. On the day of his sentencing hearing, Young
asked to withdraw his plea, stating in support that the prosecutor
misinformed him as to its consequences. The court denied the
request on the basis of Young's express understanding in open court
at the time of his plea that his guideline range could not be
predicted, that it was "directly related to the amount [of
controlled substance] involved".3
"For a plea to be knowing and voluntary, `the defendant must be
advised of and understand the consequences of the [guilty] plea,'"
United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992)
(quoting United States v. Pearson, 910 F.2d 221, 223 (5th Cir.
3
At the plea hearing, the court advised Young, inter alia,
that his sentence under the guidelines could not be predicted, that
"the amount of controlled substance involved has a direct bearing."
Young stated that he understood this.
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1990), cert. denied, ___ U.S. ___, 111 S. Ct. 977 (1991)). This
includes knowing "the maximum prison term and fine for the offense
charged". Id. at 1012 (quoting United States v. Rivera, 898 F.2d
442, 447 (5th Cir. 1990)).4
Young was fully aware of his potential prison term and fine.
Prior to accepting the plea, the court informed Young that each
count carried a maximum of 20 years imprisonment, three years of
supervised release, and up to a $1,000,000 fine. He received a
sentence of thirteen years and four months, three years supervised
release, and a $2,000 fine. Accordingly, we conclude that he was
aware of the consequences of his plea and, therefore, reject his
voluntariness contention. See Gaitan, 954 F.2d at 1012.5
Although the district court disposed of Young's motion on the
voluntariness issue, its ruling is buttressed by other relevant
factors.6 Young did not assert his innocence, nor did he express
4
This court stated in Rivera, 898 F.2d at 447, that "[a]s
long as the [defendant] `understood the length of time he might
possibly receive, he was fully aware of his plea's consequences'".
5
Of course, we also take note of the fact that Young stated
in open court at his plea hearing (1) that his plea was voluntary;
(2) that he was not forced, threatened, or coerced, in any way,
into pleading guilty; (3) that, as discussed, he understood that
his punishment range could not be accurately predicted because the
amount of drugs involved was a matter in dispute; and (4) that he
had not received any prediction, prophesy, or promise as to the
terms of his sentence. "The defendant's declaration in open court
that his plea is not the product of threats or coercion carries a
strong presumption of veracity." United States v. Clark, 931 F.2d
292, 295 (5th Cir. 1991) (quoting United States v. Darling, 766
F.2d 1095 (7th Cir.), cert. denied, 474 U.S. 1024 (1985)). Young
does not rebut this presumption.
6
Seven factors set forth in United States v. Carr, 740 F.2d
339, 343-44 (5th Cir. 1984), cert. denied, 471 U.S. 1004 (1985),
guide the district court's disposition of a motion for withdrawal:
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dissatisfaction with his attorney. He delayed filing his motion
until the day of sentencing, three months after his plea. "The
burden of establishing a fair and just reason for withdrawing a
guilty plea remains at all times on the defendant." Badger, 925
F.2d at 104. Young has failed to meet his burden; the district
court did not abuse its discretion in denying the motion.
B.
Appellants contend that the district court erred in the
calculation of their sentences by relying on uncorroborated double
and triple hearsay statements derived from CIs. They object
particularly to reliance on CI #1, who reported to officer Moore
that Young transported approximately 12 ounces of methamphetamine
and/or amphetamine per week over a period of four to five months
and distributed two to three baby food jars of the substance, each
containing approximately one ounce, to Crow and Allman. The
probation officer and district court relied on the statements of CI
#1 as reported through Moore.
"A district court's findings about the quantity of drugs
implicated by the crime are factual findings reviewed under the
`clearly erroneous' standard." United States v. Rivera, 898 F.2d
(1) whether the defendant has asserted his innocence; (2) whether
withdrawal would prejudice the Government; (3) whether the
defendant delayed in filing the motion and, if so, the reason for
the delay; (4) whether withdrawal would substantially inconvenience
the court; (5) whether adequate assistance of counsel was available
to the defendant; (6) whether his plea was knowing and voluntary;
and (7) whether withdrawal would waste judicial resources.
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442, 445 (5th Cir. 1990).7 In our review, we take into account the
district court's "wide discretion in the kind and source of
information [it] considers in imposing sentence". United States v.
Garcia, 693 F.2d 412, 416 (5th Cir. 1982). For sentencing
purposes, the district court may consider any relevant evidence
"without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy." U.S.S.G.
§ 6A1.3. Obviously, the district court has significant discretion
in evaluating reliability. United States v. Kinder, 946 F.2d 362,
366 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1677
(1992).
When calculating the quantity of drugs upon which to base a
sentence, "[q]uantities of drugs, not specified in the indictment,
if part of the same scheme, course of conduct, or plan, may be
used to determine the base offense level". United States v.
Montes, 976 F.2d 235, 240 (5th Cir. 1992) (citing U.S.S.G. §
1B1.3). "In making this determination, the district court may rely
on the information presented in the presentence investigation
report so long as the information has `some minimum indicium of
reliability' .... The defendant bears the burden of demonstrating
7
We adhere, of course, to the limitations set forth in
Anderson v. City of Bessemer City, 470 U.S. 564, 565 (1985):
If the district court's account of the evidence is
plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.
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that information the district court relied on in sentencing is
`materially untrue.'" United States v. Vela, 927 F.2d 197, 201
(5th Cir.) (internal quotations omitted), cert. denied, ___ U.S.
___, 112 S. Ct. 214 (1991).
At the sentencing hearing, two officers testified about their
lengthy investigation of appellants, and the CI statements. They
vouched for the reliability of the CIs, stating that each had been
instrumental in obtaining convictions in the past, and that the CIs
reported drug dealing on the part of all three appellants in
conjunction with one another.8
The officers corroborated the CI statements with evidence
obtained from their own investigation. Officer Herwald arranged
"buys", which involved the sale of amphetamine by Crow to an
informant. Tips from CIs resulted in the August 4 search of the
trailer, during which Crow was arrested and Allman escaped. From
this search, the officers recovered amphetamine, drug
8
The information provided by CI #1 is stated supra.
CI #2 provided information prior to the August 4 search. He
stated that Crow sold methamphetamine or amphetamine daily, and
that Crow was said to have boasted that he earned $300 in 30
minutes. He estimated that Crow sold about one ounce in a week's
time.
CI #3 stated that he witnessed Crow sell one ounce of
methamphetamine or amphetamine out of the trailer prior to the
August 4 search and that Crow was obtaining his amphetamine or
methamphetamine from Young or Allman.
CI #4 provided the same information as CI #1, except #4 did not
specify amounts.
CIs #5 and #6 stated, prior to the August 4 search of the
trailer, that Young and Allman were dealing narcotics out of the
trailer.
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paraphernalia, including bags, scales, and scoops, and they also
recovered ledgers and other notations that indicated drug dealing.
Information from CI #1 and CI #4 resulted in the January 20 seizure
of Allman and Young. Informants accurately described the car, the
license plate, the route, and the fact that the men would be
transporting drugs in baby jars. The evidence obtained from the
January 20 seizure provided further indication of drug dealing;
they recovered baby jars of methamphetamine, filters, a knife and
clothing that both contained an odor related to methamphetamine
manufacturing, and miscellaneous paraphernalia.
The court gave each appellant the opportunity to present rebuttal
evidence; only Crow did so. He tangentially attempted to rebut the
officers' testimony regarding the amount of drugs at issue by
presenting witnesses who testified to his financial situation and
work experience, and introduced into evidence an exculpatory letter
written by Young.
The district court carefully evaluated the testimony and other
evidence and determined that the information that provided the
basis for the PSR recommendations was reliable.9 Accordingly, the
district court, like the probation officer, based his sentencing
determination concerning amounts on the statements by CI #1.
However, taking into account uncertainty and the possibility of
9
It stated that "the information from the [CIs] ...
concerning the transportation of controlled substances from Fort
Worth to Waco is certainly corroborated by the other informants, by
the physical evidence, [and] by [] all aspects of the lengthy
investigation engaged in by the Police Department in this case and
is sufficiently reliable."
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exaggeration, he found appellants responsible for the
transportation of only ten ounces, twice a week for four months,
and, in addition, he halved that amount. This finding is not
clearly erroneous.
C.
1.
Appellants contend, on two bases, that it was error for the court
to rely on information from CIs; first, because the government
failed to establish good cause for their nondisclosure. They refer
to the commentary to U.S.S.G. § 6A1.3 (quoting United States v.
Fatico, 579 F.2d 707 (2d Cir. 1978)), which provides that "[o]ut-
of-court declarations by an unidentified informant may be
considered `where there is good cause for the nondisclosure of his
identity and there is sufficient corroboration by other means.'"
In addition, Crow contends that the district court erred in
summarily overruling his attempt to show the inapplicability of the
government's withholding disclosure and in denying his pre-plea
motions for discovery and inspection.
Although clearly on notice through the PSRs that the government
was relying on CIs, appellants did not object to the government's
failure to show good cause for nondisclosure. Only Crow made an
attempt to discover their identities. He submitted a disclosure
request in April 1991 as part of a motion for discovery and
inspection, but his guilty plea in June 1991 rendered this pre-
trial motion moot. See Fed. R. Crim. P. 12(f); Barrientos v.
United States, 668 F.2d 838, 842 (5th Cir. 1982). He did not renew
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his request at the Rule 11 hearing held in June; he did not request
disclosure in his objections to the PSR filed in July 1991; and he
did not submit a request to the district court in the two month
interim between the filing of his PSR objections and his sentencing
hearing in September.10 It was only after the government had begun
10
Crow also had the opportunity to object to nondisclosure at
the beginning of the sentencing hearing. Before the government
proceeded with its first witness, the following exchange occurred:
THE COURT: I believe there are objections that might apply
to each of these Defendants, particularly the amount of
controlled substance that would constitute the appropriate
relevant conduct. So I think it might save us all time if
we heard the evidence together and would suggest that the
Government present whatever witnesses it desires to
confront any objections that have been filed. And then
we'll allow all three attorneys to cross-examine the
witnesses to the extent they wish.
MR. FRAZIER: Yes, sir, Judge. We're ready to proceed.
* * *
THE COURT: So we'll have a clear understanding, what
common objections do we have, Mr. Frazier, --
MR. FRAZIER: Your Honor, --
THE COURT: ... We -- we are concerned with the amount of
controlled substance that would constitute relevant
conduct. Are there other matters that are common or -- or
that we would have witnesses testifying about?
MR. FRAZIER [United States Attorney]: The only -- the
only witnesses the Government has prepared to present are
on the offense level. There are other objections, but I
don't believe there are any that cross the same lines as to
each three, and they're legal objections as to the
Guidelines only, --
THE COURT: All right.
MR. FRAZIER: -- I think. Is that correct, Counsel?
MR. MOODY [Allman's counsel]: Y o u r Honor, I have an
objection to the failure to grant the two point reduction
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to present testimony that Crow objected and asked that the
identities of the CIs be disclosed and that they be brought to the
courtroom for cross-examination. (Even then, he based his objection
only on the claim that the CIs lost their confidential status by
sharing information with persons other than the officers, not on
the government failing to show good cause for nondisclosure; as
discussed in note 12, infra, he discussed § 6A1.3 in closing
argument, but did not contend that any burden of proof was on the
government.) At that point, it was simply too late in the day to
expect the district court to seriously consider his request.
Appellants contend, however, that the burden was on the
government to show good cause for nondisclosure, and that,
therefore, they were not required to object to the government's
claimed failure to do so. Even assuming, without deciding, that
the government did have such a burden, appellants were still
required, of course, to timely object in order to preserve this
issue for appeal. United States v. Vontsteen, 950 F.2d 1086, 1089-
for acceptance of responsibility. Otherwise, the only
objection --
THE COURT: Sure.
MR. MOODY: -- we have is to the amount of the --
THE COURT: But as far as the witnesses, we're
going to be dealing with the relevant conduct --
MR. MOODY: -- controlled substance.
THE COURT: -- and the amount involved?
MR. MOODY: That's all.
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90 (5th Cir. 1992) (en banc). Accordingly, we review only for
plain error. See United States v. Lopez, 923 F.2d 47, 50 (5th
Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 2032 (1991).
"Plain error" is error "so obvious and substantial that failure
to notice and correct it would affect the fairness, integrity or
public reputation of [the] judicial proceedings." Id. We will not
find plain error in the failure to adequately justify nondisclosure
of CIs unless it is clear from the record that this rendered the
sentencing process wholly unreliable.
Here, the officers testified in support of the reliability of the
CIs. The defendants were given the opportunity to cross-examine
these officers and present evidence of their own regarding the
falsity of the information conveyed by the CIs. In addition, the
government corroborated the CIs' statements. Therefore, we
conclude that the refusal to disclose the identity of the CIs did
not render the sentencing process wholly unreliable and therefore
do not find plain error.
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2.
Appellants also contend that the reliance on the statements of
unidentified CIs denied them both their right to confront witnesses
and due process. Again, they did not object to the evidence on
constitutional grounds; however, even if properly raised in the
district court, these contentions have no merit.11
Hearsay is admissible for sentencing purposes, including
corroborated out-of-court statements by unidentified CIs, and thus
its admission does not violate due process or the right to
confrontation. At sentencing, due process merely requires that
information relied on in determining an appropriate sentence have
"some minimal indicium of reliability" and "bear some rational
relationship to the decision to impose a particular sentence."
United States v. Galvan, 949 F.2d 777, 784 (5th Cir. 1991). We
held, supra, that those requirements are met.
Concerning the right to confrontation, it is more than well-
established that, "a defendant's confrontation rights at a
sentencing hearing are severely restricted." United States v.
Rodriguez, 897 F.2d 1324, 1328 (5th Cir.), cert. denied, ___ U.S.
11
As stated, Allman and Young did not object to the
nondisclosure. And, as noted, Crow's primary objection at the
sentencing hearing was based on his unsupported assertion that the
government's informants may have waived their right to remain
confidential by discussing their testimony with others. Shortly
before the close of the government's presentation, Crow presented
a second "theory"; he asked the court to compare, in camera, his
list of informants with the government's list. In closing
argument, Crow, for the first time, cited U.S.S.G. § 6A1.3 and
argued that the court's reliance on confidential informants is
"beyond the ... contemplation by the sentencing commission." He
did not once object that nondisclosure violated his right to
confrontation or due process.
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___, 111 S. Ct. 158 (1990). All three defendants were notified as
to the information the government intended to present regarding
their involvement in a drug conspiracy. The court allowed the
defendants to put on a defense as well as the opportunity to cross-
examine the officers who investigated their case and the probation
officer who prepared their reports. Appellants' confrontation
rights were not denied. See United States v. Byrd, 898 F.2d 450,
453 (5th Cir. 1990); United States v. Marshall, 910 F.2d 1241, 1244
(5th Cir. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 976 (1991).
D.
Appellants next object to the use of methamphetamine in
calculating their base offense level. They point out that none of
the informants, including CI #1, specified whether the drugs
distributed were amphetamine or methamphetamine, and that the
officers seized both amphetamine and methamphetamine. They contend
that the district court erred in resolving this uncertainty in
favor of methamphetamine, a substance that results in significantly
higher penalties (approximately double) under the guidelines.
None of the appellants objected to the use of methamphetamine,
as opposed to amphetamine, in calculating their base offense
level.12 We therefore, again, review only for plain error.
12
The objections filed by Allman, Young, and Crow to their
PSRs focused on the inclusion of additional methamphetamine as
relevant conduct. They stated that, given the speculative nature
of the evidence, they should only be held responsible for the 64.05
grams of methamphetamine seized on January 20. They did not object
to the probation officer's use of methamphetamine as opposed to
amphetamine. (Although Crow's PSR objections may raise this issue,
they fail to do so expressly.) At the beginning of the sentencing
hearing, the court, for the express purpose of obtaining a "clear
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"Questions of fact capable of resolution by the district court upon
proper objection at sentencing can never constitute plain error."
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). The
determination that appellants were involved in the distribution of
over 2,240 grams of methamphetamine is factual.13 Accordingly, we
do not find plain error.
E.
Crow, in objections filed to his PSR and at sentencing, objected
to the use of methamphetamine in calculating his base offense level
on the grounds that he is charged only with possession of
amphetamine, and there is no evidence indicating that he was aware
of any activities involving methamphetamine.
Crow was initially charged with conspiring to distribute
methamphetamine and amphetamine with intent to distribute.
Pursuant to a plea bargain, he pleaded guilty to a superseding
information charging him only with possession of amphetamine with
intent to distribute. Nonetheless, at sentencing, the court held
Crow accountable for the distribution of over one kilogram of
understanding" of common objections before the court, stated for
counsel its understanding that appellants were concerned with "the
amount of controlled substance that would constitute relevant
conduct". (Emphasis added.) See supra note 11. Counsel again
failed to object to the use of methamphetamine as opposed to
amphetamine, nor did they object during the course of the
sentencing hearing.
13
Appellants assert that the question is legal. We disagree.
The district court did not make the factual determination that it
was uncertain as to the type of drug distributed, and then resolve
its uncertainty in favor of the stiffer sentence. Rather, we can
infer from the record that the court determined that the substance
distributed on a large scale was methamphetamine.
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methamphetamine based on its factual determination that Crow was
actively involved in a conspiracy with Allman and Young to
distribute it.
When determining the base offense level for drug distribution,
a court may, of course, consider relevant conduct of which the
defendant has not been charged, or convicted. Byrd, 898 F.2d at
452. Similarly, counts to which the defendant does not plea may be
relevant conduct. Id. In the context of a drug distribution case,
relevant conduct includes additional quantities and types not
specified in the count of conviction if part of the same course of
conduct, plan, or scheme as the count of conviction.14
Accordingly, our sole inquiry with respect to this contention is
whether the district court clearly erred in finding that the
distribution of methamphetamine by Allman and Young was part of the
same course of conduct, common scheme, or plan, as the conduct
underlying Crow's conviction for possession of amphetamine with
intent to distribute. See Byrd, 898 F.2d at 452 (stating that the
determination of whether certain drugs are relevant is reviewed for
clear error). We conclude that this factual determination is not
clearly erroneous, even though officers did not personally observe
Crow in possession of methamphetamine.
14
The current commentary to the guidelines states,
[I]n a drug distribution case, quantities and types of
drugs not specified in the count of conviction are to be
included in determining the offense level if they were part
of the same course of conduct or part of a common scheme or
plan as the count of conviction.
U.S.S.G. § 1B1.3 (emphasis added).
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As discussed, supra, a number of CIs independently linked Crow
with drug distribution involving Young and Allman.15 The officers
vouched for the CIs' reliability and, as stated, their statements
were sufficiently corroborated, which provides further assurance of
reliability. There is also circumstantial evidence linking Crow
with Allman and Young's distribution scheme.16 Crow did little to
rebut the statements in the PSR regarding his involvement with
Young and Allman. He presented an affidavit from Young that denied
Crow's involvement in the conspiracy; however, the veracity of this
affidavit was called into question by statements of Allman to the
probation officer regarding his involvement with Crow.17
Accordingly, we do not find clear error.
III.
For the foregoing reasons, the judgments of the district court
are
AFFIRMED.
JUSTICE, District Judge, dissenting.
I dissent from the result reached by the majority. Moreover, I
differ with the majority's analysis of whether resentencing is
15
See supra, note 8.
16
For example, Allman was present at Crow's residence at the
time of the August 4 raid, which resulted in the seizure of
amphetamine, drug paraphernalia, and other evidence of the
distribution of illicit substances. Also, Officer Moore testified
that, on January 21, he observed what he believed to be Crow's car
at an unknown residence where he had observed Allman and Young
briefly stop while transporting methamphetamine the day before
(January 20). Moore testified that they had a suspicion that Crow
was staying at this residence; CIs reported that Crow had moved
there after the search of his trailer.
17
Allman stated, "We (Young, Crow, and I) sold some dope to
make our money back for the purchase of same."
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required where the government failed to establish good cause for
the non-disclosure of the identity of confidential informants.
1. Good Cause Showing for Nondisclosure of Identity
of Confidential Informants
The United States Sentencing Guidelines (U.S.S.G.) require a
good-cause showing before the district court considers out-of-court
declarations by confidential informants:
In determining the relevant facts, sentencing judges are not
restricted to information that would be admissible at trial.
18 U.S.C. §3661. Any information may be considered, so long as
it has "sufficient indicia of reliability to support its
probable accuracy." (citations omitted) Reliable hearsay
evidence may be considered. Out-of-court declarations by an
unidentified informant may be considered "where there is good
cause for the nondisclosure of his identity and there is
sufficient corroboration by other means." United States v.
Fatico, 579 F.2d 707, 713 (2d Cir. 1978). Unreliable
allegations shall not be considered. United States v. Weston,
448 F.2d 626, 634 (9th Cir. 1971).
U.S.S.G. §6A1.3 (Commentary) (emphasis added). See also United
States v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir. 1989).
U.S.S.G. §6A1.3 incorporated pre-guidelines case law requiring
(1) good cause for not disclosing the identity of an informant, and
(2) corroboration by other means of information furnished by an
undisclosed informant, before this informant's out-of-court
declarations can be used in sentencing. See United States v.
Fatico, 579 F.2d 707, 708-709 (2d Cir. 1978), cert. denied, 444
U.S. 1073 (1980).
In Fatico, a pre-sentencing guidelines case incorporated in the
comments to §6A1.3, the Second Circuit stated: "We hold . . . that
Due Process [and the Confrontation Clause] [do] not prevent use in
sentencing of out-of-court declarations by an unidentified
informant where there is good cause for the nondisclosure of his
identity and there is sufficient corroboration by other means."
Fatico, 579 F.2d at 713 (emphasis added). In Fatico, "the district
court . . . recognized that the Government cannot and will not
reveal informer's identities because of past murders of informants
who implicated organized crime members." Id. at 710. The hearsay
also had independent corroboration by testimony of two co-
conspirators. Id. See also United States v. Weston, 448 F.2d 626,
634 (9th Cir. 1971), cert. denied, 404 U.S. 1061 (1972) (cited in
U.S.S.G. §6A1.3 commentary) (where sentencing court relied on
statements of narcotics agents' which were supported, in part, by
a confidential informant's report, court remanded for resentencing,
since due process infringed unless statements of confidential
informants "amplified by information such as to be persuasive of
the validity of the charge there made"); Gardner v. Florida, 430
U.S. 349, 362 (1976) (in the context of capital case, vacating and
remanding where death sentence was based on secret information in
presentence investigation report, which defendant could neither
deny nor explain).
2. Misapplication of Federal Sentencing Guidelines
Pursuant to 18 U.S.C. §3742(f)(1), if the Court of Appeals
determines that the sentence:
(1) was imposed in violation of law or imposed as a result of
an incorrect application of the sentencing guidelines, the
court shall remand the case for further sentencing proceedings
with such instructions as the court considers appropriate
. . . .
(1989 Supp.) (emphasis added).
Under U.S.S.G. §6A1.3 (Commentary), out-of-court declarations by
an unidentified informant may be considered only "where there is
good cause for the nondisclosure of his identity and there is
sufficient corroboration by other means." Fatico, 579 F.2d 707, 713
(2d Cir. 1978).
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It is questionable whether appellants adequately preserved for
appeal their contention that it was error for the district court to
rely on information from confidential informants without a "good
cause" showing for nondisclosure of their identities. However,
even assuming that appellants did not preserve their contention for
appeal, misapplication of U.S.S.G. §6A1.3 (Commentary) constitutes
plain error in this case. Williams v. United States, 112 S.Ct.
1112, 60 USLW 4206 (1991).18
Although the party challenging the sentence must show that the
district court relied on an invalid factor at sentencing--in this
case, out-of-court declarations by confidential informants for whom
the government failed to make a good cause showing for non-
disclosure of identity--the reviewing court must determine if the
invalid factor was "determinative in the sentencing decision."
Williams, 60 USLW at 4209.19 "Once the Court of Appeals has decided
that the district court misapplied the Guidelines, remand [under
§3742(f)(1)] is appropriate unless the reviewing court concludes,
18
I assume, but do not decide, that the contemporaneous
objection rule applies in a case involving misapplication of the
federal sentencing guidelines. The mandatory nature of the Supreme
Court's language in Williams would indicate otherwise. In
discussing the proper analysis for remand under either §3742(f)(1)
or §3742(f)(2), the Court stated, "In order to give full effect to
both provisions, therefore, the reviewing court is obliged to
conduct two separate inquiries [only the first being relevant to
this case]. First, was the sentence imposed either in violation of
law or as a result of incorrect application of the Guidelines? If
so, a remand is required under §3742(f)(1)." Williams, 60 USLW at
4209 (emphasis added).
19
The fact that the commentary to U.S.S.G. §6A1.3 is at issue
in this case does not affect the appropriate analysis as to whether
a remand for resentencing is appropriate. Williams, 60 U.S.L.W. at
4208 ("general policy statements regarding application of the
guidelines," in addition to the guideline itself, will be cause for
remand, if the sentence is the result of misapplication of the
guideline.)
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on the record as a whole, that the error was harmless, i.e., that
the error did not affect the district court's selection of the
sentence imposed." Id.; United States v. Johnson, 961 F.2d 1188,
1189, n.1 (5th Cir. 1992) (adopting Williams and overruling prior
Fifth Circuit law which indicated that improper application of the
sentencing guidelines would always require remand).
In this case, misapplication of the sentencing guidelines
affected the district court's selection of sentence imposed, and
thus remand is appropriate for plain error.
3. Confidential Informant Information Used at Sentencing
Hearing Without Good Cause Showing for Nondisclosure of
Identity
In this case, the Pre-Sentence Reports of the United States
Probation Office recommended that appellants, Crow and Allman, be
held accountable for 3.41 and 3.46 kilograms of methamphetamine,
respectively, and Young for 7.8 kilograms of methamphetamine.
These amounts were based on confidential informant information,
indicating that Young transported at least six ounces of
methamphetamine two times per week (total 12 ounces per week) for
four months before he was arrested in January 1991. Information
provided by confidential informants was also to the effect that
Crow and Allman each received from Young no less than six ounces of
methamphetamine per week, which they packaged and distributed in
Waco.
Through the testimony of two narcotics agents at the September
1991, sentencing hearing, the government presented this
confidential informant information without making a good cause
showing for nondisclosure of identity. In the absence of a good
cause showing, the sentencing court determined the confidential
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informant information was reliable and accepted the above-stated
amounts set forth in the Pre-Sentence Reports of the United States
Probation Office. The judge, however, decided to halve the amounts
for each defendant, worrying about potential exaggeration. The
resulting guideline ranges were as follows: for Young, 135-168
months; for Crow, 151-188 months; and for Allman, 108-135 months.
The sentences included imprisonment of 160 months for Young, 170
for Crow, and 120 for Allman.
4. Conclusion
In my opinion, plain error occurred in not requiring a good cause
showing for non-disclosure of the identity of confidential
informants. Under the Williams standard, remand is required here
since, from the record as a whole, it cannot be conclusively
determined that the district court would have imposed the same
sentence, if the government had been required to, and failed to,
make a "good cause" showing for nondisclosure of identity of
confidential informants. See Williams, 60 USLW at 4209 ("in
determining whether a remand is required under §3742(f)(1), a court
of appeals must decide whether the district court would have
imposed the same sentence had it not relied upon the invalid factor
or factors.")
For the reasons stated above, I respectfully dissent.
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