UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-9043
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DOUGLAS CRAIG GOLDEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(March 17, 1994)
Before GOLDBERG, DAVIS and DeMOSS, Circuit Judges
DeMOSS, Circuit Judge:
Appellant Douglas Golden ("Golden") was involved in an
extensive marijuana distribution conspiracy that stretched from
Texas to Tennessee, Indiana, and Michigan. The conspiracy was
headed by Golden's brother, Donald. Golden was ultimately arrested
and charged for his role in the enterprise.
Golden pleaded guilty to conspiracy to possess with the intent
to distribute marijuana, in violation of 21 U.S.C. § 846. Golden's
offense level was calculated to be 32, based on an amount of
marijuana over 1,000 kilograms. U.S.S.G. § 2D1.1(3). Golden was
given a criminal history category of 3, thus making his sentence
range 151 to 188 months. U.S.S.G., ch. 5, part A. The court
sentenced Golden to 170 months in prison. Golden appeals his
sentence, raising two issues.
The Court's Denial of an Offense Level Reduction
Golden first argues that the district court erred in denying
him a reduction in offense level based on his acceptance of
responsibility. The district court heard evidence from Officer
Niketta Pratt, who testified that after Golden had pleaded guilty
and was out on bond awaiting sentencing, Golden arranged a meeting
between a prospective buyer and seller of marijuana in Michigan.
Golden was subsequently arrested in Michigan for possession of 20
pounds of marijuana. On the strength of this evidence, the
district court denied Golden an offense level reduction.
Golden points out that Pratt had no personal knowledge of his
alleged involvement in the Michigan transaction and that her
knowledge of the transaction was based solely on information
received by a confidential informant. While recognizing that the
district court may properly rely on hearsay evidence when making
sentencing determinations, United States v. Billingsley, 978 F.2d
861, 866 (5th Cir. 1992), Golden nevertheless argues that it was
error for the court to rely on hearsay evidence presented by "an
interested adverse witness . . . [without any] independent
corroboration of her testimony."
A district court may rely on uncorroborated hearsay testimony
in making factual findings as long as the hearsay evidence carries
sufficient indica of reliability. U.S. v. Cuellar-Flores, 891 F.2d
2
92, 93 (5th Cir. 1989). This court has previously concluded that
information provided by an "interested adverse witness" was
sufficiently reliable. See U.S. v. Manthei, 913 F.2d 1130, 1138
(5th Cir. 1990); Cuellar-Flores, 891 F.2d at 93. We conclude that
Officer Pratt's testimony carried sufficient indicia of reliability
to support the district court's denial of Golden's requested
reduction. Golden's first point of error is denied.
The Court's Foreseeability Finding
Golden's Presentence Investigation Report ("PSR") alleged that
Golden was responsible for the total amount of marijuana
distributed by the conspiracy: approximately 6,105 pounds (2,769.23
kilograms). Golden objected to this amount, arguing that he had
only limited involvement with his brother's organization and that
during those periods when he was involved, he was accountable for
a substantially lesser amount of marijuana. The probation
department filed an addendum to Golden's PSR, alleging that the
6,105 pounds of marijuana was reasonably foreseeable to Golden and
thus, chargeable to him under U.S.S.G. § 1B1.3.1 Golden again
objected, arguing that he did not reasonably foresee the full
extent of his brother's marijuana dealings.
On November 20, 1992, the district court held an evidentiary
hearing to address Golden's objections. Officer Pratt testified at
the hearing and provided details concerning the scope of the
1
"[I]n the case of a jointly undertaken criminal activity (.
. . whether or not charged as a conspiracy), all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken activity" are considered by the district court
in sentencing the defendant. U.S.S.G. § 1B1.3(a)(1)(B).
3
conspiracy in general, as well as Golden's extensive and
significant participation therein. Officer Pratt testified that
the total amount of marijuana involved in the entire conspiracy was
approximately 6,105 pounds, or 2,796 kilograms. She testified that
Golden played a "multifaceted" role in the conspiracy as a "pick
up" man, a "load driver," a warehouser, and a seller.2 She
testified that Golden was actively involved throughout the entire
period of the conspiracy, i.e., from 1987 to January 1992, with
some periods being more active than others. Finally, she testified
that during those periods in which he was more active, Golden
"would have been aware, or familiar or could have foreseen that
other marijuana was being sold and transported and stored
throughout this conspiracy." (Trans. of Sent. Hearing, p. 31,
emphasis added). At the conclusion of the hearing, the district
court overruled Golden's objection, specifically stating that it
"credit[ed] the testimony of Agent Pratt."
While no longer challenging the factual basis for his
sentence, Golden contends that the district court violated Federal
Rule of Criminal Procedure 32(c)(3)(D)(i) by failing to articulate
a specific finding that the amount of marijuana alleged in his PSR
2
As a "pick up" man, Golden was responsible for receiving
loads of marijuana that were transported from the Texas-Mexico
border to the Dallas area on the back of semi-trailers. Golden
received 15 such loads at approximately 200 pounds each. As a
warehouser, Golden warehoused as much as 5000 pounds of marijuana
at his residences over a one month period. As a "load driver,"
Golden drove three to five loads of marijuana from the Dallas area
to Indiana and Michigan, each load weighing between 75 and 100
pounds. No details were provided as to his role as a seller.
4
was reasonably foreseeable.3 We disagree. The district court
specifically "credit[ed]" the testimony of Officer Pratt. We hold
that by so doing, the court adopted Pratt's conclusion regarding
Golden's ability to foresee the transportation, storage and sale of
marijuana of the entire conspiracy. We hold further that the
court's adoption of this conclusion is tantamount to it finding
that Golden could reasonably foresee that 6,105 pounds of marijuana
would be distributed by the conspiracy. See United States v.
Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992) (holding that court's
adoption of facts set forth in PSR satisfied Rule 32(c)(3)(D)).
Moreover, we hold that the court's specific rejection of Golden's
objection to amount of marijuana charged in the PSR satisfies Rule
32. United States v. Sparks, 2 F.3d 574, 588 (5th Cir. 1993) ("[b]y
rejecting [defendant's] allegation that the quantity of drugs for
which the PSR held him responsible was not reasonably foreseeable
to him, the district court found that this quantity was reasonably
foreseeable to [defendant]"), cert. denied, 114 S. Ct. 899 (1994).
Golden's second point of error is denied, and we therefore
AFFIRM his sentence.
3
Rule 32 provides in relevant part: "If the comments of the
defendant . . . allege any factual inaccuracy in the presentence
investigation report . . ., the court shall, as to each matter
controverted, make (i) a finding as to the allegation." Fed. R.
Crim. P. 32(c)(3)(D).
Golden does not challenge that he was involved in "jointly
undertaken criminal activity" or that the conspiracy's total
distribution of marijuana was "reasonably foreseeable" to him. See
U.S.S.G. §1B1.3(a)(1)(B). Rather, his only complaint is that the
district court failed to comply with Rule 32(c)(3)(D).
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