UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60167
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WILLIAM DELMER EDWARDS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
(September 18, 1995)
Before WISDOM, HIGGINBOTHAM, and PARKER, Circuit Judges.
WISDOM, Circuit Judge:
William Delmer Edwards, Jr., the defendant/appellant,
brings this appeal to challenge three aspects of his sentence. We
hold that the district court did not err in its decisions regarding
the defendant's sentence.
I.
Edwards pleaded guilty to the charge of possession of
methamphetamine with the intent to distribute, in violation of 21
U.S.C. § 841. He admitted attending a meeting with co-conspirators
at a motel, weighing the methamphetamine brought to the meeting by
his co-conspirators, and leaving with at least 10 ounces of
methamphetamine.
At the sentencing hearing, Edwards raised several
objections. First, he contested the amount of drugs attributed to
him by the Presentence Investigation Report (PSI). According to
the PSI, the transaction in which Edwards participated involved 566
grams of methamphetamine. The district court received testimony
regarding the amount of drugs from both the defendant and a special
agent of the Drug Enforcement Administration (DEA), Thomas Moffett.
Edwards testified that he was told to expect a one pound delivery
(or 452.8 grams) but the bag was short when he received it and he
left the motel with only 10 ounces (or 283 grams).1 Moffett
testified that he had three informants in the motel room who each
reported to him the amount of drugs delivered and weighed. One
informant reported that there were 566 grams of methamphetamine and
two others reported that there was one pound (or 452.8 grams).2
After this testimony, the district court stated that it chose not
to credit the defendant's testimony that there were only 283 grams
of methamphetamine, but would reduce the amount attributed to the
defendant to 452 grams based on the informants' reports.3
At sentencing, the defendant also argued that he was
entitled to a reduction in his offense level under U.S.S.G. § 3B1.2
because of his minimal participation in the offense. In addition,
Edwards contended that he should receive a downward departure under
1
Record, volume 2 at 7-12.
2
Record, volume 2 at 13-25.
3
Record, volume 2 at 26-7.
2
U.S.S.G. § 5C1.2. The district court rejected both of these
arguments and determined that the defendant's offense level was 25,
with a sentencing range of 57 to 71 months. A statutory minimum
applies to this charge, however, and the mandatory minimum is 60
months. The district court sentenced Edwards to 60 months in
prison, 5 years supervised release, and imposed a fine of $2500
with a special assessment of $50. Edwards appeals.
II.
A. Standard of Review
We review the application of the Sentencing Guidelines de
novo.4 And, we review the sentencing court's findings of fact for
clear error.5 "A factual finding is not clearly erroneous as long
as the finding is plausible in the light of the record as a
whole."6
B. Amount of Drugs Attributed to Edwards
Edwards contends that the district court erred in not
crediting his testimony regarding the amount of methamphetamine,
especially in the light of the initial mistake in the PSI. He
argues that the district court's factual finding was clearly
erroneous because it was based on unreliable hearsay information.
For sentencing purposes, a district court "may consider
relevant information without regard to its admissibility under the
4
United States v. Bermea, 30 F.3d 1539, 1575 (5th Cir.
1994), cert. denied, 115 S.Ct. 1113, 115 S.Ct. 1825 (1995).
5
Id.
6
United States v. Jackie Brown, 7 F.3d 1155, 1159 (5th
Cir. 1993).
3
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy".7 And, this Court has previously held that
"out-of-court statements by unidentified informants" may be
considered provided that there is sufficient corroboration.8
Further, a district court has wide discretion in determining which
evidence to consider and which testimony to credit.9
In this case, three informants reported that the
methamphetamine delivered to the motel room was at least one pound
(or 452.8 grams). Edwards himself testified at the sentencing
hearing that he was expecting a full pound of methamphetamine.
Faced with conflicting reports of the amount of drugs involved, the
district court was free to make a credibility choice. We see no
error in the district court's decision to credit the testimony of
Agent Moffett and conclude that approximately 452 grams was
involved on the motel room transaction. Thus, we reject the
defendant's challenge to this aspect of his sentence.10
7
U.S.S.G. § 6A1.3; see also, Bermea, 30 F.3d at 1576;
United States v. Smith, 13 F.3d 860, 863 n.5 (5th Cir.), cert.
denied, 114 S.Ct. 2151 (1994).
8
United States v. Rogers, 1 F.3d 341, 343 (5th Cir. 1993);
see also, United States v. West, 58 F.3d 133, 138 (5th Cir. 1995);
United States v. Golden, 17 F.3d 735, 736 (5th Cir. 1994).
9
United States v. Ashburn, 20 F.3d 1336, 1349 (5th Cir.
1994), cert. denied, 115 S.Ct. 1969 (1995).
10
Edwards also argues that the district court failed to
determine the amount of drugs reasonably foreseeable to him under
U.S.S.G. § 1B1.3(a)(1)(B). The defendant himself, however,
testified at the sentencing hearing that he was expecting a full
pound of methamphetamine. Record, volume 2 at 7-12. Thus, this is
an alternative basis for affirming the district court's factual
4
C. Downward Departure under U.S.S.G. § 5C1.2
Edwards argues that he meets the requirements for a
downward departure under U.S.S.G. § 5C1.2 and that the district
court failed to fully consider his eligibility. Edwards argues
that the reduction in his offense level for acceptance of
responsibility under U.S.S.G. § 3E1.1 suggests that he qualifies
for a downward departure.
U.S.S.G. § 5C1.2 is a "safety valve" provision which
allows qualified defendants to escape the applicable statutory
minimum sentence.11 U.S.S.G. § 5C1.2 allows this relief only if the
defendant meets five criteria:
(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines;
(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or
induce another party to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, or supervisor of others in the
offense, as determine under sentencing
guidelines and was not engaged in a continuing
criminal enterprise, as defined in 21 U.S.C.
§ 848; and
(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided
to the Government all information and evidence
the defendant has concerning the offense or
finding that one pound of methamphetamine was attributable to the
defendant.
11
United States v. Hart, 876 F. Supp. 4, 5 (D.D.C. 1995).
5
offenses that were part of the same course of
conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or
useful information shall not preclude a
determination by the court that the defendant
has complied with this requirement.
In this case, the government opposed the application of
§ 5C1.2 because it argued that, by alleging that there were only 10
ounces of methamphetamine present, Edwards failed truthfully to
provide the government with all information and that, therefore,
Edwards failed to meet the fifth criteria. Edwards responds by
arguing that his challenge of the amount of drugs attributed to him
by the PSI does not preclude application of § 5C1.2, especially in
the light of the initial mistake in the PSI.
"A sentencing court's refusal to apply § 5C1.2 is a
factual finding, which we review for clear error."12 We agree with
Edwards that a mere challenge to factual findings at sentencing
does not automatically exclude application of §5C1.2. In this
case, however, more occurred at sentencing which is relevant to the
application of this section. Edwards offered testimony which
directly contradicted information gathered by the government. The
district court did not credit Edwards's testimony, as evidenced by
his finding that at least 452 grams of methamphetamine were
involved. Furthermore, the PSI indicates that Edwards told agents
at the time of his arrest that he had received only a half pound of
methamphetamine.13 Later, the defendant alleged that he received
12
United States v. Rodriguez, 60 F.3d 193, 194 n.1 (5th
Cir. 1995).
13
PSI at 4.
6
only two ounces of methamphetamine.14 In these circumstances, the
district court could have concluded that Edwards did not, as
alleged by the government, truthfully provide all relevant
information. We see no clear error in this conclusion and we,
therefore, affirm the district court's decision on this issue.
D. Minimal participant adjustment under U.S.S.G. § 3B1.2
Finally, the defendant argues that he was entitled to
between a two and four point reduction in his offense level because
of his minor or minimal participation in the offense.15 The
defendant raised this issue at the sentencing and it was rejected
by the district court.16
U.S.S.G. § 3B1.2 is designed to reduce a defendant's
14
Id.
15
U.S.S.G. § 3B1.2 provides:
Based on the defendant's role in the offense,
decrease the offense level as follows:
(a) If the defendant was a minimal
participant in any criminal activity, decrease
by 4 levels.
(b) If the defendant was a minor
participant in any criminal activity, decrease
by 2 levels.
In cases falling between (a) and (b),
decrease by 3 levels.
16
The defendant also alleges that the district court did
not make sufficient factual findings on this issue. The district
court raised the issue at the prompting of a recent letter from
defendant's counsel and sought the government's opinion. The
government expressed its opinion that Edwards was not a minor
participant. Although the district court did not specifically
detail its reasons for rejecting the defendant's argument, its
refusal to apply §3B1.2 suggests that the district court agreed
with the government's statement that Edwards was not a minor
participant. We will not, as Edwards suggests, remand this case to
the sentencing court based on this slight ambiguity in the record.
7
sentence when he is "substantially less culpable than the average
participant."17 This section does not apply whenever a defendant
is, to a lesser degree, less culpable than his co-conspirators.18
Rather, as noted in the comments to § 3B1.2, "a downward adjustment
for a minimal participant will be used infrequently."19 Also, this
Court has held previously that defendants like Edwards, whose
participation is limited to holding or delivering drugs, may not,
despite their more limited role in the conspiracy, be eligible for
a reduction of their offense level under § 3B1.2.20
According to admissions he made to the probation officer
in preparation of the PSI, Edwards helped weigh the drugs, hid them
on behalf of the conspiracy, and on several occasions accompanied
a co-conspirator making deliveries.21 Furthermore, the defendant
admitted to making several sales on his own.22 In these
circumstances, the district court did not clearly err when it
17
United States v. Sparks, 2 F.3d 574, 586 (5th Cir. 1993),
cert denied, 114 S.Ct. 720, 114 S.Ct. 899, 114 S.Ct. 1548 (1994).
18
United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.),
cert. denied, 115 S.Ct. 214 (1994).
19
U.S.S.G. § 3B1.2, comment 2.
20
Zuniga, 18 F.3d at 1261 (holding that a defendant who
accepted custody of heroin and then delivered it to the buyer
played an important role and was not entitled to e reduction under
§3B1.2); United States v. Pofahl, 990 F.2d 1456, 1485 (5th Cir.),
cert. denied, 114 S.Ct. 266, 114 S.Ct. 560 (1993) (noting that "a
`mule or transporter of drugs may not be entitled to minor or
minimal status'") (quoting United States v. Bethley, 973 F.2d 396
(5th Cir. 1992)).
21
PSI at 5.
22
Id.
8
determined that Edwards was not entitled to a reduction in his
offense level because he was a minor or minimal participant. We,
therefore, affirm this aspect of Edwards's sentence.
III.
The defendant brought this appeal to challenge several
factual findings made by the district court in determining his
sentence. We see no clear error in the decisions of the district
court and, therefore, we AFFIRM the defendant's sentence.
9