IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40100
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff/Appellee,
versus
VIRGIL SMITH ROBINSON, III,
Defendant/Appellant.
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Appeal from United States District Court
for the Southern District of Texas
(G-94-CR-1-1)
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(October 13, 1995)
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Virgil Smith Robinson, III appeals the sentence imposed by the
district court because he claims the court used unreliable evidence
to determine the amount of marijuana for which he was accountable
under the sentencing guidelines calculations. For the following
reasons, we affirm.
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
FACTS
Counts One and Three of the indictment charged appellant
Virgil Robinson, III), Jimmy Rebman, William Salway, Dianne Rebman,
Teresa Jones, Bradley McCoy, and Eden Churchill Chin with
conspiracy to possess and possession of marijuana. Counts Two and
Four charged Robinson, Rebman, Salway and Chin with conspiracy to
import and importation of marijuana. The dates alleged for the
conspiracies are from about August 1993 through December 22, 1993.
Chin, who was known as "Church," was the ringleader. After
Robinson pled guilty to the two conspiracies and the possession
counts, the court dismissed Count Four, which alleged importation,
as to him. Robinson did not have a plea agreement.
As the factual basis for Robinson's plea, the Assistant U.S.
Attorney stated that Robinson, Rebman, Salway, and Chin agreed to
import a large quantity of marijuana into the United States from
Jamaica. In accordance therewith, on November 30, 1993, Robinson,
Rebman and Salway sailed the vessel GOOD TIMES from Seabrook,
Texas, to Jamaica. They returned to Texas on December 19, 1993,
with their vessel loaded with 477 kilograms (c. 1051 pounds) of
marijuana. The GOOD TIMES met a 22-foot Wellcraft boat on the
intercoastal waterway in the Sergeant, Texas, area, at which time
all of the defendants except Chin loaded the marijuana onto the
Wellcraft. After these six defendants were arrested, Rebman
cooperated with Customs by making a controlled delivery of the
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marijuana to Chin in New York. Robinson agreed that these factual
representations were true.
The Presentence Report calculated that Robinson's relevant
conduct involved a total of 2651 pounds of marijuana. This was
based on 400 to 600 (calculated as 400) pounds which Rebman and
Robinson brought from Jamaica to Freeport, Texas, aboard the SALUS,
on some date after September 1, 1990. This marijuana was
transferred to a smaller boat and then to a Dodge motor home. The
motor home was driven to Chin's residence in Huntington, New York,
where it was unloaded. Rebman and Robinson were paid about
$150,000 for this marijuana.
After the SALUS was sunk accidentally, Chin bought the vessel
HAPPY HOURS. Rebman, Robinson, and two others sailed this vessel
to Jamaica, where it was loaded with 600 pounds of marijuana. They
transported this marijuana to Chin's residence as they did in the
September 1990 operation.
In April 1991, Rebman and Robinson again sailed the HAPPY
HOURS from Texas to Jamaica, where they loaded it with 600 pounds
of marijuana. They brought this load to Lacombe, Louisiana and
transferred it to a mobile home. This vehicle then was driven to
Chin's New York residence, where the marijuana was unloaded and
stored.
On April 29, 1991, after an FBI search in New Orleans,
officials seized the HAPPY HOURS and found about three pounds of
marijuana on board. Some of Chin's subordinates were prosecuted
and convicted in related cases, which interrupted Chin's, Rebman's
and Robinson's smuggling activities until about November 1, 1993.
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On that date, a confidential informant informed Customs Agents that
Rebman had offered to pay her $20,000 to sail with him, Robinson,
and Salway to Jamaica aboard the GOOD TIMES. The object was to
pick up the marijuana which was involved in the instant case.
Robinson objected to the Presentence Report's inclusion of the
1600 pounds of marijuana smuggled during the three earlier trips to
Jamaica as relevant conduct. He argued, inter alia, that the
information regarding these three trips was "unreliable hearsay
from an unidentified cooperating coconspirator.” The probation
officer maintained that there were sufficient indicia of
reliability to support this information. He stated that it was
obtained from two individuals who had been arrested, and that it
"was corroborated and led to the conviction[s] of Charles Scott and
his son David Charles Scott on charges of money laundering drug
proceeds and conspiracy to distribute marijuana."
The defendants had a lengthy evidentiary hearing on their
motions to suppress evidence. At the hearing, Customs Agent
Timothy Unger testified that he learned of Robinson's and Rebman's
previous trips to Jamaica by accessing reports of Customs agents in
Florida by computer. The reports stated that in April and November
1992, Charles Scott had provided information that Robinson and
others had been involved in smuggling marijuana from Jamaica.
Unger testified that the reports "indicated that [Scott] was a
reliable source because he had been cooperating with DEA and
Customs involving some property in New Mexico." Unger also
testified that he overheard Rebman tell the confidential informant
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in Texas of some of his previous trips to Jamaica to get marijuana.
Based on 2651 pounds (1205 kilograms (KG)) of marijuana (being
at least 1000 KG), the Presentence Report calculated Robinson's
base offense level at 32 under § 2D1.1(c)(6) of the Sentencing
Guidelines. If only the 1051 pounds (477 KG) involved in the
principal offense had been counted, under § 2D1.1(c)(8)of the
Sentencing Guidelines, Robinson's base offense level would have
been 28 because it was at least 400 KG but less than 700 KG.
Robinson received a three-level reduction for acceptance of
responsibility. With a total offense level of 29 and a criminal
history category of III, his guideline imprisonment sentencing
range was from 108 to 135 months. The district court adopted the
factual findings and the guideline applications stated in the
Presentence Report. The district court imposed three concurrent
prison terms of 120 months, plus five years of supervised release.
At Robinson's sentencing hearing, his counsel again objected
to the court's consideration of his prior trips to Jamaica.
Counsel argued that the names of the two arrested individuals who
provided this information had not been revealed and that the
Presentence Report addendum did not state how the information may
have been corroborated. The Government called on Agent Unger for
a response, although the record does not show that he was sworn as
a witness in this proceeding. Unger stated that he did not know
the identity of the Florida informants. However, he stated that he
knew that "they were documented customs informants; and in order
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for them to be documented informants, they have to be proven
reliable."
The prosecutor also reminded the court of taped conversations
in which Rebman told the Texas confidential informant that she did
not need to be concerned about getting caught because of how they
had conducted the operation, i.e., the trips to Jamaica, in the
past. The defense did not present any rebuttal evidence on this
point. The district court held that the previous trips would be
considered as relevant conduct because "there is a reasonable
likelihood that [evidence of the prior trips was] more reliable
than less [re]liable." The court also overruled the defense
objection that the prior trips were too remote in time to be
considered relevant conduct.
DISCUSSION
Robinson contends that the district court erred by basing his
sentence on the assertions that he was involved in prior trips to
Jamaica for marijuana because the supporting data was unreliable
hearsay. His argument rests on Unger’s lack of personal knowledge
that Charles Scott was a reliable informant, in spite of Unger’s
testimony that Scott implicated Robinson as having gone on the
previous trips. Robinson also argues that his admission that Chin
had paid him money in Florida, and that the trailer Robinson used
to drive the Wellcraft power boat to the beach house (where the
agents seized it) was identified by Florida authorities as having
been used to transport drugs, did not implicate him in the prior
trips to Jamaica. We find that Robinson’s arguments are
meritless.
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"When calculating quantities of drugs upon which to base a
sentence, quantities 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. Rogers, 1 F.3d
341, 345 (5th Cir. 1993). Such a calculation "represents a factual
finding, which must be established by a preponderance of the
evidence." United States v. Mitchell, 31 F.3d 271, 277 (5th Cir.),
cert. denied, 115 S. Ct. 455, 649 (1994). This Court "will uphold
the factual findings made by a district court in its determination
of a defendant's relevant conduct for sentencing purposes unless
that [finding] is clearly erroneous." United States v. Puig-
Infante, 19 F.3d 929, 942 (5th Cir.), cert. denied, 115 S. Ct. 180
(1994). A factual finding which is plausible in light of the
entire record is not clearly erroneous. Id.
For purposes of assessing facts in the sentencing context, we
have sanctioned the use of various materials which do not perfectly
coincide with the rules of evidence but which the district court
may glean sufficient reliability. “Admissibility for trial” is not
the yardstick used to measure whether particular information is
suitable for a sentencing calculation. "In making factual
determinations, . . . a district court may draw [] inference[s]
from a variety of data, including information in the [Presentence
Report]. . . . The [Presentence Report] generally bears sufficient
indicia of reliability to be considered as evidence by the district
court in resolving disputed facts [relative to sentencing]."
United States v. Brown, 54 F.3d 234, 242 (5th Cir. 1995) (citation
and quotation marks omitted). The district court can adopt facts
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contained in a Presentence Report without further inquiry, provided
that those facts had an adequate evidentiary basis, and the
defendant does not present rebuttal evidence. Puig-Infante, 19
F.3d at 943; Rogers, 1 F.3d at 345; and United States v. Rodriques
, 897 F.2d 1324, 1327-28 (5th Cir.), cert. Denied , 498 U.S. 857,
111 S. Ct. 158, 112 L. Ed. 2d 124 (1990). Furthermore, even "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."
Rogers, 1 F.3d at 343.
Robinson relies on United States v. Shacklett, 921 F.2d 580
(5th Cir. 1991), to support his contention that the informants'
statements concerning his earlier trips to Jamaica were
insufficiently reliable. Shacklett is factually distinguishable in
that the Government conceded that it could not confirm the
probation officer's finding concerning the quantity of drugs
involved, which this court found to be no more than his "conclusory
statement." 921 F.2d at 584.
In Robinson's case, the district court's total-quantity
finding was supported both by reliable information in the
Presentence Report and by evidence presented at the suppression
hearing, which the district court had reviewed. The Presentence
Report stated relevant details of Robinson's three previous trips
to Jamaica to obtain marijuana. This information came from the
Florida case agent's reports which led to the federal convictions
of Charles Scott and his son.
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Furthermore, Agent Unger testified at the suppression hearing
that Scott had admitted his involvement in Chin's Jamaican
marijuana-smuggling operation and that Scott had disclosed the
names of other participants, including Robinson. Unger testified
that Scott's reliability as a source of information was shown by
his having cooperated previously with the DEA and Customs. Unger
asserted that he had no reason to doubt or disagree with the
information he received from the Florida agents concerning
Robinson's prior participation in the conspiracy. At Robinson's
sentencing hearing, Agent Unger testified further that this
information also was obtained from documented confidential
informants in Florida, who by necessity must have been proven
reliable. Robinson was unable to impeach Unger's testimony.
Further, even if we assumed that the truthfulness of the
confidential informants was questionable, the district court in the
present case was free to rely on their information because of the
enormous amount of detail related in their accounts. "Uncertainty
about the veracity of an informant can . . . be compensated for by
detail of the statement or internal consistency of the statement
and surrounding facts." United States v. Privette, 947 F.2d 1259,
1262 (5th Cir. 1991), cert. denied, 503 U.S. 912, 112 S. Ct. 1279,
117 L. Ed. 2d 505 (1992). The Presentence Report shows that the
confidential informants described Robinson's prior trips to Jamaica
in detail, stating the dates of the first and third trips, the
routes traveled, the quantities of marijuana involved in each trip,
the names of the vessels involved, and how the marijuana was
transported to Chin's New York residence. Customs agents
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corroborated the information concerning the first trip by
researching records of the Blue Lightning Information Systems.
The sources which the district court relied on relative to
Robinson's prior trips to Jamaica bear sufficient indicia of
reliability to support the probable accuracy of this information.
Robinson, however, did not present any evidence concerning the
amount of marijuana for which he should be held accountable.
Because Robinson failed to meet his burden of showing that the
relevant Presentence Report data, or Agent Unger's testimony, was
materially untrue, the district court was entitled to credit this
information in determining Robinson's sentence. See United States
v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).
CONCLUSION
For the foregoing reasons, the judgment of the district court
is hereby AFFIRMED.
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