UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-40412
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUNIOUS LOUIS VITAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(October 19, 1995)
Before GARWOOD, DUHÉ, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Convicted on a guilty plea of possession with intent to
distribute 27.7 grams of cocaine and sentenced to 78 months
imprisonment, Junious Louis Vital appeals his sentence. Finding no
error, we affirm.
FACTS
On January 30, 1991, an undercover police officer negotiated
with Junious Louis Vital (“Vital”) for the sale of one ounce of
cocaine. Vital instructed the officer to meet him at an apartment
in Beaumont, Texas. While at the apartment, Vital showed the
officer five individual plastic bags containing cocaine. The
police officer purchased one of the bags, containing 27.7 grams of
cocaine, for $1200.
On February 7, 1991, the undercover officer again contacted
Vital and set up another transaction for the following day. On
February 8, 1991, the officer purchased 28 grams of cocaine from
Vital, again for $1200.
On February 22, 1991, in a transaction wholly unrelated to the
investigation of Vital, police arrested Joseph Anthony August
(“August”) for aggravated possession of a controlled substance.
While being questioned, August admitted to law enforcement officers
that he transported cocaine for Vital. August also admitted that
he had been working for Vital since January 1991. August told the
officers that during the time he had worked for Vital he had
traveled to Houston two or three times a week to purchase two to
four ounces of cocaine for Vital. He also informed the officers
that the money to purchase the cocaine was provided by Vital and
that Vital made all the arrangements for each transaction.
On June 5, 1992, law enforcement officers received information
from a confidential informant that Vital was trafficking cocaine
and living at a residence in Beaumont, Texas. Based upon this
information, the officers obtained a search warrant for the
residence and executed it the same day. Vital was not present when
the search was conducted. The search of the residence revealed
65.25 grams of cocaine and six firearms. Vital was apprehended
later that day after attempting to flee from the police. While
2
attempting to flee, he discarded a small purse which the officers
later recovered. Inside the purse were 2.97 grams of cocaine base.
Vital was subsequently interviewed by FBI agents and admitted to
trafficking cocaine for approximately three years.
PROCEEDINGS BELOW
Vital was the sole defendant named in a three-count indictment
filed in the Eastern District of Texas. Count I of the indictment
charged Vital with possession with the intent to distribute cocaine
on January 30, 1991.1 Counts II and III also charged Vital with
possession with the intent to distribute cocaine on February 8,
1991, and June 5, 1992, respectively.
On January 24, 1994, Vital appeared with counsel in district
court, and pursuant to a written plea agreement, pleaded guilty to
Count I of the three-count indictment. Counts II and III were
subsequently dismissed.
A presentence investigation report ("PSR") was prepared, and
Vital filed written objections to some of its factual allegations.
First, Vital challenged a firearms enhancement under U.S.S.G. §
2D1.1 (b)(1) on the grounds that there was no evidence that Vital
owned or possessed the firearms discovered during the search of his
residence. Second, Vital objected to the determination of the
quantity of cocaine attributed to him. And finally, Vital objected
to the conclusion that he was not entitled to a credit for
acceptance of responsibility under U.S.S.G. § 3E1.1.
At Vital's sentencing hearing, the district judge overruled
1
See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).
3
all objections and adopted the PSR. By adopting the
recommendations in the PSR, the court found that Vital was
responsible for 405.45 grams of cocaine and 2.97 grams of cocaine
base, resulting in a base offense level of 26.2 A two point
enhancement was assessed for possession of firearms.3 The total
base offense level for Vital was 28, with a criminal history
category of I, resulting in a sentencing range from 78-97 months.4
The court found that Vital was not eligible for a decrease in the
offense level for acceptance of responsibility and sentenced him to
78 months imprisonment, three years supervised release, and waived
the $50.00 special assessment. Vital appeals the imposition of
this sentence. Vital argues that the district court erred in its
application of the sentencing guidelines and that the district
court’s factual determinations for sentencing purposes were clearly
erroneous. We address each of these points below.
ANALYSIS
This court will uphold a sentence imposed under the sentencing
guidelines unless such sentence is imposed in violation of law,
results from an incorrect application of the guidelines, or is an
unreasonable departure from the applicable guideline range. United
States v. Buenrostro, 868 F.2d 135, 139 (5th Cir. 1989), cert.
denied, 495 U.S. 923 (1990).
2
See U.S.S.G. § 2D1.1(c)(11).
3
See U.S.S.G. § 2D1.1(b)(1).
4
See U.S.S.G. Chapter 5, Part A.
4
“RELEVANT CONDUCT” AND U.S.S.G § 1B1.3
It is well established that a defendant’s base offense level
for the offense of conviction must be determined on the basis of
all “relevant conduct” as defined in U.S.S.G. § 1B1.3. United
States v. Wittie, 25 F.3d 250, 260 (5th Cir. 1994), aff’d, --- U.S.
---, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995). We must determine
whether conduct occurring after the offense of conviction was
properly considered as “relevant conduct” for purposes of
calculating Vital’s sentence.
In calculating Vital’s base offense level for the offense of
conviction under Count I of the indictment, the district court
considered as relevant conduct: (1) Vital’s sale of 27.7 grams of
cocaine to an undercover officer on January 30, 1991 (Count I); (2)
Vital’s sale of 28 grams of cocaine powder to the same undercover
officer on February 8, 1991 (Count II); (3) the purchases of 340.2
grams5 of cocaine powder made by August on Vital’s behalf; and (4)
Vital’s possession -- on his person and in his home -- of 65.25
grams of cocaine powder, 2.97 grams of cocaine base and six
firearms on June 5, 1992 (Count III).
In United States v. Byrd, 898 F.2d 450 (5th Cir. 1990), the
defendant-appellant argued that conduct charged in dismissed counts
of an indictment should not be considered as relevant conduct for
sentencing purposes. In that case, the appellant was charged with
5
Based upon the information provided by August, the district
court, relying upon the PSR, determined that Vital was responsible
for two deliveries per week of two ounces per transaction for three
weeks, which equals 340.2 grams of cocaine powder.
5
distribution of cocaine base on August 5, 1988, and with the sale
of cocaine base on August 30, 1988. Although the appellant in that
case was convicted only of the August 5th distribution, the
presentence report included the August 30th sale as relevant
conduct and the base offense level was calculated accordingly.
This court clarified that, in drug distribution cases, quantities
of drugs not specified in the count of conviction are to be
included in computing the base 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." Id. at 452.
The decision in Byrd comported with this court's prior
determination that counts to which the defendant does not plead
guilty may be considered as relevant conduct in sentencing. See
United States v. Taplette, 872 F.2d 101, 106 (5th Cir.) (counts to
which defendant did not plead were relevant since the sales
occurred within a three week period and were all made to the same
government informant), cert. denied, 493 U.S. 841, 110 S. Ct. 128,
107 L. Ed. 2d 88 (1989); United States v. Young, 981 F.2d 180, 189
(5th Cir. 1992)(quantity of methamphetamine for which co-defendant
was charged was attributable as relevant conduct to defendant
charged with separate offense of possession of amphetamine as part
of the same course of conduct, common scheme or plan), cert.
denied, --- U.S. ---, 113 S. Ct. 2454, 124 L. Ed. 2d 670 (1993).
This court has made it clear that there is no separate statute of
limitations beyond which relevant conduct becomes irrelevant.
United States v. Moore, 927 F.2d 825, 828 (5th Cir.), cert. denied,
6
502 U.S. 871, 112 S. Ct. 205, 116 L. Ed. 2d 164 (1991).
It is clear that district courts are permitted to consider
unadjudicated offenses which occur after the offense of conviction
for sentencing purposes, but only if they are “relevant conduct”
under U.S.S.G. § 1B1.3. In order for the unadjudicated offenses in
the instant case to rise to the level of “relevant conduct”, they
had to be “part of the same course of conduct or common scheme or
plan as the offense of conviction.” U.S.S.G. §1B1.3(a)(2).
Although there was no express finding by the district court that
the unadjudicated offenses were part of a common scheme or plan,
this finding is implicit in the trial court’s express determination
that the unadjudicated offenses did in fact constitute “relevant
conduct” for sentencing purposes.
A finding by a district court that conduct is part of a common
scheme is a factual determination subject to review under the
clearly erroneous standard. United States v. Lokey, 945 F.2d 825,
839-40 (5th Cir. 1991). Although the district court's implicit
finding of a common scheme or coherent course of conduct in the
instant case might otherwise be subject to review for clear error,
Vital failed to object to the district court's consideration of the
unadjudicated offenses during sentencing. Therefore, the district
court's consideration of these episodes of conduct is reviewable
only for plain error.
Pursuant to Fed. R. Crim. P. 52(b), this court may correct
forfeited legal errors, or unobjected-to errors, only when there is
a demonstration of the following: (1) there must be an error; (2)
7
the error must be clear, obvious or readily apparent; and (3) this
obvious legal error must affect substantial rights. United States
v. Calverley, 37 F.3d 160, 162-164 (5th Cir. 1994) (en banc)
(citing United States v. Olano, --- U.S. ---, 113 S. Ct. 1770,
1776-79, 123 L. Ed. 2d 508 (1993)), cert. denied, --- U.S. ---, 115
S. Ct. 1441, 131 L. Ed. 2d 320 (1995). Upon a finding that these
requisites of plain error have been met, this court is empowered,
in its sound discretion, to correct the assigned error. However,
plain errors affecting substantial rights "should be corrected on
appeal only if they 'seriously affect the fairness, integrity, or
public reputation of judicial proceedings.'" Id. at 164 (quoting
United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392,
80 L. Ed. 555 (1936)). "[I]n most cases it means that the error
must have been prejudicial: It must have affected the outcome of
the District Court proceedings." Olano, 113 S. Ct. at 1778.
Furthermore, "Rule 52(b) is permissive, not mandatory. If the
forfeited error is 'plain' and 'affect[s] substantial rights,' the
Court of Appeals has authority to order correction, but is not
required to do so." Id. (quoting Fed. R. Crim. P. 52(b)).
The narrow discretion of this court to correct plain error
pursuant to Rule 52(b) is even further pared in the present
instance: "’[Q]uestions of fact capable of resolution by the
district court upon proper objection at sentencing can never
constitute plain error.’" United States v. McCaskey, 9 F.3d 368,
376 (5th Cir. 1993)(quoting United States v. Lopez, 923 F.2d 47, 50
(5th Cir.), cert. denied, --- U.S. ---, 111 S. Ct. 2023, 114 L. Ed.
8
2d 117 (1991)).
At sentencing, Vital did not object to those portions of the
PSR that expressly referred to his unadjudicated conduct described
in the dismissed counts of the indictment. If Vital had objected
to the district court's consideration of these unadjudicated
offenses as relevant conduct, then the district court could have
resolved this question of fact at sentencing. In the absence of
any such objection, however, the district court adopted the
recommendations set forward in the PSR. Therefore, following this
court's opinion in McCaskey, supra, the district court did not
commit plain error when it considered the conduct described in the
dismissed counts of the indictment as being part of a common scheme
for sentencing purposes.
SENTENCE ENHANCEMENT FOR FIREARMS POSSESSION
The decision by the district court to enhance Vital's sentence
for possession of firearms pursuant to U.S.S.G. § 2D1.1(b)(1) was
a factual determination. Therefore, this court reviews this
determination for clear error. United States v. Eastland, 989 F.2d
760, 769 (5th Cir.), cert. denied, --- U.S.---, 114 S. Ct. 246, 126
L. Ed. 2d 200 (1993).
A sentencing court should increase a defendant's base offense
level by two points in situations involving possession of a
dangerous weapon "if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense."
U.S.S.G. § 2D1.1, comment. (n.3). This court has held that this
adjustment is not limited to those scenarios in which the defendant
9
possesses a dangerous weapon during the offense of conviction; the
adjustment is also to be made when the defendant possesses a
dangerous weapon during the course of related relevant conduct.
United States v. Vaquero, 997 F.2d 78, 85 (5th Cir.), cert. denied,
--- U.S. ---, 114 S. Ct. 614, 126 L. Ed. 2d 578 (1993). As
previously discussed, Vital’s arrest on June 5, 1992, and the
circumstances surrounding that arrest, were relevant conduct for
sentencing purposes. Therefore, the issue before this court is
whether the district court was correct when it found that Vital
possessed the firearms found in his home on that date.
At sentencing, Vital objected to the firearms enhancement on
the basis that there was no evidence that he owned or possessed a
firearm. However, Vital’s admissions in the PSR do not support
this contention. In the PSR Vital admitted that the firearms
seized on June 5, 1992, belonged to his girlfriend and that he was
aware that she kept firearms in his home.
This court has determined that access to, and not ownership
of, the dangerous weapon must be established; even if the defendant
did not intend to use the weapon, it suffices that the weapon could
have been used. United States v. Menesses, 962 F.2d 420, 429 (5th
Cir. 1992). In light of this court's opinion in Menesses, the
admissions by Vital are sufficient to support the district court's
enhancement of the base offense level. Therefore, the district
court's enhancement of Vital's base offense level for possession of
a dangerous weapon was not clearly erroneous.
10
AMOUNT OF DRUGS ATTRIBUTABLE TO VITAL
Relying on the testimony of August, the U.S. probation officer
who prepared the PSR imputed an additional 340.2 grams of cocaine
powder to Vital for sentencing purposes.6 The district court then
used this finding to enhance Vital's base offense level by an
additional two points. Vital objected at the sentencing hearing,
arguing that August's testimony was hearsay on hearsay, made under
duress, and with the hope or expectation of consideration for his
testimony.
This court is to uphold the district court's factual findings
regarding the quantity of drugs attributable to the defendant for
sentencing purposes unless such findings are clearly erroneous.
United States v. Robins, 978 F.2d 881, 889 (5th Cir. 1992). In
determining the relevant facts at sentencing, the district court is
not restricted to information that would be admissible at trial.
The district court may consider any information which has
"sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. § 6A1.3, comment.; see also, United States v.
Manthei, 913 F.2d 1130, 1138 (5th Cir. 1990). A presentence report
is considered reliable and may be considered as evidence by the
trial judge in making sentencing determinations. United States v.
Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992) (citing United States
v. Sanders, 942 F.2d 894, 897-898 (5th Cir. 1991)). Furthermore,
if no relevant affidavits or other evidence is submitted to rebut
the information contained in the PSR, the court is free to adopt
6
Supra note 5.
11
its findings without further inquiry or explanation. United States
v. Mir, 919 F.2d 940, 943 (5th Cir.), cert. denied, --- U.S. ---,
113 S. Ct. 105, 121 L. Ed. 2d 64 (1990). Vital failed to present
any evidence to support his objection to the court’s reliance on
the information set forward in the PSR pertaining to August's
testimony. Consequently, the district court's reliance on the PSR
was not clearly erroneous.
ACCEPTANCE OF RESPONSIBILITY
At sentencing, Vital argued that his plea of guilty and his
admission of conduct comprising the offense of conviction
demonstrated his acceptance of responsibility for his offense.
Vital also protested the probation officer's unfavorable
recommendations based on Vital's inability to recall the details of
the offense. This court has not definitively determined the
standard for reviewing a district court's refusal to credit a
defendant's purported acceptance of responsibility. The court has
applied, on separate occasions, the clearly erroneous standard, the
"without foundation" standard, and the "great deference" standard
when conducting such a review. United States v. Thomas, 12 F.3d
1350, 1372 & n.39 (5th Cir.), cert. denied, --- U.S. ---, 114 S.
Ct. 1861, 128 L. Ed. 2d 483, and cert. denied, --- U.S. ---, 114 S.
Ct. 2119, 128 L. Ed. 2d 676 (1994). In Thomas, this court
determined that, "for the purpose of this appeal, there appears to
be no practical difference between the three standards." Id.
The sentencing guidelines shed considerable light on the
deference which a reviewing court must afford the sentencing court
12
in this context: "The sentencing judge is in a unique position to
evaluate a defendant's acceptance of responsibility. For this
reason, the determination of the sentencing judge is entitled to
great deference on review." U.S.S.G. § 3E1.1, comment. (n.5).
Furthermore, "a defendant who enters a plea of guilty is not
entitled to an adjustment under this section as a matter of right."
U.S.S.G. § 3E1.1 comment., (n.3). Finally, "a defendant who
falsely denies, or frivolously contests, relevant conduct that the
court determines to be true has acted in a manner inconsistent with
acceptance of responsibility." U.S.S.G. § 3E1.1, comment.
(n.1(a)). In light of this commentary, we hold that the correct
standard of review to apply to a district court’s refusal to credit
a defendant’s acceptance of responsibility is the “great deference”
standard.
The district court responded to Vital's objections at
sentencing, observing that Vital's three positive tests for cocaine
metabolite since his arrest undercut his acceptance of
responsibility. In addition, the district court noted that Vital,
at the time of sentencing, continued to deny several factual
elements of the offense, maintaining that (1) he never sold cocaine
for $1,200 an ounce, (2) he was never in possession of crack
cocaine, and (3) he never visited or lived in the Florida Street
Apartments, the scene of the offense of conviction. During Vital's
interview prior to sentencing, he stated that he could not recall
"any of the specific incidents detailed in the offense reports
provided by law enforcement," and denied that he told anyone that
13
others were selling cocaine for him or that he purchased the
cocaine from a source in Houston.
Based on this evidence, the district court found that Vital
had denied facts bearing on the offense of conviction and on
relevant conduct. Granting great deference to these findings, we
hold that the trial court did not err when it refused to reduce
Vital’s sentence for acceptance of responsibility.
BURDEN OF PROOF REQUIRED TO SUPPORT FACTUAL FINDINGS
Vital argues that the district court's factual determinations
relating to the testimony of August should have been based upon
clear and convincing evidence because this testimony had the effect
of dramatically increasing Vital's sentence. Vital urges that the
district court should have departed from the established burden of
proof of “preponderance of the evidence” and used a higher standard
for making its factual determinations in the instant case. See
United States v. Mitchell, 31 F.3d 271, 277 (5th Cir.) (factual
findings must be established by a preponderance of the evidence),
cert. denied, --- U.S. ---, 115 S. Ct. 455, 130 L. Ed. 2d 363
(1994).
In support of this argument, Vital relies primarily on United
States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). In Kikumura, the
Third Circuit held that the district court should have based its
factual determinations upon "clear and convincing" evidence in a
situation where the sentence was increased from thirty months to
thirty years, a 22-level increase in the offense level, where the
increase was based, in part, upon hearsay testimony. Id. at 1100-
14
02.
Vital contends that, as a direct consequence of the district
court's consideration of August's testimony, Vital was sentenced to
78 months instead of 63 months. Vital contends that August's
testimony therefore resulted in a dramatic increase of his sentence
-- an increase of over 23%. If we assume, arguendo, that Vital is
accurate in his contention that the district court's consideration
of August's testimony did result in a 23% increase in his sentence,
this still does not constitute a departure from the guidelines of
such magnitude that would require the imposition of a higher burden
of proof. See United States v. Carreon, 11 F.3d 1225, 1240 (5th
Cir. 1994) (where sentence was enhanced from roughly six years to
twenty years, the application of a higher burden of proof to the
evidence used for enhancement purposes was not warranted).
CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
15