IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-50764
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE DRELL DAVIS,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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February 7, 1996
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Defendant-appellant Joe Drell Davis ("Davis") pleaded guilty
to possession with intent to distribute crack cocaine in violation
21 U.S.C. § 841(a)(1). On appeal he challenges only his sentence,
alleging that the district court erred in finding that seven ounces
(198.45 grams) of crack cocaine were attributable to him. Davis
challenges the sentence on two grounds. First, he questions
whether the information used to calculate the quantity of cocaine
he sold was grounded in sufficient indicia of reliability since it
was based on a statement provided by a confidential informant who
later contradicted the statement at Davis' sentencing hearing.
Second, he argues that the quantity of cocaine attributed to him
should reflect the amount of cocaine he actually sold instead of
the amounts he negotiated to sell. Based on our determination that
the district court's finding was not clearly erroneous and that the
court correctly applied the sentencing guidelines, we affirm Davis'
sentence.
I
Davis was the subject of an undercover sting operation
conducted by the Killeen, Texas Police Department. On July 27,
1994, while under surveillance by police officers, Davis negotiated
the sale of two ounces (56.7 grams) of crack cocaine to a
confidential informant, Jody Wilson ("Wilson"). Wilson actually
bought slightly less than two ounces of crack cocaine (46.40
grams). He paid Davis $1,900. Davis was arrested and charged with
distribution of crack cocaine in violation of 21 U.S.C. §
841(a)(1). Davis pleaded guilty as charged.
Prior to the sting operation, Wilson told the police that he
had been purchasing cocaine from Davis about twice a month over the
five month period prior to July 27, 1994. Wilson stated that he
would purchase "two ounces every two weeks [or] sometimes I might
buy one ounce a week." Wilson also said that he generally
purchased crack cocaine, but also occasionally bought powder
cocaine. The police relayed this information to the U.S. Probation
Office.
After Davis' guilty plea, Davis' probation officer prepared a
Presentence Report ("PSR") attributing seven ounces of crack
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cocaine to Davis. The probation officer reached this conclusion by
adding the amount of crack cocaine Davis negotiated for sale to
Wilson in the sting operation (two ounces or 56.7 grams) to the
amount of crack cocaine the officer estimated that Davis had sold
to Wilson over the five-month period preceding the sting (five
ounces or 141.75 grams). In order to generate the latter estimate,
the officer assumed that Davis sold drugs to Wilson in ten separate
transactions, each involving only one ounce of cocaine. The
officer further estimated that only half of the ten transactions
involved crack cocaine, in order to allow for Wilson's statement
that "occasionally he bought powder cocaine." Using seven ounces
of crack cocaine as the total amount of controlled substances
involved, the PSR assigned Davis a base offense level of 34 and an
imprisonment range of 151-188 months.
Wilson testified at Davis' sentencing hearing. Under oath he
stated that he purchased crack cocaine from Davis on July 27, 1994,
and that he knew Davis for five months. He also stated that he
purchased drugs "maybe four or five times" from Davis in the
preceding five months, and that the "cocaine deals ranged from a
half-ounce to two ounces." Wilson also testified on direct
examination that sometimes the transactions involved powder
cocaine.
On cross-examination, Wilson confirmed his statement, used in
the PSR, that he "would buy two ounces every two weeks, sometimes
I might buy one ounce a week." When asked about the discrepancy
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between his testimony and his statements to the police, Wilson
explained that his earlier estimate for the PSR was "a range," and
that his testimony differed because "its not something that I wrote
down on a calendar." He also responded that "I told [the police
that my earlier statement] was an approximation."
In sentencing Davis, the district court adopted the factual
findings and guideline application in the PSR. The district court
sentenced Davis to 151 months in jail, the minimum imprisonment
time at the corresponding offense level. Davis now objects to the
amount of crack cocaine attributed to him by the PSR and the
district court and, therefore, to the base offense level and
imprisonment range applicable to him.
II
Davis first contends that the information provided by Wilson
to the police and incorporated into the PSR regarding Davis' crack
sales to Wilson prior to July 27, 1994, lacks sufficient indicia of
reliability to support its probable accuracy, as required under
U.S.S.G 6A1.3. Davis urges that the estimates used in the PSR have
no corroboration because they were based on statements by Wilson
that Wilson later contradicted at the sentencing hearing. Instead,
Davis argues that Wilson's testimony at the hearing is controlling
and requires the district court to find that he sold no more than
three ounces of crack prior to the sting, which would result in a
reduction of his base level offense, and a corresponding decrease
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in the imprisonment range applicable to him.1 The use of any
amount of crack greater than three ounces lacks sufficient indicia
of reliability, Davis maintains, and requires this court to find
clear error on the part of the district court in sentencing him.
"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
442, 445 (5th Cir. 1990). 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). Under the clearly
erroneous standard, "[i]f 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." Anderson v. City of Bessemer City, 470 U.S.
564, 574 (1985).
1
Specifically, Davis maintains that Wilson's testimony (a)
limited the total number of drug transactions between Davis and
Wilson before July 27, 1994, to five transactions, and (b)
established that only half of these transactions, at most three,
involved crack cocaine. Because each transaction involved between
"a half-ounce [and] two ounces," Davis urges that "[t]he figure of
one ounce would . . . be reasonable to use." Plugging in the
numbers that Davis asserts are reliable (five sales of cocaine
consisting of one ounce each, three of which involved crack
cocaine), only three ounces (or 85.05 grams) of crack may be
attributed to Davis prior to July 27. This amount, together with
that in the controlled buy, equals a total of 141.05 grams, giving
Davis an offense level of 32 and a sentence guideline range of 121-
151 months.
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A district court has wide discretion in determining which
evidence to consider and which testimony to credit. U.S. v.
Edwards, 65 F.3d 430 (5th Cir. 1995). 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;
U.S. v. Michael, 894 F.2d 1457, 1461-62 (5th Cir. 1990). Facts
used by the district court for sentencing purposes have "some
indicia of reliability" where they are "reasonably reliable." U.S.
v. Shacklett, 921 F.2d 580, 585 (5th Cir. 1991). "The defendant
bears the burden of demonstrating that information the district
court relied on in sentencing is `materially untrue.'" United
States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991).
In United States v. Young, 981 F.2d 180 (5th Cir. 1993), we
found that a sentencing court's determination as to the amount of
drugs involved in defendants' offenses was supported by reliable
information. We did so despite the defendants' claim that the
district court improperly relied on the officers' hearsay testimony
about the statements of certain confidential informants and the
fact that one defendant presented evidence that tended to rebut
information provided by the confidential informants. The
government provided corroboration in the form of evidence obtained
from its own investigation concerning the defendants' involvement
in drug dealing and the informants' past record of reliability,
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without specifically corroborating the drug amounts reported by the
informants. We noted in Young that, although faced only with the
paucity of defendants' rebuttal testimony, the district court
nevertheless halved the amount of drugs reported by the informants
to "tak[e] into account uncertainty and the possibility of
exaggeration." Id. at 186.
In the present case, Wilson gave conflicting testimony at the
sentencing hearing as to the aggregate number of purchases he made
from Davis prior to July 27. He stated on direct examination that
he purchased drugs from Davis "maybe four or five times," a
departure from his statement for the PSR. On cross-examination,
however, he confirmed that he had purchased drugs from Davis over
a five-month period in which he "would buy two ounces every two
weeks, sometimes I might buy one ounce a week." He explained the
conflict in his own testimony by noting that his purchases were
"not something that I wrote down on a calendar."
The district court carefully evaluated Wilson's conflicting
testimony at the sentencing hearing and chose to credit one of
Wilson's accounts about the number of times he purchased crack from
Davis prior to July 27, to the rejection of Wilson's other account.
Faced with Wilson's own conflicting reports, the district court was
free to evaluate the testimony and to make this credibility choice.
We see no error in the district court's determination that Wilson's
cross-examination testimony was more worthy of credence than his
direct testimony and conclude that Davis sold Wilson cocaine on ten
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occasions, five of which involved crack. This is especially true
in the light of the fact that this credibility choice finds
corroboration in the factual account of the crack sales
incorporated into the PSR. Thus, it is clear that under our
standard of review the information the district court used to
determine the quantity of drugs sold by Davis was reasonably
reliable.
Our conclusion that the district court committed no error is
further buttressed by the fact that, as in Young, the district
court here took into account the uncertainty of Wilson's report of
Davis' crack sales when it adopted the PSR. Specifically, Wilson
stated for the PSR and testified at the sentencing hearing that he
"occasionally would buy powder cocaine." This testimony would
support as few as two or three purchases of powder cocaine and as
many as seven or eight sales of crack. Nevertheless, the PSR and
the district court discounted the amount of crack Davis sold to
Wilson by assuming only five transactions involving crack.2 Given
the trial court's conservative estimate, we must say that the
2
We especially note that the PSR and the district court made
allowances for the amount of crack sold in each transaction.
Wilson stated variously that he would purchase one or two ounces
during each sale (his statement for the PSR), and that the
purchases ranged from "one-half ounce to two ounces" (Wilson's
hearing testimony). The PSR, adopted by the district court,
assumed sales of one ounce each in order "[t]o allow Davis the
benefit of the doubt." This assumption falls at the bottom of the
range Wilson provided for the PSR and roughly in the middle of the
range Wilson gave at the sentencing hearing.
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court's attribution to Davis of seven ounces of crack cocaine is
not clearly erroneous.
III
Davis next contends that the district court erred by
attributing to him the full two ounces he negotiated to sell to
Wilson on July 27, 1994. Instead, Davis argues that he should be
charged with the actual amount he sold (46.4 grams or slightly less
than less than two ounces).
We review the application of the sentencing guidelines de
novo. United States v. Edwards,65 F.3d 430 (5th Cir. 1995). A
district court may attribute to a defendant convicted of possession
with intent to distribute the amount of an unconsummated
transaction, unless the defendant did not intend or was not
reasonably capable of producing that amount. United States v.
Garcia, 889 F.2d 1454, 1457 (5th Cir. 1989), cert. denied, 494 U.S.
1088 (1990). In this case, Davis has offered no testimony to
support his contention that he did not intend to sell Wilson two
ounces or that he was not capable of doing so. We therefore affirm
the district court's decision to use the negotiated amount.
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IV
We thus hold, based on all of the evidence available for the
district court's consideration, that the determination that seven
ounces of crack cocaine were attributable to Davis was not clearly
erroneous. The sentence of Joe Drell Davis is therefore
A F F I R M E D.
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United States v. Davis
Court: Court of Appeals for the Fifth Circuit
Date filed: 1996-02-08
Citations: 76 F.3d 82
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