United States v. Green

United States Court of Appeals
For the First Circuit

No. 04-1225

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD GREEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Circuit Judge,

Cyr and Stahl, Senior Circuit Judges.

Edward W. Wayland and Perry, Krumsiek & Wayland, LLP on brief
for appellant.
Michael J. Sullivan, United States Attorney, John A. Wortmann,
Jr., Assistant United States Attorney, and Virginia M. Vanderjagt,
Assistant United States Attorney, on brief for appellee.

October 18, 2005
 CYR, Senior Circuit Judge. Richard Green appeals the

sentence imposed following his conviction for distributing cocaine

base, 21 U.S.C. § 841, and theft of government property, 18 U.S.C.

§ 641. After the parties filed their appellate briefs, the United

States Supreme Court held that the federal sentencing guidelines

are advisory, rather than mandatory. United States v. Booker, 125

S. Ct. 738 (2005); see United States v. Antonakopolous, 399 F.3d

68, 75 (1st Cir. 2005). The government now acknowledges that this

case must be remanded for resentencing, inasmuch as there is a

“reasonable probability” that the district court would impose a

more lenient sentence under the post-Booker regime. Id.

In sentencing Green pursuant to the mandatory guidelines,

however, the district court increased, by five grams, the amount of

crack cocaine for which Green would be held accountable, in

reliance upon information provided by five confidential informants

(“CIs”). In his original appellate brief Green maintained that

this hearsay evidence is inherently unreliable for sentencing

purposes. Following the Booker decision, however, Green requested

that we bypass that contention on the ground that it is moot under

the new “advisory” guidelines regime. Booker does not moot this

argument, however, inasmuch as the district court must still

consult the guidelines as one among several factors in resentencing

Green after remand. See United States v. Gorsuch, 404 F.3d 543,

545 (1st Cir. 2005). Whether the sentencing guidelines are

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advisory or mandatory has no bearing on whether a particular piece

of evidence relied on by the district court was inherently

unreliable.

The record on appeal nonetheless discloses that Green’s

argument regarding the unreliability of the CIs’ statements lacks

merit. In ascertaining drug quantity for sentencing purposes, the

district court may make reasoned estimates based upon the available

information. See United States v. Ventura, 353 F.3d 84, 88 (1st

Cir. 2003), cert. denied, 541 U.S. 980 (2004). We review the

district court's findings of fact, at sentencing, solely to

determine whether it committed clear error in ascertaining that the

government has established the disputed fact by a preponderance of

the evidence. See United States v. Luciano, 414 F.3d 174, 180 (1st

Cir. 2005). Moreover, the district court may consider all the

evidence, even if inadmissible under the Federal Rules of Evidence,

provided that the information has “sufficient indicia of

reliability to support its probable accuracy." U.S.S.G. §

6A1.3(a); see United States v. Lopez, 299 F.3d 84, 89 (1st Cir.

2002). Finally, the district court possesses “broad discretion” in

determining whether evidence is sufficiently reliable for

sentencing purposes. United States v. Whiting, 28 F.3d 1296, 1304

(1st Cir. 1994).

The district court neither committed clear error nor

abused its discretion in determining that Green should be held

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accountable for at least five additional grams of cocaine base. At

trial, the government adduced ample evidence, derived during its

extended investigation of the crack cocaine trafficking operation

at the Franklin Hall Housing Project in Dorchester, Massachusetts.

On September 19, 2001, Green was arrested when he sold .6 grams of

crack cocaine to a cooperating witness, who carried a "wire" for

purposes of recording the transaction. Ten days later, the police

observed Green and his confederate, Marcus Miller, as they were

entering an apartment at the project. Miller was arrested, upon

departing the apartment, in possession of 1.85 grams of crack

cocaine packaged in small quantities for resale. Miller shouted

out a code, presumably to warn Green of the police presence, and to

prevent the latter's arrest. Subsequently, Green bailed Miller out

of jail, and advised the arresting officer that he and Miller had

“slipped up” by not circling the block to check for police

surveillance before entering the apartment. On January 9, 2002,

Green attempted to sell 2.4 grams of crack cocaine to the

cooperating witness, whereupon he was arrested.

The presentence report (PSR) stated that 7.35 grams of

crack cocaine had been sold, either by Green or Miller, in

transactions dating from September 9, 2001 to January 9, 2002, and

that 41.75 grams were seized from Green’s apartment at the time of

his arrest on the latter date, for a total drug quantity of 49.1

grams. Thus, the government only needed to establish an additional

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.9 grams to place Green within the 50-150 gram range, which would

result in a base offense level of 32 under the guidelines.

U.S.S.G. § 2D1.1(c)(4). To that end, the government relied upon

the PSR’s description of information provided by five CIs: (i)

Green was the head of the crack cocaine distribution network at the

housing project, and he employed several distributors (e.g.,

William Carr and Henry Williams); (ii) on a weekly basis, Green

picked up and transported a kilo of crack cocaine to supply his

network; (iii) Green maintained “stash houses” (e.g., “60 Hazelton

Street”) near the project in order to store these larger quantities

of crack pending their sale; (iv) Green disbursed the cocaine to

his distributors for sale on the project premises; (v) Green sold

CI-3 four grams of crack per month for a year; and (vi) Green had

sold up to 4 ounces of crack on ten occasions to CI-5 during a one-

year period.

The sentencing court is permitted to rely upon hearsay

statements of confidential informants, provided that the

information possesses “sufficient indicia of reliability to support

its probable accuracy.” U.S.S.G. § 6A1.3(a); see United States v.

Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992); see also United

States v. Galbraith, 200 F.3d 1006, 1011-12 (7th Cir. 2000). The

burden of proof placed upon the government is not onerous. See

Tardiff, 969 F.2d at 1287 (describing the “reliability” standard as

a “generous formulation”); see also United States v. White, 360

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F.3d 718, 720 (7th Cir. 2004) (noting that sentencing court may

even rely on statements “from an admitted liar, convicted felon, or

large scale drug-dealing, paid government informant”) (citation

omitted); United States v. Lopez, 100 F.3d 113, 120 (10th Cir.

1996) ("Hearsay statements need only contain minimal indicia of

reliability to be used at sentencing.") (emphasis added).

Not only are the five CI statements in this case

sufficiently detailed, internally consistent, and mutually

corroborative, but they are entirely compatible with the other

information adduced at trial and summarized in the PSR. Cf. United

States v. Robinson, 164 F.3d 1068, 1070-71 (7th Cir. 1999) (finding

CIs’ statements nonsensical, hence unreliable). For instance, the

CIs identified – by name – specific individuals who worked for

Green and were later convicted for drug trafficking (e.g., William

Carr and Henry Williams), as well as a particular off-project

address used by Green as a stash house (e.g., “60 Hazelton

Street”), and confirmed that Green’s trafficking network averaged

one kilo per month. Green’s recorded telephone conversations

corroborate the CIs’ information; Green stated that the police

“prematurely” arrested him with a significantly lesser quantity of

drugs (viz., .6 grams) than he had on hand at the time of his

September 2001 arrest. CI-3 himself stated that he had purchased

48 grams of crack cocaine from Green over a one-year period, well

in excess of the .9 grams which would place Green in the 50 to 150

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gram range, resulting in a base offense level of 32.

Accordingly, in these circumstances the district court

acted well within its “broad discretion” in determining that the

statements of the five CIs, contained in the PSR, were sufficiently

reliable to establish that Green was responsible for at least .9

more grams of crack cocaine than he had been convicted of selling.

See Whiting, 28 F.3d at 1304.

Accordingly, the sentence is hereby vacated, and the case

is remanded for resentencing in light of United States v. Booker,

125 S. Ct. 738 (2005), for the reasons stated herein.

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