UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50564
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
TERRY S. HUSKEY,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
March 17, 1998
Before REYNALDO G. GARZA, DUHÉ and STEWART, Circuit Judges
JOHN M. DUHÉ, JR., Circuit Judge:
Defendant-Appellant Terry Huskey (“Huskey”) appeals the
district court’s calculation of his sentence. For the reasons that
follow, we find that the district court did not commit clear error
in assessing the amount of marijuana attributable to Huskey. But,
because we find that the district court erroneously calculated
Huskey’s criminal history score, we must remand for resentencing.
BACKGROUND
Huskey pled guilty to conspiracy to possess marijuana with
intent to deliver, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) and 846. Huskey had been a member of an organization
that, from 1992 to 1996, trafficked large amounts of marijuana
across the country.
Huskey was sentenced in June, 1997. In calculating Huskey’s
criminal history score under U.S.S.G. §§ 4A1.1-.2, the district
judge relied on two prior sentences, imposed by a Kansas state
court, for theft and attempted possession of cocaine. Those
sentences arose from the following events.
On February 9, 1990, Kansas police found 21 stolen antique
guns in the trunk of a vehicle owned by Huskey’s wife. Police also
found marijuana, marijuana cigarettes and cocaine in Huskey’s
residence. Huskey was charged with theft, possession of marijuana,
and attempted possession of cocaine. All three charges were
presented in the same criminal information under cause number 90-
CR-0292; there was, however, no formal order consolidating the
charges. Huskey was sentenced for all three counts on the same day
and given one year imprisonment for the marijuana offense, one to
five years imprisonment for the cocaine offense, and one to three
years imprisonment for the theft offense, with the sentences to run
concurrently. The Kansas records do not indicate that separate
judgments with separate numbers were issued. Huskey was released
and placed on probation for the offenses on September 3, 1992, and
finally discharged on November 8, 1993.
In sentencing Huskey for the instant offenses, the district
judge found that the Kansas sentences had been imposed in
“unrelated cases.” See U.S.S.G. § 4A1.2(a)(2). Thus, the judge
assessed Huskey criminal history points separately for each Kansas
2
offense1 -- three for the cocaine and three for the theft. See
U.S.S.G. § 4A1.1(a).2 Three additional points were added to that
subtotal because Huskey engaged in the charged drug conspiracy
while he was under state sentences and after his release from
imprisonment on those same sentences. See U.S.S.G. §§ 4A1.1(d) and
(e). The judge thus assessed a total of nine criminal history
points to Huskey, placing him in criminal history category IV. See
Sentencing Table, Ch.5 Pt.A. Based on the amount of marijuana
found attributable to Huskey (see U.S.S.G. § 1B1.3; see also
discussion infra at II) and various other adjustments, Huskey’s
offense level was computed to be 33 (see U.S.S.G. § 2D1.1(a)), with
a corresponding category IV range of 188-235 months. Huskey was
sentenced to 192 months.
DISCUSSION
I.
Huskey contends that the Kansas sentences were imposed in
“related cases” and therefore should not have been counted
separately in assessing criminal history points. He argues that,
because the three charges were presented in the same criminal
information under the same docket number, the sentences therefore
“resulted from offenses that ... were consolidated for trial or
1
“Prior sentences imposed in unrelated cases are to be counted
separately. Prior sentences imposed in related cases are to be
treated as one sentence for purposes of §4A1.1(a), (b), and (c).”
U.S.S.G. §4A1.2(a)(2).
2
No criminal history points were added for the marijuana
offense. But see U.S.S.G. § 4A1.1(b). As our disposition of the
question will make clear, however, we need not decide whether this
was error. See discussion infra at I(A).
3
sentencing.” U.S.S.G. § 4A1.2, comment. (n.3). Huskey, then,
argues he should only have had six criminal history points, placing
him in category III with a range of 168-210 months. See Sentencing
Table, Ch.5 Pt.A.
We accept district court fact findings relating to sentencing
unless clearly erroneous, but we review de novo application of the
guidelines. United States. v. Fitzhugh, 984 F.2d 143, 146 (5th
Cir. 1993). We review the district court’s determination of
relatedness under § 4A1.2(a)(2) de novo. Id. at 146-47; see also
United States v. Garcia, 962 F.2d 479, 481 (5th Cir. 1992).
A.
As stated above, in computing criminal history points, prior
sentences in unrelated cases are counted separately; prior
sentences in related cases are treated as one sentence. See
U.S.S.G. § 4A1.2(a)(2). The guidelines commentary observes that:
[p]rior sentences are not considered related
if they were for offenses that were separated
by an intervening arrest (i.e., the defendant
is arrested for the first offense prior to
committing the second offense). Otherwise,
prior sentences are considered related if they
resulted from offenses that (1) occurred on
the same occasion, (2) were part of a single
common scheme or plan, or (3) were
consolidated for trial or sentencing.
U.S.S.G. § 4A1.2, comment. (n.3). The cocaine and the stolen
weapons were merely discovered on the same day by the Kansas
police; there is no evidence in the record from which we can
deduce that the offenses either “occurred on the same occasion” or
were “part of a single common scheme or plan.” Thus, for Huskey to
prevail, the offenses must have been “consolidated for trial or
4
sentencing” within the meaning of § 4A1.2, comment. (n.3).
We have never squarely addressed in this Circuit whether,
absent a formal order of consolidation, charging separate offenses
in the same information under the same docket number nonetheless
“consolidates” the offenses and thereby makes them “related” under
§ 4A1.2(a)(2). Language from our prior cases is instructive,
however.
In United States v. Metcalf, 898 F.2d 43 (5th Cir. 1990), we
rejected the defendant’s argument that his sentences for two prior
burglaries were related under § 4A1.2(a)(2) because they ran
concurrently and were imposed on the same day. Id. at 45-6. Judge
King wrote that:
... in United States v. Flores, we rejected an
assertion that cases are consolidated for
sentencing under the Guidelines “[s]imply
because two convictions have concurrent
sentences.” Moreover, we do not believe that
sentencing on two distinct cases on the same
day necessitates a finding that they are
consolidated. Here, the 1982 and 1983
offenses proceeded to sentencing under
separate docket numbers and there was no order
of consolidation.
Id. at 46 (citations omitted)(emphasis added).
We confronted a similar argument in United States v. Gipson,
46 F.3d 472 (5th Cir. 1995). There the defendant argued that his
seven prior robbery convictions were related under § 4A1.2(a)(2)
because they were all “sustained” on the same day in the same
judgment of conviction. Id. at 476. Rejecting that contention,
Judge Smith observed:
[a]ll but two of the robberies had separate
case numbers when they went to trial and
5
judgment, which indicates that at most the two
robberies sharing the same case number had
been consolidated for judgment.
Id. (emphasis added). See also United States v. Ainsworth, 932
F.2d 358, 361 (5th Cir. 1991).
Thus, dicta from our case law strongly imply that offenses
charged under the same docket number have been “consolidated” even
absent a formal order of consolidation. Sentences for such charges
therefore proceed from “related cases” within the meaning of §
4A1.2(a)(2). Decisions from other Circuits provide further support
for that position.
In United States v. Alberty, 40 F.3d 1132 (10th Cir. 1994),
the Tenth Circuit was called upon to decide whether the defendant’s
two prior juvenile offenses were related because he was sentenced
to identical concurrent terms on the same day. Id. at 1134. The
record was unclear as to whether there had been a formal order
consolidating the charges. Id.
The court began its analysis by observing that prior offenses
are generally considered related when an “express judicial order of
either consolidation or transfer” brings them before the same
court. Id., citing United States v. Chapnick, 963 F.2d 224, 229
(9th Cir. 1992), and United States v. Delvecchio, 920 F.2d 810, 812
(11th Cir. 1991). The court observed, however, that, under its own
precedent, a formal judicial order was “sufficient, but not
necessary, to permit a finding that prior cases were ‘consolidated
for sentencing.’” Alberty, 40 F.3d at 1134, citing United States
v. Gary, 999 F.2d 474, 479-80 (10th Cir. 1993), and United States
6
v. Villareal, 960 F.2d 117, 119-21 (10th Cir. 1992). Without
addressing what other circumstances might lead to a finding of
“relatedness,” the court found that Alberty had not demonstrated
that his two prior offense were related. Alberty, 40 F.3d at 1135.
Primarily, the court relied on the sentencing judge’s finding that
the two juvenile convictions were handled on the same day merely
for judicial convenience. Id.3 But the court added:
Moreover, the fact that Mr. Alberty received
concurrent sentences on both offenses does not
mandate a contrary finding ... especially when
the two charges retained separate docket
numbers.
Id. (citations omitted)(emphasis added).
In United States v. Stalbaum, 63 F.3d 537 (7th Cir. 1995), the
Seventh Circuit considered whether three prior misdemeanors for
which the defendant had been sentenced to identical concurrent
terms in the same proceeding were related. Id. at 538. As in
Alberty, supra, there was no formal order of consolidation. Id.
The court noted initially that the Seventh Circuit had already
rejected the government’s position that a formal order of
3
The court seemed to be reviewing the district court’s factual
determinations regarding relatedness under a “clearly erroneous”
standard. Id.(“In this case, however, even in the absence of a
formal order, the district court’s finding that Mr. Alberty’s two
prior offenses were unrelated is not clearly erroneous.”).
Earlier, the court had observed that while it would use the clearly
erroneous standard for factual determinations, it would “exercise
plenary review over the district court’s legal conclusions
regarding the application and interpretation of the Guidelines.”
Id. at 1133 (citations omitted). We do not take issue with the
standard of review employed in Alberty, however; we merely observe
that our Circuit has before struggled with the appropriate standard
to use when reviewing a district court’s determination of
“relatedness,” but has found that our precedent impels a de novo
review. See Garcia, 962 F.2d at 481 & n.6.
7
consolidation was a prerequisite to finding prior offenses related.
Id. at 539, citing United States v. Joseph, 50 F.3d 401, 403 (7th
Cir. 1995). But the court added that, lacking a formal
consolidation order, a defendant would be required to “show[] on
the record of the sentencing hearing that the sentencing judge
considered the cases sufficiently related for consolidation and
effectively entered one sentence for the multiple convictions.”
Stalbaum, 63 F.3d at 539, citing United States v. Russell, 2 F.3d
200, 204 (7th Cir. 1993).
The Stalbaum court partly relied on the fact that the
defendant’s prior offenses retained separate docket numbers as
evidence that the sentencing judge did not intend to consolidate
the offenses. Stalbaum, 63 F.3d at 539. The court reasoned that:
the sentencing judge retained each case’s
docket number and assessed a separate sentence
for each case. If he had considered them
consolidated (and wanted them to appear that
way on the record), he would have assigned one
docket number for this sentencing hearing and
assessed to Stalbaum one sentence.
Id. at 539-40 (emphasis added). See also id. at 539 (“As we
pointed out, each case retained its own docket number, and Stalbaum
received a separate, albeit concurrent, sentence for each crime.”).
The court thus found that the mere fact of concurrent sentences
being imposed in the same proceeding would not generate an
inference that the offenses had been effectively consolidated. Id.
At the same time, the court implied that merging separate offenses
under the same docket number might do so. Id. at 539-40.
Finally, in United States v. Allen, 50 F.3d 294 (4th Cir.
8
1995), the Fourth Circuit considered whether factually unrelated
offenses for which a defendant received in the same proceeding
separate, concurrent sentences are related, absent a formal order
of consolidation. Id. at 295. The court held that charges must be
“formally consolidated or [must] be joined in an indictment” to be
considered related under § 4A1.2(a)(2). Id. at 299. This bright-
line rule, reasoned the court, would vindicate two important
policies of the Sentencing Guidelines: to provide “reasonable
uniformity in sentencing” and to impose substantial prison terms on
repeat felony offenders. Id. at 297-98, citing, inter alia,
U.S.S.G. Ch.1 Pt.A, intro. comment. (n.3). The court observed that
a formal consolidation requirement would insure that only offenses
with some factual relationship would be considered “consolidated
for trial or sentencing.” Those offenses would therefore “have
some relationship to each other beyond the happenstance of
simultaneous sentencing.” Id. at 298; see U.S.S.G. § 4A1.2,
comment. (n.3).
The court did not specifically consider whether charges
bearing the same docket number would satisfy its “formal
consolidation” test. The court did allude, however, not only to
“charges ... formally consolidated” but also to “charges ... joined
in an indictment.”4 Allen, 50 F.3d at 299. Earlier, when
4
The Allen court, however, seemed to equate “consolidation”
under Application Note 3 to U.S.S.G. § 4A1.2 with “joinder” under
FED.R.CRIM.P. 8. Thus, to find two offenses “joined in the same
indictment,” the court would have required that the offenses be “of
the same or similar character or [be] based on the same act or
transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan.” Allen,
9
summarizing the procedural history of Allen’s prior convictions,
the court stated that “[t]he state court did not enter an order
consolidating Allen’s charges for trial or sentencing and the
charges proceeded to sentencing under separate docket numbers.”
Id. at 296 (emphasis added). Arguably, then, merging separate
offenses under the same docket number is tantamount to “formal
consolidation” and would therefore satisfy Allen.5
Guided by the reasoning of our precedent and of other
Circuits, we conclude that Huskey’s prior Kansas convictions were
de facto “consolidated” by virtue of the fact that the charges
appeared in the same criminal information under the same docket
number. The sentences for those convictions therefore arose from
“related cases” within the meaning of U.S.S.G. § 4A1.2(a)(2) and
should not have been counted separately in determining Huskey’s
criminal history score. The district court erred in doing so.
Huskey should have been assessed six criminal history points,
50 F.3d at 298; see FED.R.CRIM.P. 8(a). The Allen court thus
interpreted the three categories of “relatedness” set out in
Application Note 3 to § 4A1.2 as “requiring either a factual
relationship between prior offenses” or a “consolidation order”
tantamount to a Rule 8(a) joinder. See Allen, 50 F.3d at 297.
5
See also United States v. Lopez, 961 F.2d 384, 386 (2d Cir.
1992)(“It is undisputed that the two offenses were assigned
separate docket numbers and were not subject to a formal order of
consolidation.”); United States v. McAdams, 25 F.3d 370, 374-75
(6th Cir. 1994)(relying, inter alia, on fact that all prior cases
“each bore an individual indictment number” in finding them
unrelated.); United States v. McComber, 996 F.2d 946, 947 (8th
Cir. 1993)(“sentences are not related for purposes of § 4A1.2(a)(2)
if the cases proceeded to sentencing under separate docket numbers,
and there was no formal order of consolidation.”); United States
v. Davis, 922 F.2d 1385, 1390-91 (9th Cir. 1991)(fact that cases
did not share single docket number was one indication that cases
were not “consolidated for sentencing.”)(emphasis added).
10
placing him in Category III. See Sentencing Table, Ch.5 Pt.A.
In sum, under our current law, neither of the following will
result in factually distinct offenses being considered related
under U.S.S.G. § 4A1.2(a)(2): sentencing on the same day and/or in
the same proceeding (Metcalf, 898 F.2d at 46); imposition of
identical, concurrent sentences (Ainsworth, 932 F.2d at 361;
Flores, 875 F.2d at 1114). What we hold today is that when
factually distinct offenses are charged in the same criminal
information under the same docket number, those offenses have been
“consolidated” (even in the absence of a formal consolidation
order) and are therefore related. Sentences flowing from such
consolidated cases should not be counted separately under §§
4A1.1-.2.
We believe these parameters adequately further the twin goals
of the Sentencing Guidelines as enunciated by the Allen court,
supra: to provide reasonable uniformity in sentencing and to impose
harsher punishments on defendants with especially checkered
criminal histories. See Allen, 50 F.3d at 297; U.S.S.G. Ch.1,
Pt.A, intro. comment. (n.3). Under our interpretation of
Application Note 3 to § 4A1.2, a finding that prior cases were
“consolidated” will require either some factual connexity between
them, or else a finding that the cases were merged for trial or
sentencing. See United States v. Watson, 952 F.2d 982, 990 (8th
Cir. 1991).6
6
“The circumstances described by the first and second elements
of Application Note 3 to [§] 4A1.2 depend on the character of a
defendant’s criminal conduct. Therefore, they are distinct from
11
Although we applaud Allen’s persuasive reasoning, we do not
choose to adopt its per se rule that a formal order of
consolidation is, in every case, a prerequisite to finding
“consolidation.” See Allen, 50 F.3d at 298. While the Allen rule
would be easier to apply, we are not confident that it would be
supported by the varied methods of criminal docket management found
in state courts.7 We are simply not convinced that a state judge
will enter a formal consolidation order every time he intends to
treat two separate offenses as one. There are other ways a
district court can discern a state judge’s intention to do so; we
have merely identified one today -- merging two or more separate
offenses under a single docket number.
B.
The government argues that, even if the district judge erred
by not placing Huskey in category III, the error was harmless. The
government correctly points out that Huskey’s 192-month sentence
would also fall within the correct category III range of 168-210
months.8 Given the overlap in the two ranges, and the lack of
the third element, whose relevance depends upon whether the
determination of guilt or the imposition of punishment for two or
more of the defendant’s prior offenses were combined.” Watson, 952
F.2d at 990.
7
Additionally, in at least one case we implied that some form
of “informal consolidation” might be sufficient under § 4A1.2, if
supported by state law. See United States. v. Velazquez-Overa, 100
F.3d 418, 423-24 (5th Cir. 1996), cert denied, 117 S.Ct. 1283
(1997)(considering whether Texas law allows “informal
consolidation” of offenses).
8
Huskey was sentenced under a category IV range of 188-235
months, at an offense level of 33. See Sentencing Table, Ch.5 Pt.
A.
12
evidence that the district judge would have sentenced Huskey to
anything other than 192 months, the government contends that any
error in calculating his criminal history score does not
necessitate a remand for resentencing.
The Supreme Court has held that, when a court incorrectly
applies the sentencing guidelines, the proponent of the sentence
bears the burden of demonstrating that “the district court would
have imposed the same sentence absent the erroneous factor.”
Williams v. U.S., 503 U.S. 193, 203 (1992)(emphasis added); see
also 18 U.S.C. § 3742 (West 1985 & West Supp. 1998). In United
States v. Tello, 9 F.3d 1119 (5th Cir. 1993), we applied Williams
to a situation similar to the present one -- i.e., where the actual
sentence imposed was included in both the correct and the erroneous
guideline ranges. Id. at 1129. We stated that the proponent of a
sentence imposed under an erroneous guideline range must, to avoid
remand, “proffer sufficiently persuasive evidence to convince the
appellate court that the district court would have imposed the same
sentence, absent the error.” Id. at 1129-30, citing Williams, 503
U.S. at 202-03.
In Tello, the defendant had been sentenced to 57 months,
exactly in the middle of the erroneous range of 51 to 63 months.
Id. at 1130. The correct guideline range, however, was 46 to 57
months. Id. The actual sentence thus fell within both ranges, but
at the top of the correct range. In sentencing the defendant, the
district court only stated the range it was relying on and the
sentence it was imposing. Id. We found that the district judge’s
13
“simple, antiseptic comment[s]” did nothing to illuminate why he
imposed the particular sentence and, hence, did not support the
government’s position that he would have levied the same sentence
had no error occurred. Id. at 1130-31. We thus declined to deem
the error in Tello “harmless,” and remanded for resentencing, fully
aware that the district judge might impose the same 57-month
sentence on remand. Id. at 1131.
In support of leaving Huskey’s sentence undisturbed, the
government points out that his 192 months break down into sixteen
twelve-month intervals and that the judge could have sentenced
Huskey to the lowest end of the erroneous range (188 months) but
did not do so. Hence, posits the government, it is “obvious the
district court had a particular sentence in mind within the
applicable guideline range which it assessed.” We must disagree.
Mere speculation as to the sentencing judge’s motives will not
meet the burden imposed by Williams and Tello, supra, on the
proponent of the sentence. The government must point to evidence
in the record that will convince us that the district court had a
particular sentence in mind and would have imposed it,
notwithstanding the error made in arriving at the defendant’s
guideline range.9 Nothing in the record of Huskey’s sentencing
hearing supports the government’s contentions.
Nor does our independent review of the record reveal a basis
9
See Tello, 9 F.3d at 1131 (“That simple, antiseptic comment
reveals nothing about the court’s thought process in selecting 57
months or the fact that it was the mid-range position in the
incorrect sentencing range.”).
14
for affirming Huskey’s sentence. In sentencing Huskey, the
district judge only stated that he had reviewed the record, the PSR
and the other factors “required ... under the Sentencing Reform
Act of 1984.” He then imposed the 192-month sentence without
further comment.
We write none of this to impugn the sentencing judge’s
handling of Huskey’s sentencing hearing. Indeed, a review of the
hearing transcript plainly shows that the judge carefully
considered the arguments of counsel and arrived at a reasonable,
common-sense resolution of the “relatedness” issue.10 The judge’s
“error” was simply the fruit of unusual circumstances, combined
with a gap in the case law interpreting an opaque provision of the
sentencing guidelines. See, e.g., Stalbaum, 63 F.3d at 539 (“We
pause here to note the difficulty we encounter in applying this
provision [§ 4A1.2] and its ‘application note.’”).
Nonetheless, we can find no evidence in the record that
convinces us the trial judge would have imposed the same sentence,
absent the error in calculating Huskey’s criminal history score.
We must therefore remand the case for resentencing, cognizant that
the district judge may, in his discretion, impose on Huskey those
10
The distirct judge characterized § 4A1.2(a)(2) as intending
to punish more severely defendants with multiple-offense criminal
histories, and as not rewarding those defendants who, for mere
administrative convenience, were charged with multiple offenses in
the same indictment. Certainly, we cannot say this is an
unreasonable reading of § 4A1.2 and its Application Note 3. See
Allen, 50 F.3d at 297-98. The district judge, however, overlooked
the indications in cases such as Metcalf and Gipson (see discussion
supra Part I.A) that merging separate offenses under the same
docket number amounts to “consolidation” under the third category
of “relatedness” in Application Note 3 to § 4A1.2.
15
same 192 months.
II.
Huskey argues that the district court erred in using 8,000
pounds of marijuana to calculate his base offense level. He
contends the evidence shows that he received between 1,000 and
3,000 kilograms of marijuana in Kansas City between 1992 and 1994
from his source, Jamie Glover (“Glover”). In March, 1994, however,
Huskey claims a “rift”11 developed between him and Glover, after
which Glover no longer dealt with Huskey and instead delivered
marijuana to Danny Barnes (“Barnes”). Huskey maintains that there
is no evidence showing that any marijuana shipments thereafter
reached him, and that the court therefore erred in attributing to
him the entire amount of the 1992-1995 Kansas City shipments (8,000
pounds). In sum, Huskey contends he should only be held
responsible for the approximately 4,100 pounds of marijuana he
received directly from Glover between August, 1992 and March, 1994,
the amount for which he pled guilty.
In support of the 8,000 pound amount, the government offered
the testimony of Internal Revenue Service Special Agent John
Cornelius (“Cornelius”). Cornelius had debriefed the major
participants in the drug conspiracy and testified about its inner-
workings. He confirmed that from August, 1992 to March, 1994,
Huskey received from Glover approximately 4,100 pounds of
marijuana; Barnes generally took the deliveries for Huskey. After
11
The rift developed when Glover suspected Huskey of stealing
proceeds from marijuana sales.
16
the rift in March, 1994, Cornelius stated that Glover sent another
3,900 pounds to Kansas City. Barnes received these shipments also.
Crucially, Cornelius testified Barnes told him that he received all
8,000 pounds (including the 3,900 shipped after Huskey and Glover’s
disagreement) on behalf of Huskey. Based on Cornelius’s testimony,
the court attributed 8,000 pounds of marijuana to Huskey.12
We review the district court’s factual findings, such as the
quantity of drugs attributable to a defendant, for clear error.
United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991); United
States v. Manthei, 913 F.2d 1130, 1138 (5th Cir. 1990). In making
such a finding, the district judge may consider any information
that has “sufficient indicia of reliability to support its probable
accuracy,” including a probation officer’s testimony, a policeman’s
approximation of unrecovered drugs, and even hearsay. See U.S.S.G.
§ 6A1.3, p.s.; see also United States v. Cuellar-Flores, 891 F.2d
92, 93 (5th Cir. 1989); Angulo, 927 F.2d at 204-05; Manthei, 913
F.2d at 1138. Ultimately, the district court “need only determine
its factual findings at sentencing by a preponderance of the
relevant and sufficiently reliable evidence.” Angulo, 927 F.2d at
205 (citations and internal quotes omitted).
The “relevant conduct” for which Huskey may be sentenced
includes
12
Huskey’s base offense level was therefore 34. See U.S.S.G.
§ 2D1.1(c)(3)(Drug Quantity Table)(“At least 3,000 KG but less than
10,000 KG of Marihuana....”). According to Huskey’s argument, he
is responsible only for 1,000 to 3,000 KG of marijuana, giving him
a base offense level of 32. See U.S.S.G. § 2D1.1(c)(4)(Drug
Quantity Table).
17
all acts and omissions committed, aided,
abetted, counseled, commanded, induced,
procured, or willfully caused by the
defendant....
U.S.S.G. § 1B1.3(a)(1)(A). In attributing to Huskey the entire
amount of the 1992-1995 Kansas City shipments, the district judge
credited Cornelius’s, and implicitly Barnes’s, testimony that,
although a rift had developed around a year before the final
shipments, Barnes continued to take deliveries for Huskey.
Even before the March, 1994 rift, Barnes had taken deliveries
from Glover on Huskey’s behalf. Further, Cornelius testified that
Barnes was only a “small-time dealer,” who would have perhaps taken
only five pounds or so of marijuana per shipment. It appears
unlikely that Barnes absorbed all 3,900 pounds of marijuana sent to
Kansas City after March, 1994. In any event, it is undisputed
that, between 1992 and 1995, 8,000 pounds of marijuana arrived in
Kansas City, and that all of it was delivered to a person (Barnes)
who frequently took deliveries for Huskey. Only Huskey’s
uncorroborated testimony stands to the contrary.
The district judge chose to believe Barnes’s assertion that he
received the post-March, 1994 shipments of marijuana on Huskey’s
behalf. The district court has “broad discretion in considering
the reliability of the submitted information regarding the
quantities of drugs involved.” United States v. Martinez-
Moncivais, 14 F.3d 1030, 1039 (5th Cir. 1994). Such credibility
determinations rest within the province of the trier-of-fact.
United States v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989). Our
independent review of the record has not left us with the “definite
18
and firm conviction” that the sentencing judge erred in attributing
8,000 pounds of marijuana to Huskey. See United States v.
Mitchell, 964 F.2d 454, 457-58 (5th Cir. 1992).
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
factual findings as to the amount of marijuana attributable to
Huskey. We find, however, that the district court erred in
calculating Huskey’s criminal history score and therefore must
REVERSE and REMAND for resentencing.
AFFIRMED in part; REVERSED in part and REMANDED for
resentencing.
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