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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