United States v. Kurt Maxshure , 579 F. App'x 136 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4831
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UNITED STATES OF AMERICA
v.
KURT MAXSHURE,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 11-cr-00185)
District Judge: Honorable Maurice B. Cohill, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
September 11, 2014
Before: FISHER, JORDAN and HARDIMAN, Circuit Judges.
(Filed: September 16, 2014)
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OPINION
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HARDIMAN, Circuit Judge.
Kurt Maxshure pleaded guilty to federal drug charges and was sentenced to 235
months’ imprisonment and five years of supervised release. He appeals the District
Court’s calculation of the drug quantity that determined his base offense level under the
United States Sentencing Guidelines (USSG). We will affirm.
I
Maxshure was arrested as part of a DEA investigation into Pittsburgh-area cocaine
distribution that involved extensive wiretap and police surveillance. On July 15, 2011,
police observed three men park a semitrailer truck, fill gym bags with the contents of the
truck, and place the gym bags in a nearby shed. They then observed Maxshure pull up in a
Honda Accord and park next to the truck as the gym bags were retrieved from the shed
and placed in the trunk of Maxshure’s car.
After leaving the scene, Maxshure was heard on the wiretap discussing a meeting
place where he could sell cocaine to co-defendant Darnell Edge. Maxshure suggested
they meet at a home on Lincoln Avenue, but ultimately agreed to meet Edge on a nearby
corner. Police observed Maxshure entering the home and reemerging with a gym bag
before meeting with Edge. They watched as a bag was transferred from Edge’s truck to
Maxshure’s car, and as another bag was transferred from Maxshure’s car to Edge’s truck.
Shortly thereafter, Maxshure was arrested. DEA agents retrieved the gym bag from his
car, which contained $399,950, and they found another $4,000 in his glove compartment.
Around the same time, Edge was arrested. DEA agents retrieved the gym bag in his truck
and found that the bag contained 15 kilograms of cocaine. They also searched the Lincoln
Avenue home and seized a money counting machine, a cocaine press (which renders the
cocaine in brick form), and a gym bag identical to the bag Edge had in his truck. The bag
2
contained four bricks of cocaine of one kilogram each and a fifth brick that amounted to
slightly less than a kilogram.
Maxshure was charged, along with numerous other co-defendants, with one count
of conspiracy to distribute and possess with intent to distribute at least five kilograms of
cocaine. At the time of his arrest, Maxshure stated: “You only caught me with the
money.” A105. At his initial appearance on July 18, 2011, however, after the District
Court had warned Maxshure of his right to remain silent, Maxshure called over a DEA
agent and confessed: “We’re guilty. You got us. I’ll plead tomorrow. What do you want
me to do. I’ll plead guilty tomorrow. What do you want me to do.” A144. On September
3, 2013, Maxshure withdrew his original not-guilty plea and pleaded guilty to the charge.
In Maxshure’s Presentence Investigative Report (PSR), the U.S. Probation Office
determined that he had conspired to distribute at least 150 kilograms of cocaine. This
resulted in a base offense level of 38 pursuant to USSG § 2D.1(c)(1), and, after a 2-level
reduction for acceptance of responsibility, a total adjusted offense level of 36.
Maxshure’s criminal history category was III, yielding an advisory Guidelines range of
235 to 293 months’ imprisonment.
Maxshure contested the quantity of cocaine calculated in the PSR, arguing that the
maximum amount that could be attributed to him was the 15 kilograms that were seized
from Edge at the time of their arrest. The Government countered that it had sufficient
evidence to corroborate the 150-kilogram calculation.
3
At sentencing, the District Court considered the PSR as well as the testimony of
two of Maxshure’s co-defendants—a customer and a supplier—who testified to
Maxshure’s involvement in the cocaine distribution conspiracy at an earlier suppression
hearing.1 Edge, the customer, testified that, in addition to the 15 kilograms he received
from Maxshure on the day of his arrest, he had received an average of ten kilograms per
month from Maxshure over the span of seven or eight months, and six kilograms in two
deals with Maxshure prior to that period. Edge also testified that Maxshure had told him
he could obtain 50 to 75 more kilograms of cocaine in the future.
Marco Valenzuela Bonilla, Maxshure’s supplier and co-defendant, testified that on
the day of his arrest—the same day that Maxshure and Edge were arrested—he had
delivered 25 kilograms of cocaine to Maxshure. He stated that he had brought Maxshure
at least 25 kilograms of cocaine once or twice a month between September 2009 until
they were arrested in July 2011, and that in December 2010, “an unusual month,” he
delivered between 80 and 90 kilograms. A173-74. Moreover, Bonilla testified that he had
met Maxshure through Reynaldo Lopez Salinas, who told Bonilla he had been providing
Maxshure with cocaine for at least a year before that. Bonilla’s testimony alone
implicated at least 600 kilograms of cocaine.
The District Court accepted the PSR’s determination that Maxshure was involved
1
At the change of plea hearing, the District Court granted the Government’s motion to
incorporate witnesses’ testimony from the suppression hearing the previous day.
4
in the sale of at least 150 kilograms of cocaine, and sentenced Maxshure to 235 months’
imprisonment—the bottom of the Guidelines range—followed by five years of supervised
release. This timely appeal followed.
II2
On appeal, Maxshure contests the District Court’s calculation of the drug quantity
that determined his base offense level and its reliance on the testimony of his two co-
defendants.
We review the sentencing court’s factual determination of the drug quantity for
clear error. United States v. Sau Hung Yeung, 241 F.3d 321, 322 (3d Cir. 2001). That
determination must be supported by a preponderance of the evidence. See United States v.
Grier, 475 F.3d 556, 561 (3d Cir. 2007) (en banc) (“Under an advisory Guidelines
scheme, district courts should continue to make factual findings by a preponderance of
the evidence and courts of appeals should continue to review those findings for clear
error.”) (discussing United States v. Booker, 543 U.S. 220 (2005)).
The Federal Rules of Evidence do not apply in sentencing hearings. Fed. R. Evid.
1101(d)(3). Therefore, a sentencing court may rely on hearsay evidence if that evidence
has “sufficient indicia of reliability to support its probable accuracy.” USSG § 6A1.3. In
doing so, “[w]e recognize that in calculating the amounts involved in drug transactions,
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
5
some degree of estimation must be permitted.” United States v. Collado, 975 F.2d 985,
998 (3d Cir. 1992).
Under Section 1B1.3 of the Sentencing Guidelines, a sentencing court must
consider “relevant conduct” when determining the drug quantity that in turn determines a
defendant’s base offense level. Conduct “relevant” to a “jointly undertaken criminal
activity,” includes “all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B). Therefore, relevant
conduct includes any “amounts of drugs possessed, distributed, manufactured, sold, or
otherwise ‘handled’ by persons other than the defendant in the calculation of the
defendant’s base offense level.” Collado, 975 F.2d at 990-91. “[W]hether a particular
defendant may be held accountable for amounts of drugs involved in transactions
conducted by a co-conspirator depends upon the degree of the defendant’s involvement in
the conspiracy and . . . reasonable foreseeability with respect to the conduct of others
within the conspiracy.” Id. at 992.
Our review of the record leads us to conclude that the District Court had a
sufficient basis to find that Maxshure conspired to distribute at least 150 kilograms of
cocaine. As noted above, Bonilla’s testimony alone implicated a quantity exceeding 600
kilograms. Moreover, the amount of cocaine Bonilla claimed he transported on the day of
the arrest—25 kilograms—corroborated his testimony about his monthly deliveries of 25
kilograms each, and is in turn corroborated by the fact that police caught Maxshure
6
selling 15 kilograms shortly thereafter, and found 5 more kilograms in the Lincoln
Avenue house he had originally suggested as a meeting place.
Maxshure argues on appeal that his co-conspirators’ testimony is insufficiently
detailed and is unreliable because of their interest in receiving more lenient sentences. We
disagree. Maxshure first contends that Edge and Bonilla “only testified as to ‘how much’
and ‘how often.’ There is no evidence of ‘when,’ ‘in what manner,’ ‘where,’ or any other
logistical information . . . simply how much cocaine per month.” Maxshure Reply Br. 6.
Unfortunately for Maxshure, “how much cocaine per month” was precisely the
information needed to determine the quantity of drugs attributable to him.
Maxshure also argues that because the quantities cited by Bonilla and Edge differ,
they “do not corroborate each other.” Maxshure Br. 13. Once again, we disagree.
Bonilla’s testimony that he supplied Maxshure with at least 25 kilograms per month over
two years corroborates Edge’s testimony that he purchased 15 kilograms per month from
Maxshure during this period. Moreover, five additional kilograms were found in the
Lincoln Avenue home, where Maxshure had suggested Edge meet him to purchase the
drugs, and from where Maxshure had emerged with a gym bag to meet Edge at the corner.
Edge’s testimony corroborates Bonilla’s, and vice versa. Corroboration in this context
does not require equivalency.
Finally, Maxshure argues that his co-defendants’ testimony is unreliable because
of their prior records, and because of their interest in minimizing their own sentences. In
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direct response to these arguments, the District Court stated:
Well, the arguments you are making, of course, apply any time to a
defendant in another case or a co-defendant. Let’s say those arguments are
standard.
The guys come in here and they got a record and they have everything to
gain by their testimony but I haven’t heard anything to contradict that
testimony either. . . .
I’m satisfied the conviction stands for . . . 150 kilos.
A191.3
We give great deference to the sentencing court’s assessments of witnesses’
credibility. See United States v. Brothers, 75 F.3d 845, 853 (3d Cir. 1996). Given the lack
of any inconsistencies in the co-conspirators’ testimony even after rigorous cross
examination, compare United States v. Miele, 989 F.2d 659, 664 (3d Cir. 1993) (finding
that indicia of reliability were lacking where the single witness to Miele’s drug possession
testified to two significantly different amounts of cocaine), we defer to the sentencing
court’s determination that there were sufficient indicia of reliability to accept their
testimony as true.4
3
The full transcript reflects that the District Court stated: “I’m satisfied the conviction
stands for 50 or more kilos of cocaine – 150 kilos.” A191. Maxshure argues that this was not
a clear finding and that we should therefore vacate and remand. We interpret this to be an
instance where the Court misspoke and promptly corrected itself.
4
The “indicia of reliability” standard is fairly low. See United States v. Paulino, 996
F.2d 1541, 1548 (3d Cir. 1993) (“An agent’s recital of events concerning discussions with a
reliable confidential informant, and recollection of a conversation relayed to another federal
agent working on the same case, meet the standard of minimum indicia of reliability.”).
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***
We find no clear error in the District Court’s determination that the quantity of
cocaine attributable to Maxshure was at least 150 kilograms. It follows that the judgment
of sentence must be affirmed.
9