United States v. Kendrick Crawford , 734 F.3d 339 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4531
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDRICK O’BRIAN CRAWFORD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:11-cr-00151-D-1)
Argued: September 18, 2013 Decided: November 1, 2013
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Wilkinson and Judge Motz joined.
ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, James E. Todd, Jr., Research and
Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
FLOYD, Circuit Judge:
Appellant Kendrick O’Brian Crawford appeals his sentence
for distributing crack cocaine in violation of 21 U.S.C.
§ 841(a)(1), contending that the district court erred by using
multiple hearsay evidence to determine the quantity of drugs
that Crawford sold. Finding no error, we affirm Crawford’s
sentence.
I.
On November 21, 2011, a grand jury returned a six-count
indictment charging Crawford with distributing 38.3 grams of
crack cocaine in violation of 21 U.S.C. § 841(a)(1). Crawford
pleaded guilty to these charges without the benefit of a plea
agreement. At sentencing, Crawford objected to the presentence
report’s (PSR) drug quantity calculation, which found him
responsible for 408.1 grams of crack cocaine “from at least 2003
until October 27, 2011.” This quantity stemmed from seven
controlled purchases that produced 38.5 grams of crack cocaine
and statements from at least three witnesses who purchased a
total of 369.6 grams of crack cocaine from Crawford. Crawford
argued that information that two paid informants—Veronica Ready
and Melanie Latta—supplied via telephone interviews to Chad
Nesbitt, an agent of the Bureau of Alcohol, Tobacco, Firearms
2
and Explosives who did not testify at Crawford’s sentencing
hearing, was not sufficiently reliable.
At Crawford’s sentencing hearing, Brunswick County
Sheriff’s Office Deputy Jeffrey Beck testified regarding Latta
and Ready. Beck explained that he had utilized Latta as a
confidential informant on five to ten occasions and said that
she was reliable and arrests had resulted from her information.
He stated that Latta had never provided him with false or
misleading information, and audio and video recordings had
verified her information in the past. Beck testified that
Nesbitt interviewed Latta on October 18, 2011, and she told him
that she had known Crawford for ten years and had purchased an
average of an eight-ball of crack cocaine from him every month
for the past six years, totaling 230.4 grams. Beck explained
that he took part in Latta’s first controlled purchase of crack
cocaine from Crawford, and it appeared that Latta and Crawford
knew each other. Beck also testified that, when officers
searched Crawford’s residence, they found a pistol matching a
description that Latta provided during the October 18 interview.
Beck acknowledged that Latta worked with law enforcement for
money and to reduce a crack cocaine charge and that her children
had been removed from her custody due to her crack cocaine
addiction.
3
Beck also testified regarding Ready and Nesbitt’s interview
with her, which took place on October 20, 2011. He explained
that Ready had provided information that had led to federal
prosecutions and that had been utilized in state and local
cases. Beck also testified that audio and video recordings had
verified Ready’s information on prior occasions and that she had
never provided false or misleading information. According to
Beck, Nesbitt told him that Ready said she had purchased
approximately ten grams of crack cocaine from Crawford in 2006
and approximately thirty grams of crack cocaine from him in
2007. After 2010, she purchased ten grams of crack cocaine from
Crawford. Beck acknowledged that, like Latta, Ready worked with
law enforcement for money and to “work off” a crack cocaine
charge.
At sentencing, the court found that Ready’s and Latta’s
information was sufficiently reliable to serve as the basis for
calculating Crawford’s drug quantity. Specifically, the court
noted that:
I do credit Jeff Beck, the agent who testified,
concerning his assessment of Ms. Latta and Ms. Ready
and their reliability during the course of various
investigations and his interaction with them.
I realize that Mr. Nesbitt is not here and it was
a phone interview of those two. I have taken that
into account.
Under 18 USC, Section 3661, of course, I can
consider hearsay. The evidence does need to be
reliable. The standard is preponderance and doing an
4
analysis under 2D1.1 for purposes of an advisory
Guideline calculation, I have taken that into account.
I do think that the weight attributed by these
folks is consistent with them being users. . . .
. . . So I do think that these two women have
provided truthful information that is reliable,
particularly in light of the other information that
Agent Beck has provided during his testimony, which I
found credible.
The district court deviated from the PSR and found that
Crawford’s relevant conduct period began in October 2005, not
2003. The court consequently attributed 321.9 grams of crack
cocaine to Crawford, including 38.3 grams from the six offenses
of conviction and 283.6 grams that Ready, Latta, and drug dealer
Lionel Lewis described. * This amount produced a base offense
level of 32. To this base level, the court added a two-level
enhancement for possession of a firearm and a three-level
reduction for acceptance of responsibility. With a final
offense level of 31 and a criminal history category of III,
Crawford’s sentencing range under the U.S. Sentencing Guidelines
was 135 to 168 months’ imprisonment. The court imposed a 135-
month prison term.
Crawford now appeals his sentence, alleging that it is
procedurally unreasonable because the district court utilized
*
Beck was present at Lewis’s debriefing, during which Lewis
explained that he had purchased one eight-ball of crack cocaine
from Crawford within the past year. Crawford does not dispute
the district court’s inclusion of this amount in his drug
quantity.
5
unreliable multiple hearsay evidence. Crawford also contends
that the use of multiple hearsay evidence violated his Sixth
Amendment confrontation right. We have jurisdiction pursuant to
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
We evaluate the district court’s sentence “under an abuse-
of-discretion standard, which translates to review for
‘reasonableness.’” United States v. Mendoza-Mendoza, 597 F.3d
212, 216 (4th Cir. 2010) (quoting United States v. Booker, 543
U.S. 220, 261-62 (2005)). Sentences must be both procedurally
and substantively reasonable. See id. On appeal, Crawford
contends that his sentence is procedurally unreasonable because
the government did not present “sufficiently reliable evidence
to support the quantity of drugs attributed to [him] by the
court.” “We review the district court’s calculation of the
quantity of drugs attributable to a defendant for sentencing
purposes for clear error.” United States v. Slade, 631 F.3d
185, 188 (4th Cir. 2011) (quoting United States v. Randall, 171
F.3d 195, 210 (4th Cir. 1999)) (internal quotation marks
omitted). Under this clear error standard, we will reverse the
district court’s finding only if we are “left with the definite
and firm conviction that a mistake has been committed.” United
States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (quoting
6
In re Mosko, 515 F.3d 319, 324 (4th Cir. 2008)) (internal
quotation marks omitted).
Pursuant to the Sentencing Guidelines, sentencing courts
must consider relevant conduct in calculating a defendant’s
advisory sentencing range, including “all acts and omissions
. . . that were part of the same course of conduct or common
scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2). The Sentencing Guidelines make it clear that
“[w]here there is no drug seizure or the amount seized does not
reflect the scale of the offense, the court shall approximate
the quantity of the controlled substance.” Id. § 2D1.1 cmt.
n.5. This Court has specified, however, that “when the
approximation [of drug quantity] is based only upon ‘uncertain’
witness estimates, district courts should sentence at the low
end of the range to which the witness testified,” United States
v. Bell, 667 F.3d 431, 441 (4th Cir. 2011) (quoting United
States v. Sampson, 140 F.3d 585, 592 (4th Cir. 1998)), as the
district court did in this case.
When determining facts relevant to sentencing, such as an
approximated drug quantity, the Sentencing Guidelines allow
courts to “consider relevant information 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.
7
§ 6A1.3(a). Accordingly, “[f]or sentencing purposes, hearsay
alone can provide sufficiently reliable evidence of [drug]
quantity.” United States v. Uwaeme, 975 F.2d 1016, 1019 (4th
Cir. 1992); see also Bell, 667 F.3d at 441 (explaining that
courts may rely on “hearsay testimony of lay witnesses as to the
quantities attributable to a defendant”); United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010) (“[A] sentencing
court may give weight to any relevant information before it,
including uncorroborated hearsay, provided that the information
has sufficient indicia of reliability to support its
accuracy.”). We therefore need not vacate Crawford’s sentence
because the district court used hearsay evidence to calculate
his drug quantity, assuming that the court did not clearly err
in finding the evidence reliable.
Other than his meritless contention that multiple hearsay
evidence is per se unreliable, Crawford makes three primary
arguments that Beck’s recounting of Nesbitt’s interviews with
Latta and Ready is not reliable evidence of drug quantity.
First, Crawford avers that the evidence simply establishes that
Crawford dealt drugs, not the quantity of drugs that the court
attributed to him. Although the district court did emphasize
that “there clearly was a relationship, which certainly is a
relationship between drug dealer and drug user, and Mr. Crawford
is certainly a drug dealer, crack dealer,” it did so to explain
8
why it found Latta’s information credible. In other words, the
court did not dwell on Crawford’s relationship with Latta to
establish that he was a drug dealer; it did so because this
relationship showed that Latta had first-hand knowledge of the
drug quantity attributable to Crawford. Because Latta and Ready
certainly provided information regarding drug quantity,
Crawford’s argument that the evidence shows only that he dealt
drugs lacks merit.
Second, Crawford contends that the telephone is an
inherently unreliable form of communication, which “simply
cannot provide the same dynamics to probe the accuracy and
credibility of an informant as a face-to-face interview does.”
However, this Court has never held that receiving information
via telephone renders that information per se unreliable, and
our sister circuits have refuted this argument in other
contexts. See, e.g., Li Zhou v. Gonzales, 155 F. App’x 359,
360 (9th Cir. 2005); Doby v. DeCrescenzo, 171 F.3d 858, 872 (3d
Cir. 1999). We therefore reject Crawford’s argument that the
district court erred by using telephone calls as a basis for
calculating Crawford’s drug quantity.
Third, Crawford argues that Latta’s and Ready’s statements
are unreliable because they are drug users who cooperated with
law enforcement officials to “work off” pending felony charges.
However, although the fact-finder can consider a witness’s
9
status as a drug user or criminal history in assessing his or
her credibility, this Court has not found that these attributes
render a witness per se unreliable. See Pigford v. United
States, 518 F.2d 831, 836 (4th Cir. 1975); see also United
States v. Cooke, 141 F.3d 1160 (4th Cir. 1998) (unpublished
table decision) (rejecting a rule requiring courts to make
special findings regarding the reliability of drug addicts and
stating that “[a]ll a district court must do is make factual
findings . . . concerning the evidence that is presented before
it. Implicit in those factual findings is a finding of the
reliability of the evidence upon which the findings are
based.”); United States v. Galloway, 878 F.2d 1431 (4th Cir.
1989) (unpublished table decision) (“The fact that a witness to
a drug deal is himself a convicted criminal and/or a drug user,
although a factor to be assessed by the jury in weighing
credibility, does not make his testimony unreliable as a matter
of law.”). In fact, this Court has allowed a drug-addicted
witness’s estimate to serve as the sole basis for calculating
drug quantity. United States v. Benehaley, 281 F.3d 423, 425
(4th Cir. 2002). We therefore conclude that Latta’s and Ready’s
drug use and criminal history does not render them inherently
untrustworthy, and the district court retained the discretion to
weigh these factors in assessing their credibility.
10
In light of Beck’s testimony, the district court did not
err in relying on Latta’s and Ready’s information to determine
Crawford’s drug quantity for sentencing purposes. Beck
testified regarding the women’s previous reliability, explained
that he had been able to verify their past information, and
stated that their information had been used in obtaining arrests
and prosecutions. Beck had also observed Latta conducting a
controlled purchase of drugs from Crawford and saw that they had
a relationship. The court explicitly acknowledged that the
information was multiple hearsay and that the women were drug
addicts before finding Beck’s testimony and Latta’s and Ready’s
information reliable. We therefore conclude that the district
court did not abuse its discretion in calculating Crawford’s
drug quantity for sentencing purposes.
III.
Crawford also argues that the district court’s
consideration of multiple hearsay violated his Sixth Amendment
right to confrontation. Crawford acknowledges that this
argument lacks merit because this Court has held that the
Confrontation Clause does not apply at sentencing hearings. See
United States v. Powell, 650 F.3d 388, 393 (4th Cir. 2011). In
light of this precedent, the use of multiple hearsay did not
violate Crawford’s Sixth Amendment rights.
11
IV.
For the foregoing reasons, we hold that the district
court’s use of multiple hearsay evidence to calculate Crawford’s
drug quantity does not render his sentence unreasonable. We
therefore affirm his sentence.
AFFIRMED
12