United States v. Sumler ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4704
MELVIN SUMLER, a/k/a Clever,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4705
TRAMMEL LEWIS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4706
LESLIE BROCKINGTON, a/k/a Les,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-96-116)
Argued: May 4, 1998
Decided: June 26, 1998
Before WILKINSON, Chief Judge, WILKINS, Circuit Judge,
and BLAKE, United States District Judge for the
District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Steven D. Benjamin, Richmond, Virginia, for Appellant
Sumler; Douglas Patrick McGee, Richmond, Virginia, for Appellant
Lewis; Augustus S. Hydrick, Jr., for Appellant Brockington. Nicholas
Stephan Altimari, OFFICE OF THE UNITED STATES ATTOR-
NEY, Richmond, Virginia, for Appellee. ON BRIEF: Betty Layne
DesPortes, Richmond, Virginia, for Appellant Sumler. Helen F.
Fahey, United States Attorney, James B. Comey, Assistant United
States Attorney, Robert E. Trono, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Melvin Sumler, Trammel Lewis, and Leslie Brockington were con-
victed of conspiracy to distribute heroin in violation of 21 U.S.C.
§ 846, and possession with intent to distribute heroin in violation of
21 U.S.C. § 841(a)(1). Sumler was also convicted of carrying a fire-
arm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), and
possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1).
Sumler appeals his convictions; Lewis and Brockington appeal both
2
their convictions and sentences. Finding each of the defendants' con-
tentions without merit, we affirm the judgment of the district court.
I.
Sumler, Lewis, and Brockington were participants in a heroin dis-
tribution conspiracy operating in Richmond, Virginia. Sumler pur-
chased large quantities of heroin and then resold it to others, who
would then break the heroin down for distribution and sale in smaller
quantities. Both Lewis and Brockington purchased heroin from Sum-
ler and sold it in small quantities to users on the street.
Officers in the Richmond Police Department's Narcotics Unit
began an investigation of the heroin distribution conspiracy in 1994.
At the invitation of the department, the United States Drug Enforce-
ment Agency (DEA) later joined the Richmond effort. The officers
focused their investigation on Sumler -- also known as "Clever" --
because they suspected him as the main heroin supplier in North
Richmond. The officers interviewed persons arrested in North Rich-
mond on heroin charges, set up surveillance in the area, and con-
ducted undercover buys. At trial, the United States proved its
conspiracy charge against Sumler through the testimony of numerous
witnesses. They recounted how Sumler received his heroin, to whom
he sold it, and the magnitude of purchases made from him during the
conspiracy.
The United States also offered evidence recovered during a June
12, 1996 search of a truck driven by Sumler. On that day, the officers
received a call from one of their informants alerting them to the fact
that Sumler was expected to receive a heroin shipment later that day.
Detective Potter of the Richmond Police Department arranged to have
several officers monitor Sumler's conduct that afternoon to corrobo-
rate the informant's tip. The officers eventually followed Sumler to
a convenience store on the south side of Richmond from which Potter
observed Sumler emerge with a black bag. After Sumler left the
store's parking lot, his truck was pulled over by the Richmond police.
In a subsequent search, the police discovered the black bag, which
was found to contain 417.4 grams of heroin, a black backpack with
approximately $1,900, and a handgun.
3
At trial, witnesses connected Lewis and Brockington to Sumler,
explaining how each defendant had described the heroin they sold as
"Clever's dope." Sumler's supplier, Mousa Mozeb, also testified that
Sumler had warned him to stop supplying Brockington, as he was
Sumler's customer. Numerous witnesses testified to purchasing her-
oin from Lewis and Brockington. The government also presented
direct evidence of controlled purchases made from Lewis and Brock-
ington. Troy Travers, a confidential informant cooperating with the
police, made two such purchases from Lewis and one from Brocking-
ton.
Sumler, Lewis, and Brockington were charged in a superseding
indictment with conspiracy to distribute heroin and possession with
intent to distribute heroin. Sumler was also charged with two firearm-
related crimes. After a four-day jury trial, the three were convicted on
all counts. Sumler was sentenced to a total of 384 months imprison-
ment plus five years supervised release, Lewis to 240 months impris-
onment plus ten years supervised release, and Brockington to 360
months imprisonment plus eight years supervised release. Each now
appeals.
II.
Sumler, Lewis, and Brockington all contend that the district court's
voir dire with respect to two jurors was insufficient to uncover poten-
tial juror bias or partiality. During the voir dire, the district judge
asked whether any juror had a family member involved in the use or
abuse of narcotics. One juror indicated she had a daughter who seven
years prior had been involved with cocaine. The district judge asked
her whether, in light of that experience, she thought she could be
objective and fair to both sides in the case. The juror responded, "I
think so." Another juror indicated she had a brother who became
involved in drugs during Vietnam. The district judge asked her the
same question, to which she responded, "I can be fair. I do know how
dangerous they are from my experience." The district judge then
explained how a juror must be able to be objective, to listen to all the
evidence, and to assess that information fairly. When asked if she
could do that, she responded, "Yes." The defendants challenge the
district court's refusal to further question either of the two jurors.
4
Federal judges are accorded ample discretion in conducting the
voir dire, and specifically in determining what questions should be
asked. Mu'Min v. Virginia, 500 U.S. 415, 423-24 (1991); United
States v. Lancaster, 96 F.3d 734, 738-39 (4th Cir. 1996) (en banc),
cert. denied, 117 S. Ct. 967 (1997). As the Supreme Court has
explained:
Despite its importance, the adequacy of voir dire is not
easily subject to appellate review. The trial judge's function
at this point in the trial is not unlike that of the jurors later
on in the trial. Both must reach conclusions as to impartial-
ity and credibility by relying on their own evaluations of
demeanor evidence and of responses to questions.
Mu'Min, 500 U.S. at 424 (quoting Rosales-Lopez v. United States,
451 U.S. 182, 188 (1981) (plurality opinion)). Thus, we review a dis-
trict judge's refusal to ask certain questions during voir dire only for
abuse of discretion. United States v. Barber, 80 F.3d 964, 967 (4th
Cir.) (en banc), cert. denied, 117 S. Ct. 198 (1996).
The defendants' challenge is directly foreclosed by precedent. In
United States v. Hines, 943 F.2d 348, 352-53 (4th Cir. 1991) (per
curiam), a juror indicated she was aware of the effect drugs have on
society because of her employment at a chemical dependency unit. As
in Sumler's trial, the district judge in Hines asked whether she could
put that experience aside and judge the case based on the evidence
presented at trial. She responded, "I think so." Id. at 353. We found
that the mere fact that a juror expresses a general opinion about drugs
followed by a statement that she "thinks" she can weigh the evidence
impartially is insufficient to require the juror to be excused. Id. Simi-
larly, we see no reason why the expressions of the two jurors in Sum-
ler's case should have raised concern. As in Hines, the district judge
in Sumler's trial was in the best position to assess the demeanor of
the two jurors and the credibility of their responses to his questions.
The judge concluded that each juror could be trusted to decide the
case objectively and fairly, and therefore decided no further questions
were necessary. Accordingly, we hold that the voir dire was sufficient
and that the district court did not abuse its discretion in refusing to ask
further questions of the jurors.
5
III.
A.
Before trial, Sumler moved to suppress the evidence recovered in
the search of the truck he was driving June 12, 1996. The district
court denied the motion. On appeal, Sumler renews his objections to
the search, arguing the police lacked probable cause. Pursuant to the
automobile exception, the police could conduct a warrantless search
of the truck Sumler was driving if they had probable cause to believe
it contained the heroin. See, e.g., California v. Acevedo, 500 U.S. 565,
579 (1991).
Considering the totality of the circumstances, as we are instructed
to do by Illinois v. Gates, 462 U.S. 213, 238 (1983), we have no trou-
ble concluding that the officers had probable cause to believe Sumler
was transporting heroin in his vehicle. The confidential informant told
the police that he had learned from his girlfriend that her sister, who
had transported heroin for Sumler in the past, was delivering heroin
that day. Both women were unaware that the informant was cooperat-
ing with the police. Sumler was expected to wait at his ice cream shop
in North Richmond. Meanwhile, the woman making the delivery
would leave the heroin somewhere in Richmond and afterwards con-
tact Sumler to tell him the location. Finally, Sumler would "go and
check out the heroin."
Detective Potter and his fellow officers corroborated most of the
informant's tip. The police surveilled Sumler while he waited at his
store and observed a woman fitting the description of the girlfriend's
sister approach him. Soon thereafter Sumler departed in a black truck.
After making one stop in an area of frequent heroin trafficking, Sum-
ler proceeded to drive in an erratic manner to a convenience store on
the south side of Richmond. Sumler once made a prolonged stop on
a street where there was no traffic, continually changed speeds, and
detoured through an apartment complex rather than driving a direct
route. He eventually backed his truck up in front of the store, and
emerged soon after with a black bag in his hands. When Sumler was
ultimately pulled over, Potter spoke to him outside the truck and
explained his suspicion that Sumler was transporting heroin. Accord-
ing to Potter, Sumler provided evasive answers to his questions and
6
appeared "really agitated and very nervous." The police then searched
his car and discovered the heroin, money, and handgun.
Under the totality-of-the-circumstances test, "[a]n important factor
in determining whether an informant's report establishes probable
cause is the degree to which it is corroborated." United States v.
Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993); see United States v.
Miller, 925 F.2d 695, 698 (4th Cir. 1991). Indeed, corroboration of an
informant's predictions can provide the basis for crediting the tip,
even if it consists of hearsay. Gates, 462 U.S. at 244-45. By the time
the police searched the truck Sumler was driving, they had indepen-
dently corroborated most of the informant's tip. Combined with their
own observations of Sumler's behavior that day and their knowledge
of Sumler's heroin trafficking practices generally, the corroborated tip
surely gave the police probable cause to believe that Sumler was
transporting the heroin the informant said was being delivered that
day.
Sumler argues, however, that because the informant's tip was triple
hearsay, the police could not guarantee the reliability of the original
source of the information. This argument ignores the Court's opinion
in Gates. In that decision, the Court rejected any rigid "reliability"
tests for probable cause in favor of the totality-of-the-circumstances
analysis. Id. at 238. Indeed, although the tip the police received in
Gates was an anonymous letter, the Court held that the police's inde-
pendent corroboration of much of that letter provided a substantial
basis for crediting the hearsay. Id. at 244-45. Because the informant's
tip here also was substantially corroborated by the police, we reject
Sumler's reliability objection.
As for Sumler's argument that the informant stated only that Sum-
ler would "check out" the heroin, we think he scrutinizes the sub-
stance of the tip too closely. Because the informant had told the police
that the heroin shipment was destined for Sumler, we think it only
natural that the police would interpret the informant's tip to mean that
Sumler would actually receive and transport the heroin. Even if that
were not a natural understanding of the tip, the police surely had
probable cause to believe Sumler possessed the heroin once they cor-
roborated the tip and observed Sumler emerging from the conve-
nience store with the black bag.
7
B.
Sumler next maintains that the United States violated his proffer
agreement. Before trial, Sumler made an information proffer to the
government as part of plea negotiations; the government promised in
return not to use his statements against him. During the proffer ses-
sion, Sumler admitted that the bag he carried out of the convenience
store to the truck on June 12, 1996, was the black bag which held the
heroin -- not the black backpack later discovered in the truck which
contained the money. Detective Potter, however, originally recorded
in his report that he saw Sumler carrying a black backpack out of the
store. Sumler therefore asserts that Potter's trial testimony that he saw
Sumler with the black bag constituted use of Sumler's admission. He
maintains that Potter's testimony could only have been based on
knowledge of Sumler's admission.
The basic flaw in Sumler's argument is that his admission was
never actually used against him. Potter had an obvious independent
source for his testimony regarding the black bag-- his own observa-
tions. Moreover, this source of knowledge was already available to
Potter when Sumler made his admissions to the government. See
United States v. McHan, 101 F.3d 1027, 1036 (4th Cir. 1996) (immu-
nity not implicated when evidence derived from independent source),
cert. denied, 117 S. Ct. 2468 (1997). Potter never related Sumler's
admission to the jury, nor did he testify that his basis of knowledge
was Sumler's own admission. Instead, Potter testified at trial as to his
own observation of the events of June 12, 1996. The district court
itself found that Potter testified from his own independent recollec-
tion, and we may not disturb that finding unless it is clearly errone-
ous. Id.; United States v. Jones, 542 F.2d 186, 199 (4th Cir. 1976).
Upon review of the record, we fail to discern such an error.
C.
Sumler next argues that the district court erred by failing to con-
duct an inquiry into potential jury exposure to prejudicial information.
After the close of the first day of trial, the Assistant United States
Attorney (AUSA) and Sumler's counsel had a courtroom conversa-
tion concerning Potter's appearance on the stand. Apparently, the
AUSA indicated his incredulity that defense counsel could conduct a
8
tough cross-examination of Potter when it was already known that
Sumler had admitted carrying the black bag out of the convenience
store. At that point, defense counsel noted a juror standing in the
doorway of the jury room. The district judge responded only by
informing the parties that he always gives an instruction to the jury
not to consider anything outside of the court proceedings. Sumler now
contends the district court erred by not conducting an inquiry into the
juror's possible exposure to this information.
In United States v. Hankish, 502 F.2d 71, 77 (4th Cir. 1974), we
held that when "prejudicial information may have been exposed to the
jury, the court must ascertain the extent and effect of the infection,
and thereafter, in its sound discretion, take appropriate measures to
assure a fair trial." We have followed this rule in numerous decisions
since Hankish. See, e.g., United States v. Gray, 788 F.2d 1031, 1032-
33 (4th Cir. 1986); United States v. Pomponio , 517 F.2d 460, 462-63
(4th Cir. 1975); Jones, 542 F.2d at 194-97. The district court failed
to conduct such an inquiry in this case, choosing instead to rely on
its instruction to the jury that it not consider anything outside of the
court proceedings. We have twice held, however, that reliance on
such an admonition is plainly insufficient. Pomponio, 517 F.2d at
463; Hankish, 502 F.2d at 77. We explained in Hankish that "we can-
not explore other curative devices" when the district judge fails "to
lay open the extent of the infection." Id. at 77.
We hold, however, that the district court's failure to do so here was
not reversible error. See United States v. Sanders, 962 F.2d 660, 672
(7th Cir. 1992) (holding failure not automatically reversible error and
inquiring into prejudice); United States v. Perrotta, 553 F.2d 247, 251
(1st Cir. 1977) (applying harmless error analysis). Even had the juror
heard -- and believed -- the AUSA's statement regarding Sumler's
admission, it was no more than cumulative evidence of Sumler's
actual possession of the heroin as he emerged from the convenience
store. Even had the black bag containing that heroin first been discov-
ered during the search of the truck Sumler was driving, the jury still
would have had overwhelming evidence establishing Sumler's pos-
session.
Possession may be actual or constructive. United States v. Nelson,
6 F.3d 1049, 1053 (4th Cir. 1993). "To establish constructive posses-
9
sion the government must show ownership, dominion or control over
the drug or the premises or vehicle in which it was concealed." Id.(emphasis added). Although Sumler did not own the truck he was
seen driving that day -- it was registered to his brother -- his domin-
ion or control over the vehicle was certainly proven beyond a reason-
able doubt. Chapman v. California, 386 U.S. 18, 24 (1967). Officers
observed Sumler driving the truck alone to the convenience store on
the south side of Richmond, and apprehended him in the truck soon
after he left that store. See United States v. Crockett, 813 F.2d 1310,
1316 (4th Cir. 1987) (person driving car in which contraband sub-
stance is concealed found to exercise control or dominion). The offi-
cers also observed the truck parked in front of Sumler's store all
afternoon prior to his trip to the south side. Finally, Potter testified
that he had seen Sumler driving the truck at least fifteen to twenty
times during the previous three weeks. Given the evidence before the
jury on Sumler's possession of the heroin, the error here was plainly
harmless.
D.
Sumler finally contends that the district judge deprived him of a
fair trial by making negative comments during the trial with respect
to his trial counsel. Sumler alleges six instances where the district
judge reprimanded his attorney in an unnecessarily harsh tone.* Sum-
ler contends that these comments conveyed the impression to the jury
that the judge was partial to the prosecution. We disagree.
Under Fed. R. Evid. 611(a), the district court has a duty to "exer-
cise reasonable control over the mode and order of interrogating wit-
nesses and presenting evidence so as to . . . avoid needless
consumption of time." After the first day of trial, the district judge
expressed displeasure with the laborious pace of the witness examina-
tions and admonished counsel for both sides not to ask questions that
_________________________________________________________________
*At one point, after Sumler's counsel unnecessarily repeated the
response of the witness, the district judge stated:"That's what he said,
Mr. Carpenter. You are just going to drive me to distraction. He says, `I
don't recall.' Your next statement is, `You don't recall.' Don't be a myna
bird, just ask a question. This constant repetition of what he says isn't
getting us anywhere. Come on."
10
had already been answered. Several of the court's comments that
Sumler has highlighted on appeal dealt with this issue of trial coun-
sel's needless repetition of matters that had earlier been covered. And
the court's remaining comments pertained to other relevant issues of
courtroom administration. We have previously held that "even a stern
and short-tempered judge's ordinary efforts at courtroom administra-
tion . . . do not establish bias or partiality." United States v. Castner,
50 F.3d 1267, 1274 (4th Cir. 1995) (internal quotation marks omitted)
(citation omitted). We have reviewed the trial transcript and conclude
that, as isolated comments amidst over 950 pages of testimony, the
district court's remarks could have had no impermissible effect. More
importantly, the judge's comments conveyed no impression of his
view of the evidence. See United States v. Wilson, 118 F.3d 228, 237-
38 (4th Cir. 1997) (no abuse of discretion when district court "did not
impose its own view of the evidence on the jury"). Accordingly, we
find no abuse of discretion by the district court and reject Sumler's
challenge.
IV.
A.
Both Lewis and Brockington challenge the sufficiency of the evi-
dence supporting their convictions for conspiracy to distribute heroin.
They argue initially that the government failed to present any direct
evidence of their participation in the conspiracy. Both also point to
the fact that many of the witnesses who testified regarding Lewis and
Brockington's heroin sales could not connect either to Sumler. Each
asserts that the evidence that did suggest they sold Sumler's heroin
also supported inferences consistent with innocence on the conspiracy
charges. Finally, Lewis maintains that, because the term "Clever's
dope" was also understood to signify good heroin, testimony that he
sold "Clever's dope" could not conclusively tie him to the conspiracy.
In reviewing the defendants' challenges to the conspiracy verdicts,
we must decide only whether "a rational jury could find that the evi-
dence was sufficient to sustain their conspiracy convictions." United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 1087 (1997). Our job is not to reweigh the evidence
or determine the credibility of witnesses. Id. at 862-63. The jury
11
already made those judgments and, on those bases, returned a guilty
verdict. That verdict "must be sustained if there is substantial evi-
dence, taking the view most favorable to the Government, to support
it." Glasser v. United States, 315 U.S. 60, 80 (1942).
Defendants' claims can be reduced to two main contentions: the
government's case lacked direct evidence of participation, and the
evidence also supported an inference of innocence. Defendants' first
argument ignores, however, the settled proposition that both the exis-
tence of a conspiracy and a defendant's participation in such conspir-
acy may be proven by circumstantial evidence. Burgos, 94 F.3d at
858. Upon review of the record, we find substantial evidence connect-
ing both Lewis and Brockington to the heroin distribution conspiracy.
In Lewis' case, one witness testified that Lewis described his heroin
as "Clever's dope" while another witness stated that Lewis told her
he received his heroin from Sumler. Although Lewis challenges the
credibility of these witnesses, "determinations of credibility `are
within the sole province of the jury and are not susceptible to judicial
review.'" Id. at 863 (citation omitted). Witnesses at trial testified both
that "Clever's dope" meant good heroin and that it meant heroin sup-
plied by Sumler -- who was also known as Clever. It was for the jury
to decide which inference was most credible, if not both.
In Brockington's case, several witnesses supplied the evidence of
his connection to Sumler. One witness recalled an incident when he
complained to Brockington of the quality of his heroin. Brockington
reassured the witness that he would "get with`Clever' and that he
would straighten it out." Another witness testified that Brockington
told her his heroin was "Clever's dope." And Mousa Mozeb -- Sum-
ler's supplier -- testified that when Sumler learned Mozeb had been
selling to Brockington, Sumler ordered Mozeb to stop as Brockington
was already Sumler's customer. Cognizant that the circumstantial evi-
dence "need not exclude every reasonable hypothesis of innocence,"
id. at 858, we easily conclude that a rational jury could find that the
evidence was sufficient to sustain Lewis and Brockington's conspir-
acy convictions.
B.
Brockington also disputes his possession conviction under count
nine of the indictment on two grounds. Under that count, Brockington
12
was charged with possessing with intent to distribute, and aiding and
abetting another in the distribution of, heroin. He challenges both the
sufficiency of the evidence supporting his possession conviction and
the timing of the judge's aiding-and-abetting instruction under the
same count.
The trial testimony upon which Brockington's possession charge
was based related to a controlled purchase made by Troy Travers, a
confidential informant. Both Travers and DEA Agent Mark Ross,
who accompanied Travers that day and witnessed the transaction, tes-
tified at trial. According to Travers, he asked Brockington if he had
some heroin. Brockington responded by telling him that "Al's got it"
and instructing another person to retrieve the heroin located only a
few feet away. This same person then handed Travers the heroin.
Travers then gave his money to that person, who in turn transferred
it to Brockington. Agent Ross confirmed Travers' testimony by
recounting his visual observations of the transaction. Stressing the
fact that he never actually held the heroin, Brockington claims that
reasonable doubt of his guilt remains. We disagree.
Taken in the light most favorable to the government, Glasser, 315
U.S. at 80, the evidence was more than adequate to convict Brocking-
ton. As we have already explained, possession may be actual or con-
structive, Nelson, 6 F.3d at 1053, and the latter may be established by
showing "ownership, dominion or control over the drug." Id. Brock-
ington's dominion and control was conclusively proven by the testi-
mony that he directed the entire transaction and received the money.
This evidence provided the government with a solid case of construc-
tive possession. Accordingly, we find Brockington's challenge to be
meritless.
Brockington further disputes the timing of the district court's
aiding-and-abetting instruction with respect to count nine of the
indictment. After the district judge instructed the jury, he asked for
objections from either side. The AUSA informed the judge that the
court had omitted the aiding-and-abetting charge from the recitation
of count nine of the indictment, even though the court had given a
general aiding-and-abetting instruction. The district judge therefore
informed the jury that the aiding-and-abetting instruction he previ-
ously read related only to count nine. Brockington claims this seem-
13
ingly minor act "unjustly spotlighted" him so as to make him appear
guilty on that count. We disagree. The district judge's action was nec-
essary to correctly instruct the jury. Properly connecting a jury
instruction with the count for which it serves hardly conveys an
assumption of guilt to the jury. Thus, it is not surprising that Brock-
ington can point to no decision supporting his argument.
V.
A.
Lewis raises two primary objections to his sentence-- one an
alleged error of law, the other of fact. Each of Lewis' contentions
relates to the drug quantity contained in the relevant conduct section
of his presentence report. In part, the report attributed 150 ounces
(4,242.5 grams) of heroin on the basis of Marvin Antonio Lee's
claimed purchases from Lewis over a five-month period. The govern-
ment did not present Lee as a witness at Lewis' sentencing hearing.
Lewis nevertheless made a motion to compel the production of the
government's notes of a debriefing session with Lee. The district
court denied the motion with respect to the notes regarding Lee, but
ruled that Lewis would be permitted to call Lee as a witness at the
sentencing hearing.
Lewis did not call Lee. The government, however, did call Ronald
Johnson -- Lee's codefendant on drug charges in New York -- and
accordingly turned over notes of Johnson's debriefing session. At the
sentencing hearing, Johnson testified that Lee told him they received
their heroin from Lewis. The district court found that Johnson's testi-
mony only partially corroborated Lee's claims in the presentence
report. The court therefore attributed only fifty ounces (1,417.5
grams) of heroin to Lewis on the basis of Lee's statements.
Lewis first contends that the district court committed legal error by
not ordering the government to produce its notes of Lee's debriefing
session. Lewis claims that Fed. R. Crim. P. 26.2 and 32(c)(2), as well
as U.S.S.G. § 6A1.3, impose such a disclosure obligation on the gov-
ernment. Lewis' argument, however, is legally baseless.
14
Rules 26.2 and 32(c)(2) concern only the production of statements
by "a witness other than the defendant [who] has testified on direct
examination." Fed. R. Crim. P. 26.2(a). Because Lee never testified
at Lewis' sentencing hearing, he was not a witness covered by the
dictates of Rules 26.2 and 32(c)(2). U.S.S.G. § 6A1.3 likewise pro-
vides no support for Lewis' argument. That section requires only that
"the parties shall be given an adequate opportunity to present infor-
mation to the court regarding" important factors reasonably in dis-
pute. Id. § 6A1.3(a). To the extent that Lee's drug quantity claims
constituted the important factor in reasonable dispute, the district
court complied with section 6A1.3 by expressly ruling in its written
order that Lewis would be permitted to call Lee at his sentencing
hearing. It was Lewis in the end who chose not to do so.
Lewis next contends that the district court incorrectly calculated
the drug amounts attributable to him by relying on the vague and
unreliable statements of Anthony Everett and Lee, both of which con-
stituted hearsay. Because the district court's findings are of a factual
nature, we review them only for clear error. United States v. Love,
134 F.3d 595, 606 (4th Cir. 1998), petition for cert. filed, No. 97-9085
(U.S. May 14, 1998). It is well-established that a district court "`may
properly consider uncorroborated hearsay evidence that the defendant
has had an opportunity to rebut or explain.'" Love, 134 F.3d at 607(quoting United States v. Terry, 916 F.2d 157, 160-61 (4th Cir.
1990)). Everett's statements, because they were made under oath
before the grand jury, constitute a particularly reliable form of hear-
say and were therefore properly relied upon by the district court.
With respect to heroin purchases claimed by Lee, the district court
credited his statements only after consulting with its probation officer
and witnessing the live testimony of Ronald Johnson. Significantly,
the court relied on Lee only to a limited extent, attributing just one-
third of the total quantity of heroin Lee claimed to have purchased
from Lewis. Lewis nevertheless urges this court to at least remand his
case and require the district court to provide an exact explanation of
how it chose to attribute fifty ounces on the basis of Lee's claims. We
decline. "[T]he Sentencing Guidelines permit estimated amounts
based on satisfactory evidence, and such estimates inherently possess
a degree of uncertainty." United States v. D'Anjou, 16 F.3d 604, 614
(4th Cir. 1994); see also United States v. Sampson, 140 F.3d 585, 592
15
(4th Cir. 1998) (precise calculations of drug quantities not required).
This was certainly a proper case for the use of approximation in deter-
mining attributable drug quantities, as the district court decided the
relevant presentence report claims were only partially reliable.
Reviewing the record, we find no clear error in the district court's
necessary estimate.
B.
Brockington also challenges his sentence, contending that the dis-
trict court erred by not granting him a downward departure. Brocking-
ton's appeal is easily dismissed. We have repeatedly held that a
district court's decision to deny a downward departure is a nonappeal-
able, discretionary decision. See, e.g., Burgos, 94 F.3d at 876; United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). The only excep-
tion to this rule applies when "the refusal to depart downward [was]
based on the district court's mistaken view that it lacked the authority
to depart." Id. at 31. Here, the district court did not deny Brocking-
ton's request because it believed it was legally required to do so.
Accordingly, its decision is not appealable and Brockington's chal-
lenge must be dismissed.
VI.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
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