United States v. Rogers ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 92-8478
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LYNN KIRSTIN WALLER ROGERS,
a/k/a Lynn Waller Rogers,
Defendant-Appellant.
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Appeal from the United State district Court for the
Western District of Texas
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(August 30, 1993)
Before KING and JOLLY, Circuit Judges, and PARKER1, District
Judge.
Per curiam:
Defendant-appellant Lynn Kirstin Waller Rogers (Rogers) pleaded
guilty to possession with intent to distribute amphetamine/
methamphetamine in violation 21 U.S.C. § 841 (a)(1). On appeal she
challenges her sentence only, alleging that the district court
erred in finding that over 500 grams of amphetamine/methamphetamine
were attributable to her. Based on our determination that the
district court's finding was not clearly erroneous, we affirm
Rogers' sentence.
1
Chief Judge of the Eastern District of Texas, sitting by
designation.
STANDARD OF REVIEW
"A district court's findings about the quantity of drugs
implicated by the crime are factual findings reviewed under the
'clearly erroneous' standard." United States v. Rivera, 898 F.2d
442, 445 (5th Cir. 1990). Under the 'clearly erroneous' standard,
"[i]f the district court's account of the evidence is plausible in
light of the record viewed in its entirety the court of appeals may
not reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently."
Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct.
1504, 1511, 84 L. Ed. 2d 518 (1985).
FACTS
Thirteen people were indicted for alleged offenses related to
the possession and distribution of amphetamine/methamphetamine as
a result of an investigation by the Waco Police Department and the
Drug Enforcement Administration from January 1988 through June
1991. Michael Royals was the head of the distribution scheme. He
dealt with only four of the other indicted individuals directly,
who in turn sold drugs to an ever widening and tangled system of
drug dealers. Rogers was one of the four people in the tier below
Royals, but dealt in less volume than others at that level. She
was incarcerated on a state drug conviction from September 1987 to
October 1989, and the government alleged that she began buying
drugs from Royals in 1990.
The government used forty-four (44) different confidential
informants (CIs) in the investigation, and over thirty search
warrants were executed. The government relied on information
received from seven of those CIs to establish the drug amount
attributable to Rogers. Rogers alleges that the following
information that came into evidence through the testimony of Waco
Police Officer Darryl Moore is not reliable:
Date Amount Rogers Possessed Source
1988 or prior to 1/2 pound of amphetamine CI# 20
Rogers' incarceration
approx. 1/11/89 1/2 pound of amphetamine CI# 21
Fall 1990 1/2 ounce daily for 3-4 CI# 21
month -- 45 ounces
2/15/91 1/8 ounce of amphetamine CI# 12
3/21/91 9.25 grams amphetamine CI# 12
5/22/91 1 ounce of amphetamine CI# 17
However, Rogers admitted possessing a maximum of one pound of
amphetamine, which amount was corroborated by Royals who reported
during his debriefing that he sold Rogers not more than a pound of
amphetamine.
DISTRICT COURT CONCLUSION
After Rogers' guilty plea, the U.S. Probation Office prepared
her Presentence Report, in which the Probation Officer concluded
that 2,196.82 grams of amphetamine were attributable to Rogers.
The Probation Officer reached this conclusion by adding up the
amounts reportedly witnessed by various confidential informants,
2.71 grams recovered pursuant to a search warrant, and
approximately one pound (453.6 grams) alleged by co-defendant
Michael Royals during his debriefing. Rogers objected to the
computation of the drug amount on the grounds that much of the
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amphetamine had been double counted and that much of the
information relied upon by the Government was unreliable. The
district court subtracted the 453.6 grams reported by Royals,
because the Government could not establish that the drugs that
Royals claimed he sold to her were not the same drugs that were
reported by the CIs. The court found that 1700 grams were
attributable to Rogers.
CORROBORATION
Pursuant to § 1B1.1 of the Sentencing Guidelines, the first
step in sentencing one convicted of violating 21 U.S.C. § 841(a)(1)
is to determine the base offense level provided by § 2D1.1 of the
Sentencing Guidelines. Several base offense levels are provided by
U.S.S.G. § 2D1.1, depending on the amount of drugs attributable to
the convicted person. The original base level offense calculated
by the probation office was 28, based on the recommendation that
2.194 kilograms of drugs were attributable to Rogers. The district
court's finding that 1700 grams were attributable to Rogers reduced
the base level offense to 26 (between 500 grams and two kilograms
of amphetamine). Rogers' contention is that the court should have
found that no more than one pound (453.6 grams) of amphetamine was
attributable to her, resulting in further reduction of the base
level offense, and a corresponding decrease in the applicable
guidelines.
For sentencing purposes, the district court may consider any
relevant evidence "without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
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information has sufficient indicia of reliability to support its
probable accuracy." U.S.S.G. § 6A1.3. More specifically, out-of-
court declarations by an unidentified informant may be considered
where there is good cause for the nondisclosure of his identity and
there is sufficient corroboration by other means. U.S.S.G. § 6A1.3
(citing United States v. Fatico, 579 F.2d 707 (2d Cir. 1978)). See
also United States v. Young, 981 F.2d 180 (5th Cir. 1993). Rogers
does not challenge, and Moore's testimony supports, the district
court's implicit finding that there was good cause for
nondisclosure of the identities of the CIs in this case.
The issue remaining for this court to determine is whether the
information used to sentence Rogers was grounded in some indicia of
reliability. The "some indicia of reliability" language has been
interpreted by this Court to require that the facts used by the
district court for sentencing purposes be reasonably reliable.
United States v. Shacklett, 921 F.2d 580, 585 (5th Cir. 1991).
Rogers established at the sentencing hearing that it was not
possible for CIs #20 and #21 to have seen her with drugs in her
possession on the dates reported in 1988 and 1989 because she was
incarcerated on those dates. In response, the government argues
that, according to Moore's testimony, CI #20 specifically stated
that he observed Rogers with the drugs before she went to prison
and that the discrepancy in the dates of CI #21's report is not so
large as to render the information unreliable, particularly when
the informant, estimating the time frame years later, only
approximated the date. Further, Rogers complains that the
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government offered no specific corroboration of the amounts
reported by the CIs; all that was offered was Moore's testimony
regarding the general reliability of the CIs and other evidence of
Rogers' drug activity.
In United States v. Young, 981 F.2d 180 (5th Cir. 1993) this
court faced a similar situation where a defendant presented
evidence that tended to rebut information provided by CIs whose
identity was not disclosed. The government provided corroboration
in the form of evidence obtained from their own investigation
concerning the defendants' involvement in drug dealing and the CIs'
past record of reliability, without specifically corroborating the
drug amounts reported by the CIs. We noted in Young that the
district court, although faced with a paucity of defendants'
rebuttal testimony, halved the amount of drugs reported by the CIs
to "tak[e] into account uncertainty and the possibility of
exaggeration." Id. at 186.
This case presents a closer question than we faced in Young.
The rebuttal testimony here clearly established that at least some
portion of the CI reports were wrong. However, the discrepancy
established did not impact directly on the report of approximately
forty-five (45) ounces that CI #21 reported that Rogers sold to a
codefendant in repeated small transactions in the Fall of 1990. In
fact, Rogers' own version of the facts corroborated that most of
her involvement occurred during this period. Much like Young, the
extensive government investigation in this case corroborated many
of the other details of the drug distribution scheme, but did not
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establish the amount of drugs attributable to Rogers except through
the challenged CI reports. We find that on the record, viewed in
its entirety, sufficient indicia of reliability accompanied the
CIs' reports that the district court was justified in relying on
them to determine the quantity of drugs with which Rogers had been
associated without corroboration of the specific amounts alleged.
See also United States v. Windham, 991 F.2d 181 (Fifth Cir. 1993).
DUPLICATION OF DRUG AMOUNT
Rogers argues that the amount of drugs reported by the CIs
duplicated the amount reported by Royals. The district court
recognized that danger and subtracted the amount Royals reported
from the total. Rogers suggests, without authority, since the
government did not present evidence of any drug source other than
Royals, the court should have believed Royals instead of the CIs
because he is a known person who is subject to cross examination.
Rogers also argues that the various CIs could have reported the
possession of the same quantity of drugs more than once. These
speculations do not support a holding that the lower court's
finding was clearly erroneous.
RELEVANT CONDUCT
Finally, Rogers argues that the district court erred in
considering the drug quantities reported by CIs #20 and #21 prior
to 1988, because "in the unlikely event" they did see Rogers with
drugs, such conduct would be outside the scope of relevant conduct
for the offense of conviction. In effect, Rogers argues that the
conduct had to occur, if it occurred at all, before 1988, and that
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pre-1988 drug sales were not part of the conspiracy alleged in the
indictment. She also complains that the district court made no
finding as to whether the conspiracy existed in 1987.
When calculating quantities of drugs upon which to base a
sentence, quantities not specified in the indictment, if part of
the same scheme, course of conduct, or plan, may be used to
determine the base offense level. Young, 981 F.2d at 185. The
Presentence Report (PSR) concluded that the conduct in question
constituted relevant conduct. While Rogers objected to the
inclusion of the pre-1988 quantities, she offered no evidence that
they were not part of the same course of conduct. The district
court was therefore free to adopt the PSR without further inquiry.
United States v. Rodriguez, 897 F.2d 1324, 1327-28 (5th Cir. 1990)
(Where defendant disputes facts stated in the PSR, but presents no
rebuttal evidence, the district court has discretion to adopt the
PSR's facts without more specific inquiry or explanation, provided
that those facts had an adequate evidentiary basis.)
CONCLUSION
We cannot say that based on all of the evidence available for
consideration that the district court's determination that 1700
grams of amphetamine were attributable to Rogers was clearly
erroneous.
We AFFIRM.
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