United States v. Michael Ed Brewer ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3606
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Michael Ed Brewer, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 26, 1998
Filed: March 27, 1998
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Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Michael Ed Brewer pleaded guilty to one count of distributing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994), and to one count of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (1994).
The District Court1 sentenced Brewer to 121 months imprisonment and three years
supervised release. In this direct appeal of his sentence, Brewer argues that the District
1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
Court&s reliance on hearsay evidence at sentencing was erroneous, and violated his due
process and confrontation rights. We disagree and therefore affirm.
At sentencing, the District Court considered the testimony of an FBI agent, who
had participated in Brewer&s investigation, as to the substance of interviews the agent or
other investigators had conducted with third persons. Based on this testimony, the
District Court overruled Brewer&s objections to the drug-quantity determination indicated
in the presentence report and to a recommended increase under U.S. Sentencing
Guidelines Manual § 3B1.1(a) (1997) for Brewer&s aggravating role in the offense.
District courts may consider hearsay at sentencing, without regard to its
admissibility at trial, so long as the testimony has sufficient indicia of reliability to
support that it was probably accurate. See U.S. Sentencing Guidelines Manual
§ 6A1.3(a), p.s. (1997); United States v. Drapeau, 121 F.3d 344, 351 (8th Cir. 1997).
The particular circumstances of a case dictate whether challenged hearsay is reliable
enough to be used at sentencing, see Drapeau, 121 F.3d at 351, a determination we
review for abuse of discretion, see United States v. Stavig, 80 F.3d 1241, 1247 (8th Cir.
1996).
We conclude the District Court did not abuse its discretion in this case because
the statements given to investigators were largely consistent with one another, and were
corroborated in part by Brewer&s admissions and the circumstances surrounding the
arrest of one of the persons the FBI agent interviewed. In addition, the declarants were
providing information against their penal interests. Cf. United States v. Cassidy, 6 F.3d
554, 557 (8th Cir. 1993) (holding that there was no abuse of discretion in considering
detective&s testimony as to what third person stated during debriefing; declarant made
incriminating statements in presence of her attorney while awaiting sentencing in
declarant&s own case, statements were consistent with facts discovered during
investigation and were corroborated by seized physical evidence and defendant&s own
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sentencing testimony, and this court has upheld consideration of hearsay evidence under
more “tenuous and unclear circumstances”). Although Brewer provided contrary
testimony, we cannot say that the District Court erred in choosing to discredit it. See
United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993).
Finally, Brewer&s Confrontation Clause argument is foreclosed by United States
v. Wise, 976 F.2d 393, 401 (8th Cir. 1992) (en banc) (right to confront witnesses does
not attach at sentencing), cert. denied, 507 U.S. 989 (1993); and given the approximate
three-fold increase in Brewer&s sentence attributable to the challenged hearsay, we do
not think due process concerns were triggered in this case, see id. (holding that in certain
instances sentence may so overwhelm or be so disproportionate to punishment that
would otherwise be imposed that due process concerns must be addressed).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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