United States v. Lee , 892 F.3d 488 ( 2018 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 17-1490
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    MARIO LEE, a/k/a Mo,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. Nancy Torresen, U.S. District Judge]
    Before
    Thompson, Circuit Judge,
    Souter, Associate Justice,*
    and Selya, Circuit Judge.
    Bruce M. Merrill on brief for defendant-appellant.
    Halsey B. Frank, United States Attorney, and Benjamin M.
    Block, Assistant United States Attorney, on brief for appellee.
    June 18, 2018
    * Hon. David H. Souter, Associate Justice (Ret.) of the
    Supreme Court of the United States, sitting by designation.
    THOMPSON, Circuit Judge.           This appeal comes from a
    district court’s imposition of a 218-month sentence on Mario Lee
    for   conspiracy     to   distribute     and   possession   with   intent    to
    distribute 100 grams or more of a mixture or substance containing
    heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846.                Lee only
    attacks his sentence as procedurally unreasonable.             Concluding, as
    we do, that the district court did not commit any error, we affirm.
    A. Background1
    On February 7, 2014, Mario Lee was released from prison
    in New York, having been convicted for selling crack cocaine to an
    undercover police officer.         Within months of his release, federal
    and   state    law   enforcement    in   Maine    discovered   that   Lee   was
    participating in an ongoing conspiracy to distribute heroin there.
    Lee would obtain heroin from outside Maine and would transport it
    back to Maine to be distributed by himself and others.                      On
    September 3, 2015, Lee was arrested.              He was charged with four
    counts of distribution of heroin, and one count of conspiracy to
    distribute heroin.        Facing a possible life sentence, Lee pled
    guilty to one count of conspiracy to distribute and possession
    with intent to distribute 100 grams or more of a mixture or
    1We draw these facts, where relevant, from the record before
    us on appeal, in particular the pre-sentence report (PSR), the
    criminal complaint to which Lee pled guilty, the plea hearing
    transcript, the sentencing transcript, and the parties’ sentencing
    memoranda and exhibits before the district court.      See United
    States v. Santiago-Serrano, 
    598 F. App'x 17
    , 18 (1st Cir. 2015).
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    substance containing heroin, in violation of 21 U.S.C. §§ 841(a)(1)
    and 846.   The plea agreement struck by the government and Lee, due
    to Lee’s undisputed career offender status under U.S.S.G. § 4B1.1,
    had the effect of setting his guideline range at 120 to 240 months.
    At Lee’s sentencing, and in its sentencing memorandum,
    the   government    presented      and   summarized   evidence     from   its
    investigation      to    support    a    1.3   kilogram     drug    quantity
    determination, as recommended by the PSR.           This evidence included
    the grand jury testimony or interviews of nine witnesses who
    connected Lee to large quantities of heroin.2          Lee objected to the
    drug quantity estimates in the PSR based on the government’s
    witness statements.3      Unlike other cases where drug quantity comes
    up as an issue, in this case the district court noted, and counsel
    for the government and Lee agreed, that Lee’s PSR objections would
    not affect the guidelines calculations because Lee’s undisputed
    status as a career offender under U.S.S.G. § 4B1.1 superseded those
    considerations.         However,   the   district   court   said   that   drug
    2These witnesses are identified in the record as: Source of
    Information (SI)-1, -2, -3, -4, -5, -5H (husband of SI-5), -6,
    -7, and -8.
    3 We note that below Lee also disputed the PSR’s
    recommendation of an enhancement for his role in the conspiracy.
    The PSR recommended that he receive a four-level enhancement as an
    organizer or leader of criminal activity involving five or more
    participants or that was otherwise extensive under U.S.S.G. §
    3B1.1(a). As he does not challenge the district court's imposition
    of this enhancement on appeal, we say no more.
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    quantity could be relevant to the actual sentence imposed under
    the 18 U.S.C. § 3553(a) factors.
    To hear Lee tell it, the witnesses’ statements, which
    were not subject to cross-examination in the grand jury or the
    prosecutor’s office, had inconsistencies.     These inconsistencies
    all amounted to arguing either that the witnesses exaggerated the
    period of time they were acquainted with Lee when he was selling
    heroin in Maine or the amount of heroin the witnesses knew Lee had
    possessed.    Lee concluded that that made them too unreliable to be
    considered.    While noting these discrepancies, the district court
    found that the witnesses’ statements were credible, corroborating
    locations, associates, and drugs connected to Lee, and adopted the
    PSR’s recommended 1.3 kilograms as the drug quantity. The district
    court considered the drug quantity in imposing Lee’s 218-month
    sentence rather than a more lenient one.
    B. Discussion
    On appeal, Lee complains only about the drug quantity
    the district court attributed to him.   According to Lee, SI-1, SI-
    2, SI-3, SI-4, and SI-5, whose testimony supported the PSR’s drug
    quantity recommendation, were inherently unreliable.      Even worse,
    Lee says that considering these unreliable statements would risk
    “double   counting,”   incorrectly   ballooning   the   drug   amounts
    attributable to him by considering the testimony of multiple
    witnesses that could relate to the same drugs. To Lee, considering
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    this   evidence      despite    the        shortcomings    he    identified      was
    procedural sentencing error.           As a part of his argument that the
    witness statements are unreliable, Lee believes that the witness
    statements     are   especially       so    because     they    are    out-of-court
    statements from either grand jury testimony or proffer interviews
    with the government.      Thus, Lee concludes, if the district court
    had required the government to produce these witnesses for live
    testimony at sentencing, as he requested below, the district court
    could not have possibly believed them.
    We must ensure that the sentence imposed by the district
    court was “procedurally sound.”             United States v. Dávila-González,
    
    595 F.3d 42
    , 47 (1st Cir. 2010) (citing United States v. Martin,
    
    520 F.3d 87
    , 92 (1st Cir. 2008)).                A district court commits a
    procedural error in sentencing if it "fail[s] to calculate (or
    improperly     calculate[s])     the       Guidelines     range,      treat[s]   the
    Guidelines as mandatory, fail[s] to consider the § 3553(a) factors,
    select[s] a sentence based on clearly erroneous facts, or fail[s]
    to adequately explain the chosen sentence." Gall v. United States,
    
    552 U.S. 38
    , 51 (2007).        When making a drug quantity finding, the
    sentencing court’s responsibility is to “make reasonable estimates
    of drug quantities, provided they are supported by a preponderance
    of the evidence.”       United States v. Mills, 
    710 F.3d 5
    , 15 (1st
    Cir. 2013).     We review those estimates “deferentially, reversing
    only for clear error.”         
    Id. We will
    only find clear error when
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    our review of the whole record “form[s] a strong, unyielding belief
    that a mistake has been made.”       Cumpiano v. Banco Santander P.R.,
    
    902 F.2d 148
    , 152 (1st Cir. 1990).
    Evidence supporting the drug quantity determination may
    be considered regardless of its admissibility at trial, so long as
    it has “sufficient indicia of reliability to support its probable
    accuracy.”     U.S.S.G. § 6A1.3(a).        The sentencing court has a lot
    of discretion in deciding what evidence is reliable enough to be
    considered for sentencing purposes.           See 
    Mills, 710 F.3d at 15
    -
    16; United States v. Cintrón-Echautegui, 
    604 F.3d 1
    , 6 (1st Cir.
    2010); United States v. Green, 
    426 F.3d 64
    , 66 (1st Cir. 2005).
    Having laid out our deferential review of drug quantity
    findings, and the sentencing court’s broad discretion in reviewing
    the evidence before it at the sentencing hearing, we start with
    Lee’s   argument    that   the   witness    statements,   as   out-of-court
    statements, are inherently less reliable for sentencing purposes,
    and that the government should have been compelled to produce the
    witnesses for cross examination.       Lee’s argument is way off base.
    A defendant’s rights under the Confrontation Clause do not attach
    during sentencing.     United States v. Díaz-Arias, 
    717 F.3d 1
    , 26-
    27 (1st Cir. 2013).        And for a while now, we have held that a
    sentencing court may consider hearsay statements of confidential
    informants     if   they   otherwise       show   sufficient   indicia   of
    reliability. See 
    Green, 426 F.3d at 67
    ; United States v. Tardiff,
    - 6 -
    
    969 F.2d 1283
    , 1287 (1st Cir. 1992), superseded by amendment to
    U.S.S.G. on other grounds, U.S.S.G. § 3B1.3, as recognized in
    United States v. Reccko, 
    151 F.3d 29
    , 33 (1st Cir. 1998).         We see
    no error here.4
    The     witnesses’   statements    concerning   Lee’s   heroin
    distribution were detailed, internally consistent, and mutually
    corroborative in important ways.         In particular, the statements
    were mutually corroborative about the specific locations where he
    stashed and sold heroin, including multiple descriptions of a
    trailer on Essex Street in Bangor, Maine, restaurants in Bangor
    such as the “Sea Dog” and “Carolina’s,” a residence at Maxim Court
    in Bangor, and a residence in Old Town, Maine.      Multiple witnesses
    also corroborated the names of Lee’s associates and “runners” (drug
    deliverers).    We have already held that a sentencing court can
    rely on evidence with indicia like this.        See 
    Green, 426 F.3d at 4
    Lee’s reliance on United States v. Carl, 
    593 F.3d 115
    (1st
    Cir. 2010), does not help him escape the clear precedent permitting
    the use of hearsay statements, including confidential ones. While
    in Carl, the statements of drug addicts who bought crack cocaine
    from the defendant were subject to cross-examination at trial
    before being used for drug quantity purposes at sentencing, nothing
    in that opinion would suggest that cross-examination at trial is
    dispositive or even considered in our deferential review of the
    sentencing court. See 
    id. at 122-23.
    As long as the information
    the government uses is reliable, there is no presumption or
    preference for live testimony subject to cross-examination rather
    than any other. See 
    Mills, 710 F.3d at 15
    -16 (“[T]he court can
    consider all kinds of relevant information regardless of
    admissibility at trial . . . provided it has ‘sufficient indicia
    of reliability to support its probable accuracy.’” (quoting
    U.S.S.G. § 6A1.3(a)).
    - 7 -
    67    (affirming    sentencing        court’s    reliance      on     statements
    corroborating      names     of    associates    and      locations        used    by
    defendant).      Some     witnesses     also    personally     witnessed          Lee
    possessing and distributing heroin himself.                  We have affirmed
    reliance on evidence showing far less.                 See United States v.
    Zapata, 
    589 F.3d 475
    , 485-86 (1st Cir. 2009) (affirming drug
    quantity on basis of intercepted phone calls discussing drug
    quantity in code when defendant was never found in possession of
    drugs).   The alleged inconsistencies Lee identifies – all relating
    to the witnesses’ knowledge of the amount of time Lee was in Maine
    or how many drugs he was connected to – are not enough to torpedo
    the   district     court's        findings.      In    fact,       some    of     the
    inconsistencies     are    just    mistakes    that   the   witness       corrected
    later.5   It is not clear error that the sentencing court weighed
    other indicia of reliability and found them to be more significant.
    See 
    Mills, 710 F.3d at 16
    & n.4.
    Any possibility of a reversible error due to witness
    reliability   or    double    counting    is    negated     even    more    by    the
    5The insignificance of the flaws Lee picks out of the
    testimony is made even clearer by this example. SI-1 testified
    that she met Lee in 2012 or 2013, which, as Lee seizes upon, would
    have been impossible as he was incarcerated in New York at that
    time. As the government points out, SI-1 corrected this belief
    later in her testimony, amending that she had dealt with Lee for
    eighteen months to two years. Inconsistencies like these do not
    compete in weight or relevance with the factors the district court
    found reliable in the witness testimony, and that we find reliable
    here.
    - 8 -
    narrowness of the drug quantity calculation.          In an act of lenity
    to Lee’s benefit, the PSR’s 1.3 kilogram drug quantity accounted
    for the possibility of any exaggerations or double counting by the
    witnesses in its estimate.        The PSR: (i) only considered a six-
    month window of SI-1’s transactions with Lee, accounting for when
    Lee was released from prison in New York and when it was alleged
    he was not in Maine for eight months; (ii) did not consider the
    suitcases of heroin Lee’s cousin delivered to him as corroborated
    by SI-4 in order to avoid double counting; (iii) only considered
    a six-month window of transactions corroborated by SI-5, even
    reducing the drug quantity per transaction, to ensure lenity;
    (iv) for no stated reason but to Lee’s benefit, did not consider
    any drug quantities corroborated by SI-6, SI-7, or SI-8; and
    (v) discounted the “bundles” of heroin Lee sold to represent .25
    grams each in the calculation, rather than 1 gram as multiple
    witnesses testified.       In sum, the sentencing court adopted the
    PSR’s “modest and defensible assumptions” to avoid precisely the
    errors Lee claims were made.        
    Cintrón-Echautegui, 604 F.3d at 7
    .
    The district court’s reliance on the witness statements and its
    adoption    of   a   narrowly   tailored    drug   quantity   determination
    supported by that evidence were reasonable. We see no clear error.
    C. Conclusion
    For the reasons explained above, the sentence is
    affirmed.
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