Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

Lionel Tarape pled guilty to one count of possession with intent to distribute methamphetamine. He appeals the sentence imposed by the district court. Tarape contends that his written statement, voluntarily given to Naval Investigative Service agents, should not have been used to adjust his base offense level. We affirm.

Relying on United States v. Restrepo, No. 88-3207 (9th Cir. August 24, 1989), Tarape argues that the district court should only have used the amount of methamphetamine included in his plea agreement (approximately one ounce) to determine his base offense level. The Restrepo opinion has been withdrawn. United States v. Restrepo, No. 88-3207 (9th Cir. March 2, 1990).

In United States v. Turner, No. 89-30036, slip op. 2657 (9th Cir. March 12, 1990), we found that the district court had "correctly followed the guidelines by aggregating all the cocaine base involved in the crack distribution scheme to determine [the defendant's] base offense level," despite the defendant's contention that his base offense level should have been based soley on the amount of drugs involved in the count on which he was convicted. Id. at 2665-66.

Tarape contends that it is unfair to use his voluntarily given written statement against him because he made it in an effort to cooperate with the NIS investigators following their offer to "put in a good word" for him.¹  This assurance by the investigators falls short of an agreement that "self-incriminating information [ ] provided [in cooperation] will not be used against the defendant." U.S.S.G. Sec. 1B1.8(a). Without such an agreement, Tarape may not rely on the text of U.S.S.G. Sec. 1B1.8(a).

Tarape argues that his uncorroborated, uncoerced, written statement was not a sufficient basis for finding that his base offense level should be increased. It is not necessary to determine whether Tarape preserved this issue for appeal because, even if he did preserve it, his argument fails.

Tarape argues that because an uncorroborated confession or admission is insufficient for a conviction, see Wong Sun v. United States, 371 U.S. 471, 488-89 (1963), an uncorroborated admission should be insufficient to determine relevant conduct under U.S.S.G. Sec. 1B1.3(a) (2). Tarape's written statement to the NIS investigators was not, however, uncorroborated. The district court based its determination that Tarape had sold two to three ounces of drugs per month on his written statement and his testimony at the sentencing hearing. The district court considered three separate statements, one to the NIS investigators, one to the probation officer, and one at the sentencing hearing. Each time Tarape admitted to sixteen to seventeen months of distributing drugs. Except for the exact number of grams that Tarape sold, his criminal conduct is undisputed.

In addition, there is indication in the record that there was other corroborating evidence of Tarape's related criminal conduct. According to the presentence report, while conducting video surveillance of Tarape's work area for another reason, investigators recorded Tarape smoking either cocaine or methamphetamine. The report also noted that, pursuant to a Federal Grand Jury subpoena, Tarape's telephone records were reviewed and found to reveal his contacts with known drug users, and that drug transaction records, among other things, were seized upon Tarape's arrest. The district court's reliance on Tarape's statement was not clearly erroneous because the statement was not uncorroborated.

Tarape argues that even if it is appropriate to use Tarape's statement to determine the amount of methamphetamine sold, then any ambiguity about the amount should be resolved in his favor. The rule of lenity, however, applies to questions of statutory ambiguity, not factual ambiguity. See Bifulco v. United States, 447 U.S. 381, 388 (1980) ("The Court has emphasized that the 'touchstone' of the rule of lenity 'is statutory ambiguity.' ")

The question presented in this case is whether the district court's factual determination of the amount of methamphetamine sold during the relevant period was clearly erroneous. The district court found based on Tarape's voluntary statements that the amount of methamphetamine sold was between 907 and 1446 grams, and that averaging those amounts was a reasonable calculation of the total amount of methamphetamine sold. This factual determination was not clearly erroneous.

AFFIRMED.