Unpublished Disposition, 912 F.2d 471 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Ronald James Sierra appeals his sentence for conspiracy to distribute cocaine, distribution of cocaine, possession with intent to distribute cocaine and use of a communication facility. Sierra claims that the court used admissions he made during plea negotiations in its calculation of his sentence in violation of Sec. 1B1.8 of the United States Sentencing Guidelines, Fed. R. Crim. P. 11(e) (6) (D) and Fed.R.Evid. 410(4). Because the court did not base its sentence on statements made in plea negotiations, we affirm.

Statements made in plea negotiations. On June 3, 1988 Sierra pled guilty to six counts including conspiracy to distribute cocaine, distribution of cocaine and possession of cocaine with intent to distribute. Sierra's indictment charged him with distribution of 1.9 kilograms of cocaine. Appellant admitted to Probation Officer Walt Myers that he had actually been involved in the possession and distribution of eight kilograms of cocaine. Sierra argues that he also admitted to the prosecution as a proffer during plea negotiations that he had received eight kilograms of cocaine and distributed six. The court based Sierra's sentence on the eight kilograms of cocaine and sentenced him to 135 months in prison followed by five years of supervised release.

Appellant claims that because he admitted to receiving eight kilograms of cocaine and distributing six during plea negotiations, the court's use of this admission in sentencing violated U.S.S.G. Sec. 1B1.8, Fed. R. Crim. P. 11(e) (6) (D) and Fed.R.Evid. 410(4). All of these rules prohibit the use of admissions made in the course of plea negotiations.

Appellant argues that the trial court made no findings of fact as to whether or not admissions made during plea negotiations were used to enhance the sentence. However, Sierra never argued in the court below that admissions made during plea negotiations were used against him. His argument at the sentencing hearing was based on the fairness of utilizing statements made to the probation officer in sentencing. It is uncontroverted that Sierra made the statement to the probation officer that he had received eight kilograms of cocaine and distributed six.¹ 

Appellant does not argue that the probation office did not rely on his admissions to Myers in drafting its presentence report, upon which Sierra's sentence was based. He appears to argue that because Sierra also made the admissions during plea negotiations, similar admissions to the probation officer cannot be used in sentencing. Appellant provides no legal authority for the argument that statements made in the course of plea negotiations can shield from use statements made in another, admissible, context. If we were to adopt such a rule, defendants could exempt facts legitimately considered in sentencing by merely repeating those facts during plea negotiations.

We find that because the admissions were made to the probation officer, the sentence was not based on admissions made during plea negotiations.²  Thus, U.S.S.G. Sec. 1B1.8, Fed. R. Crim. P. 11(e) (6) (D) and Fed.R.Evid. 410(4) were not implicated.

Admissions made to Probation Office. This leaves the final question of whether or not Sierra's admissions to the probation officer can be the basis of his sentence. Appellant does not dispute the accuracy of the statements.

It is established that in calculating the amount of drugs for purposes of sentencing under the federal sentencing guidelines, the court need not be restricted to the amount alleged in the indictment or even the amount providing the basis for conviction. United States v. Restrepo, No. 88-3207, slip op. at 4501 (9th Cir. May 8, 1990).

The Sentencing Commission's intent is clear: Amounts of drugs calculated on the basis of conduct of which the defendant is neither charged nor convicted but that were "part of the same course of conduct or common scheme or plan as the conviction" may properly be used to adjust the offense level.

Id., quoting U.S.S.G. Sec. 1B1.3. See also Turner, 898 F.2d at 711.

If there was a dispute over the amount of cocaine involved in the underlying offense there might be a question about the use of Sierra's statement in sentencing. However, appellant did not dispute the admission of receiving eight kilograms of cocaine and distributing six before the trial court. Neither does he dispute these amounts on appeal. We find that it was not error to utilize these amounts in calculating Sierra's sentence.

AFFIRMED.