Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

No. 89-30365.

United States Court of Appeals, Ninth Circuit.

Before HUG and D.W. NELSON, Circuit Judges, and CARROLL,^**  District Judge.

MEMORANDUM^*** 

Saragosa Jiminez ("Jiminez") pled guilty to Count XIII of the Superseding Indictment, charging that during July and August 1987, he knowingly and intentionally distributed cocaine. See 21 U.S.C. § 841(a) (1) (1988). On appeal, Jiminez argues the district court abused its discretion in considering hearsay information at the sentencing hearing. United States v. Ibarra, 737 F.2d 825, 826-27 (9th Cir. 1984). We affirm.

For pre-Sentencing Guidelines cases, as here, it is well-settled that hearsay information presented at a sentencing hearing or in a presentence report may be considered for sentencing purposes. United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988) (citing Gregg v. United States, 394 U.S. 489, 492 (1969); United States v. Wondrack, 578 F.2d 808, 809-10 (9th Cir. 1978)). As we recently noted, it is " [o]nly when the hearsay is so inadequately supported that the factual basis for believing [it is] almost nil can it be argued that the evidence should not have been considered." Fernandez-Vidana, 857 F.2d at 675 (internal quotations omitted). See also 18 U.S.C. § 3661 (formerly section 3577); Fed.R.Evid. 1101(d) (3).

Here, Jiminez questions the hearsay testimony concerning statements made by three unidentified informants and three named individuals to Drug Enforcement Agency Special Agent Patrick O'Connor. Since none of the challenged hearsay testimony at the sentencing hearing and in the presentence report has been shown to be virtually devoid of factual support, we conclude the sentencing court did not abuse its discretion in considering any of it. Jiminez exercised his opportunity to contest this evidence by cross-examining Agent O'Connor at some length concerning what each individual had told him. Further, Jiminez called his own witness, Sergeant Edward May, concerning what the three unidentified informants had said to him.

AFFIRMED.