United States of America, Plaintiff-appellee, v. Manuel Cantu Salinas, Defendant-appellant, 62 F.3d 1426 (9th Cir. 1995)

Before: FARRIS, NOONAN, and HAWKINS Circuit Judges.

MEMORANDUM^* 

Manuel Cantu Salinas appeals the life sentence he received after being convicted of engaging in a continuing criminal enterprise in violation of 18 U.S.C. 21 U.S.C. § 848. We affirm the sentence.

PROCEEDINGS AND ANALYSIS

The district court based the sentence on the report of the probation officer that Salinas had been involved in the distribution of at least 231 kilos of cocaine. This information was derived from the statement made to investigators by Rex Draper that he had sold an average of 1.5 kilograms a week for Salinas over a three-year period. This statement is contrary to Draper's testimony at the trial; he testified that he sold about 30 kilos for Salinas. Given the conflict between Draper's sworn testimony and the hearsay statement reported by the investigator, the figure of 231 kilos was not a reliable basis for the court to use for sentencing.

We can affirm the sentence on other evidence apparent in the record. There is no challenge to Draper's testimony that he distributed 30 kilos for Salinas. Nor is there any challenge to the probation officer's report that Salinas distributed 4 kilos to Zamora, 12 kilos to his own wife Christie, and 1 kilo to Wayne Weise. Weise himself testified at the trial that he had distributed cocaine received from Salinas to "five or six persons" in amounts ranging from 1-to-2 kilos per person. The record, therefore, demonstrates that over 50 kilos were distributed by Salinas.

A distribution of 50 kilos yields a base offense level of 36. Salinas also received an enhancement of 6-points for possession of a firearm, raising the offense level to 42. According to the tables, the sentencing range was 360 months to life. Consequently the district court imposed a sentence within a range supported by the record.

AFFIRMED.