Unpublished Disposition, 912 F.2d 471 (9th Cir. 1990)

MEMORANDUM^** 

John Leslie Vouk appeals his sentence of 80 months for offenses related to growing marijuana.¹  We affirm.

Vouk claims a violation of due process because the district court considered an "ex parte " letter from the United States District Attorney prior to the sentencing hearing. The letter contained the prosecutor's recommendation for sentencing and his objections to the presentence report. We have reversed when a defendant was refused access to a secret communication from the prosecutor to the sentencing judge. United States v. Reese, 775 F.2d 1066, 1077 (9th Cir. 1985) (the defendant was refused access to the prosecutor's memo); United States v. Wolfson, 634 F.2d 1217, 1221-22 (9th Cir. 1980) (same). Here, the prosecutor sent Vouk's attorney a copy of his letter and Vouk had ample opportunity to respond to it prior to the imposition of sentence. Under those circumstances, the irregularity, if any, is harmless. See United States v. Wellman, 830 F.2d 1453, 1469 (7th Cir. 1987) (any ex parte problem with exhibits submitted by the government without disclosure to the defendant was cured by granting the defendant a continuance and an opportunity to respond).

Vouk contends that there was insufficient evidence to prove beyond a reasonable doubt that he was a manager or supervisor as required for a 3 point enhancement pursuant to Sentencing Guideline Sec. 3B1.1.²  Valenti testified that Vouk constructed a marijuana growing operation at the house Valenti lived in, that Vouk marketed the marijuana, that Vouk taught him various aspects of growing and marketing marijuana, that Vouk almost always paid him, and that for a time he "looked to John Vouk for leadership and decision making." The district court did not err in finding Vouk a manager or supervisor. See United States v. Carvajal, No. 89-10184, slip op. 6041, 6048 (9th Cir. June 12, 1990) (reviewing the district court's conclusion that a defendant was a leader and organizer for clear error).

Vouk also contends that the district court erred by increasing his sentence for failure to cooperate with authorities. Vouk's counsel argued that Vouk's sentence should be compared with the sentences of two codefendants, both of whom received sentence reductions for providing substantial assistance to authorities. The prosecutor argued that Vouk "cannot be penalized for not assisting us, [but] isn't entitled to be measured on the same yardstick that the people who did help us are measured by." The district court noted Vouk's failure to cooperate in the context of the arguments by the defense counsel and the prosecutor. Neither the district court nor the prosecutor suggested that Vouk should receive a higher sentence for his lack of cooperation. The district court found that Vouk's role in the offense was "far more serious" than that of his codefendants, and sentenced him accordingly. Our review of the record does not reveal that the district court increased Vouk's sentence for his failure to cooperate.

AFFIRMED.