Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.John LOYD, Defendant-Appellant.

No. 90-50360.

United States Court of Appeals, Ninth Circuit.

Submitted March 20, 1991.Decided April 1, 1991.

Before K.K. HALL, DAVID R. THOMPSON and RYMER, Circuit Judges.


MEMORANDUM** 

John Loyd appeals his sentence following a guilty plea for conspiracy to possess with intent to distribute more than 100 kg of marijuana, in violation of 21 U.S.C. §§ 846 and 841(a) (1). Loyd contends that his right to due process was violated because the estimated quantity of marijuana used to calculate his base offense level was based on unreliable information derived from pre-arrest FBI interviews. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

The district court's resolution of a disputed sentencing factor is a finding of fact and reviewed for clear error. See United States v. Upshaw, 918 F.2d 789, 791 (9th Cir. 1990), cert. denied, --- S. Ct. ---- (1991). "In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence ... provided that the information has sufficient indicia of reliability to support its probable accuracy." U.S.S.G. Sec. 6A1.3(a). See United States v. Monaco, 852 F.2d 1143, 1149 (9th Cir. 1988), cert. denied, 488 U.S. 1040 (1989) (due process requires some minimal indicia of reliability beyond mere allegation). If the district court relies on materially false or unreliable information, the defendant's due process rights are violated. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986). Moreover, the district court must adhere to accurate and reliable means when calculating numerical amounts. United States v. Columbus, 881 F.2d 785, 787 (9th Cir. 1989).

Here, the probation officer preparing Loyd's presentence report ("PSR") relied on information gathered by a FBI agent to determine an approximate quantity of marijuana distributed by Loyd over a ten-month period. The FBI agent interviewed four of Loyd's co-conspirators who transported marijuana for him. Three of the four stated that Loyd distributed approximately 25 pounds of marijuana weekly. The fourth stated that Loyd distributed approximately 100 pounds weekly.

The probation officer used these figures to make an estimate of the total amount of marijuana involved in the conspiracy by multiplying each weekly estimate by four to determine the amount distributed per month; then, she multiplied the monthly figure by ten. The calculated total amounts ranged from 880 lbs to 4000 lbs. Finally, the probation officer, taking the average of the sum of the amounts, estimated the quantity of marijuana distributed to be 1695 lbs or 768.8 kg. The probation officer used this amount to conclude that Loyd's base offense was 30 and the district court adopted this conclusion.

At the time of the FBI interviews, none of the four co-conspirators was under arrest and they gave their statements voluntarily. The evidence recovered at Loyd's residence and his detention at a Cleveland airport tended to suggest that Loyd distributed large quantities of marijuana, corroborating the co-conspirators' statements. Cf. United States v. Kerr, 876 F.2d 1440, 1446 n. 2 (9th Cir. 1989). This extrinsic evidence provides sufficient indicia of reliability and the district court did not clearly err by finding the statements credible. See Monaco, 852 F.2d at 1148.

Because the co-conspirators' statements bear an indicia of reliability, the subsequent mathematical manipulations produced an average bearing some degree of accuracy. See Columbus, 881 F.2d at 787. Therefore, the district court did not clearly err by adopting the probation officer's conclusion.

AFFIRMED.

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The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3