Unpublished Disposition, 935 F.2d 276 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 276 (9th Cir. 1989)

No. 89-30198.

United States Court of Appeals, Ninth Circuit.

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

MEMORANDUM** 

Corpus Pelier Londres (Londres) pled guilty to a superseding information alleging one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a) (1) (1988). In this pre-Sentencing Guideline case, Londres contends the district court abused its discretion in sentencing him based upon unreliable evidence and unsubstantiated opinion. See United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989).

We find no abuse of discretion and affirm.

Generally, for sentencing purposes a district court may consider a wide variety of information which would not otherwise be admissible at trial.1  However, a defendant's due process rights are violated "when a trial judge relies on materially false or unreliable information in sentencing." United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986).2  Fed. R. Crim. P. 32(c) (3) (D) aids in ensuring due process is satisfied. Id.

The defendant has the burden under the rule to proffer evidence to establish the alleged factual inaccuracy in the presentence report. United States v. Roberson, 896 F.2d 388, 391 (9th Cir. 1990). The defendant must show the challenged information is "(1) false or unreliable, and (2) demonstrably made the basis for the sentence." Messer, 785 F.2d at 834; see also United States v. Rachels, 820 F.2d 325, 327-28 (9th Cir. 1987). After a challenge is raised under the rule, the district court must resolve the controverted matter by making a finding or determination that no finding is necessary since the disputed information will not be considered in sentencing.

On appeal, Londres challenges five paragraphs in the presentence report. Each is examined in turn.

Londres contends there was unreliable information concerning his delivery and pickup of large quantities of drugs to and from 6220 N.E. 66th Avenue. The district court rejected Lujan's challenge to this portion of the presentence report, relying on Special Agent Patrick O'Connor's testimony at trial and the sentencing hearing and transcriptions of intercepted telephone conversations.

Initially, Londres argues that the district court could not rely on the agent's testimony at a separate trial for purposes of considering his sentence, citing United States v. Castellanos, 882 F.2d 474, 477 (11th Cir. 1989), vacated and substituted opinion, 904 F.2d 1490, 1496 (11th Cir. 1990) ("Castellanos").

The sequence of events was as follows. On March 7, 1989, Londres pled guilty to one count in a superseding information. The trial of three original co-defendants (Robert Steven Lujan, Mike Valdez and Joseph Valdez) was held on March 8 through April 11, 1989. It was at this trial that O'Connor testified. Londres was sentenced on June 13, 1989. O'Connor also testified at the sentencing hearing.

We do not find the Sentencing Guidelines case of Castellanos controlling here in the pre-Sentencing Guidelines case before us. The pre-Sentencing Guidelines standards are not governed by Sentencing Guidelines cases. Under pre-Sentencing Guideline law, Congress expressly provided that " [n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which" a sentencing court may consider for sentencing. 18 U.S.C. § 3661 (formerly section 3577). Further, Fed.R.Evid. 1101(d) (3) provides that the Federal Rules of Evidence (other than with respect to privileges) do not apply to sentencing proceedings. The ultimate test under due process and our caselaw precedent is whether the information relied upon was materially false or unreliable. See, e.g., Messer, 785 F.2d at 834.

The Government cites to Serapo v. United States, 595 F.2d 3 (9th Cir. 1979), where we found a defendant's due process rights were not violated by the sentencing court's reliance on evidence in the trials of two codefendants. Serapo, however, is not directly controlling because the information which was challenged was presented in both the presentence report and the separate trial testimony. Id. at 4. Under governing pre-Sentencing Guidelines law, we therefore hold there is no bar to the sentencing court consideration of hearsay testimony from a separate trial as long as this information is not shown to be materially false or unreliable under the standard pronounced in Messer, 785 F.2d at 834.3 

We now consider the accuracy and reliability of Agent O'Connor's opinion testimony at trial and at the sentencing hearing.4 

It was the opinion of O'Connor at the sentencing hearing and at trial that intercepted telephone conversations between Londres and other defendants revealed the use of disguised language to transact drug sales. O'Connor's opinion on Londres' delivery and pick up of drugs and money was based on 25 to 36 telephone conversations involving Londres. The opinion was also predicated on Agent O'Connor's 12 years' experience. In the context used, the agent opined that terms such as "one" or "big one" referred to a kilogram and "papers" meant drug money. This opinion was corroborated by the trial testimony of Rene Valenzuela, an associate of Valdez who testified for the Government as a result of a plea bargain. This opinion testimony therefore does not transgress the Messer standard.

Londres challenged the accuracy of two portions of paragraph 24 in the presentence report listing various items seized from two residences occupied by Londres.

At the sentencing hearing, Londres' counsel only objected to the relevancy of the items but expressly did not refute the facts recited in the paragraph. Under these circumstances, Londres failed to meet his initial burden to challenge the accuracy of paragraph 24. Roberson, 896 F.2d at 391.

Londres disputed the presentence report claim that he was "directly below" Mike Valdez as one of his "lieutenants." The sentencing court agreed that the presentence report incorrectly placed Londres next to the top of the organization. Instead, the court found Londres was between the middle and the top. A copy of the hearing transcript reflecting this change was ordered to be attached to the presentence report.

No error has been shown in the sentencing court's modification of the presentence report. Agent O'Connor testified at the sentencing hearing that Londres was a major distributor for Valdez and was one of Valdez' most trusted associates. This was corroborated in part by the Government's reference to the trial testimony of Rene Valenzuela, who was part of the Valdez organization and testified on behalf of the Government after entering into a plea agreement.

Londres contested paragraph 34 which also discussed his status in the organization and monthly distribution of 15 to 20 kilograms of cocaine.

At the sentencing hearing, Agent O'Connor testified that, under a conservative estimate, Londres distributed between 15 to 20 kilograms a month. The intercepted telephone conversations and drug tools seized at Londres' residences provide further support for this paragraph. This opinion has not been shown to be materially false or unreliable.

Londres disputes again the references in paragraph 35 that Londres made deliveries of cash and specified items were seized from his residences.

If the basis for this paragraph was solely derived from unspecified informants, then it might be unreliable. Kerr, 876 F.2d at 1446 ("mere statements of an anonymous informant, standing alone, do not bear sufficient indicia of reliability"). However, as already noted, the information contained in paragraph 35 has been shown to have a reliable, independent basis.

Londres contends a preponderance of the evidence standard should be used in this pre-Sentencing Guidelines case, citing McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986). We agree. Fernandez-Vidana, 857 F.2d at 675 (holding no error in applying preponderance of the evidence standard without deciding whether a lesser standard of proof would be sufficient); see also Kerr, 876 F.2d at 1446 (dicta noting preponderance of the evidence standard).

Londres also argues he did not receive proper notice that the district court would rely on Agent O'Connor's trial testimony. However, the record shows he received proper notice and an adequate opportunity to rebut. Serapo, 595 F.2d at 4. Londres' counsel cross-examined Agent O'Connor at the sentencing hearing. Londres also relied upon some of the trial cross-examination of O'Connor for purposes of the sentencing hearing.

Finally, Londres contends the district court may have relied upon information of an undisclosed informant revealed at the sentencing hearing. This information first surfaced during the cross-examination of O'Connor. The sentencing court did not examine, and in fact had sealed, a Government report concerning the informant. In light of other independent evidence, there is no indication the court relied on this information. Therefore, we find this case distinguishable from Kerr, 876 F.2d at 1446, where we found "mere statements of an anonymous informant, standing alone," were insufficient. (Emphasis added).

AFFIRMED.

 *

The Honorable Earl H. Carroll, United States District Judge for the District of Arizona, sitting by designation

 **

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

 1

See, e.g., 18 U.S.C. § 3661 (1988) (formerly section 3577) (use of information for sentencing); Fed.R.Evid. 1101(d) (3) (federal rules of evidence do not apply to sentencing proceedings); see also United States v. Columbus, 881 F.2d 785, 788 (9th Cir. 1989) (consideration of facts underlying dismissed indictment counts); United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988) (hearsay testimony at a sentencing hearing may be considered); Fed. R. Crim. P. 32(c) (3) (A) (presentence report may be based upon "sources of information obtained upon a promise of confidentiality" or "any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons," which, the court may decide not to disclose to the defendant)

 2

See also Columbus, 881 F.2d at 787; United States v. Safirstein, 827 F.2d 1380, 1387 (9th Cir. 1987) (noting a sentence is vacated if it is based upon " [u]nreasonable inferences and material assumptions which find no support in the record"); Jones v. United States, 783 F.2d 1477, 1480 (9th Cir. 1986)

 3

Finally, we note that Londres' counsel also relied upon Agent O'Connor's trial testimony when he offered designated portions of the trial cross-examination of Agent O'Connor for the court's consideration at the sentencing hearing

 4

The parties cite to cases considering expert testimony at trial, not at a sentencing hearing, pursuant to Fed.R.Evid. 702, 703 & 704. These trial cases clearly do not apply here given the directives of 18 U.S.C. § 3661 and Fed.R.Evid. 1101(d) (3)