United States of America, Plaintiff-appellee, v. Michael Darris Hearn, Defendant-appellant.united States of America, Plaintiff-appellee, v. George William Hockel, Defendant-appellant, 937 F.2d 604 (4th Cir. 1991)

Michael Darris Hearn and George William Hockel appeal the sentences imposed following their pleas of guilty to several drug offenses involving the distribution of methamphetamines. Appellant Hearn entered his guilty pleas to Count 1, which charged conspiracy to possess with intent to distribute and to distribute methamphetamines in violation of 21 U.S.C. §§ 846, 853 and 855, and to three counts of distribution of methamphetamines (Counts 6, 7 and 8) in violation of 21 U.S.C. § 841(a). He received a sentence of 180 months on each of the counts to be served concurrently.

Appellant Hockel pled guilty to Count 1, the conspiracy count, and to four counts of distribution of methamphetamines (Counts 2, 3, 5, and 9) and to Count 12, escape in violation of 18 U.S.C. § 751. He received a sentence of 240 months on each of Counts 1, 2, 3, 5, and 9 to be served concurrently, and a term of 60 months on Count 12 to be served concurrently with the other sentences.

Both appellants challenge the weight of drugs attributed to them by the district court and used in ascertaining their base offense levels. They claim that the court's findings of fact are based on unreliable hearsay evidence, which did not prove the drug amounts by the necessary preponderance of the evidence. They also claim that due process requires a higher degree of proof than a mere preponderance of the evidence on such a vital issue, because the length of the sentence under the guidelines increases dramatically as the weight of the drugs increases. They argue that when a defendant pleads guilty to a conspiracy count and the indictment does not allege the drug weight, and when the fact of drug weight is sharply contested at the sentencing hearing, due process mandates that proof meet a more stringent standard.

Hockel claims that the sentencing court erred in placing him in criminal history category III. The government concedes that it was error to find a criminal history of more than II, so Hockel's sentences must be vacated and his case remanded for resentencing with a criminal history category of no more than II.

Hearn argues that if Hockel's sentence is remanded and reduced because the district court used the wrong criminal history category, Hearn's sentence must also be reduced. He appears to be making a proportional argument: that because Hockel was the more culpable, any reduction of Hockel's sentence will require a proportionate reduction of Hearn's sentence.

We affirm the district court's factual findings and the sentence of appellant Hearn. We vacate the sentence of appellant Hockel, and we remand his case for resentencing.

* At sentencing, a proffer of the facts was presented by the Assistant United States Attorney without objection from the appellants. This proffer showed that for several years prior to 1988, the Drug Enforcement Administration and other law enforcement agencies had been investigating amphetamine trafficking in the Charlottesville, Virginia area. An undercover agent, David High, posing as a drug user, purchased drugs from both Hockel and Hearn. George Hockel was a source of amphetamines coming into the area and Michael Hearn was "basically a street level dealer," who was addicted to amphetamines and used other drugs and alcohol to excess. Agent High spent more time with Hearn and made more purchases from him. High's purchases are the subject of some of the substantive counts in the indictment. According to High, Hearn identified Hockel as being the source of his amphetamines and stated that they had been in the drug business selling amphetamines together since 1983. He stated that during the summer of 1988, they had passed the $1 million mark in drug sales. In December 1988, DEA agents set up a purchase from Hockel, and, following this purchase, he was arrested. Shortly thereafter Hearn was arrested.

At sentencing there was a dispute as to whether the conspiracy began before or after April 4, 1984. If the conspiracy began after that date, Hockel would have a criminal history category of II, but if it began before April 4, 1984, Hockel would have a criminal history category of III. The court found as a matter of fact that the conspiracy began in "mid 1984" and no exception has been taken to this finding. The significance of April 4, 1984 is Hockel's release from probation. On that day he was released from a prior New Jersey probation, and because he was not on probation at the beginning of the present conspiracy, additional points may not be added to his base offense level because he did not commit the present crimes while on probation.

The most contested issue at sentencing was the total weight of the amphetamines distributed over the course of the conspiracy. There were several sources of information dealing with this subject: (1) Hearn estimated the total weight to be 5 pounds; (2) Hockel testified to a total of 4 pounds; (3) a girlfriend/informant of Hearn told DEA Agent High that she had seen Hearn with one-half pound of methamphetamines per week for eight months (16 pounds); (4) a male informant gave information as to 40 to 120 ounces (2.5 pounds to 7.5 pounds) from his two to three years' association with defendants; (5) Hearn's statement about the selling of $1 million of methamphetamines, if accepted at a value of $2400 per ounce, would yield 26 pounds; and (7) Agent High testified that he obtained or saw approximately 21 ounces in the four months he dealt with the defendants.

After hearing the evidence and following a long discussion with the attorneys, the court ruled:

But on balancing the evidence as a whole on this issue, the court has concluded that by preponderance of the evidence the government has established an appropriate measure of the drug weight as somewhere between 20 and 25 pounds.

The court did not identify which of the sources of information had been relied upon in making this finding, but it most closely approximates the poundage that would result from Hearn's statement that $1 million had been sold during the course of the conspiracy. The court's finding is in line with the drug weight used in the presentence report.

II

At sentencing, is it necessary for the government to prove the weight of the illegal drugs handled by the conspiracy by more than a preponderance of the evidence when there is no allegation of drug weight in the indictment and there is a factual dispute as to such weight?

Appellants argue that drug weight has such an impact on the base offense level (BOL) that evidence more convincing than a preponderance is required. They concede that our decisions require only a preponderance, but they argue that these decisions do not address factual issues as important as drug weight. They urge adoption of a higher standard of proof for drug weight, because of its dramatic effect on the length of the sentence. They assert that use of a preponderance of evidence on such a vital issue violates due process, because drug weight is treated under the sentencing structure of the guidelines as a separate element of the crime itself.

Appellants do not suggest the standard of proof that should be applied in these circumstances, but argue that it should be at least a clear and convincing standard and possibly beyond a reasonable doubt.

In United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir. 1989), we stated:

The Sentencing Guidelines do not, however, specifically address the subject of standards of proof or which party should bear the burden. The Sentencing Reform Act is likewise silent on this issue and leaves to the courts the responsibility of fashioning appropriate rules. Unquestionably, the guidelines do not themselves mandate a change in existing law; nor is there good reason to conclude that use of the guidelines to structure sentencing discretion necessitates any change.

Prior to the implementation of sentencing guidelines in the federal system, the Supreme Court stated in McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S. Ct. 2411, 2418, 91 L. Ed. 2d 67 (1986), that " [s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." The Court in McMillan specifically rejected the assertion that a sentencing court must apply a clear and convincing standard to factual findings involved in the sentencing process. Instead, the Court ruled that, as prescribed by Pennsylvania statute, due process is satisfied by application of a preponderance standard to factual findings made by a court during sentencing.

Urrego contends that even if a more rigorous standard is not constitutionally required, this court should nevertheless adopt a clear and convincing standard on fairness grounds. He points out that some courts previously employed a clear and convincing standard, see United States v. Fatico, 458 F. Supp. 388, 408-12 (E.D.N.Y. 1978), aff'd, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073, 100 S. Ct. 1018, 62 L. Ed. 2d 755 (1980), and at least one court has suggested that a clear and convincing standard should be applied in the guidelines sentencing cases. See United States v. Johnson, 682 F. Supp. 1013 (W.D. Mo. 1988), aff'd sub nom, United States v. Mistretta, 488 U.S. --, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989). On the other hand, other courts have indicated that even a preponderance standard is not constitutionally mandated or otherwise required. See United States v. Restrepo, 832 F.2d 146, 149-50 (11th Cir. 1987) (government must establish "some reliable proof" for pre-sentence statements); United States v. Hill, 688 F.2d 18, 20 (6th Cir.) (defendant must show information in presentence report was "materially false"), cert. denied, 459 U.S. 1074, 103 S. Ct. 498, 74 L. Ed. 2d 638 (1982); United States v. Marshall, 519 F. Supp. 751, 754 (E.D. Wis. 1981) (information relied on must have "sufficient indicia of reliability"), aff'd, 719 F.2d 887 (7th Cir. 1983).

We discern no reason to require application of a standard greater than approved by McMillan. The Court there noted that "criminal sentencing takes place only after a defendant has been adjudged guilty beyond a reasonable doubt." 477 U.S. at 92 n. 8, 106 S. Ct. at 2419 n. 8. And more importantly, the Court stated that the adoption of a clear and convincing standard of proof "would significantly alter criminal sentencing," id., a change which the Court determined would be unnecessary and burdensome.

Id. at 1237-38 (footnote omitted).

The factual issue in Urrego was not drug weight, but whether defendant occupied a supervisory role in the drug operation, and the court's finding on this point could increase defendant's BOL by two levels.

In United States v. Vinson, 886 F.2d 740 (4th Cir. 1989), defendant Vinson contended that the district court erred in sentencing him on the basis of the entire amount of cocaine charged in the indictment, and he asserted that the due process clause required proof beyond a reasonable doubt of every fact necessary to increase the offense level under the guidelines. The court reaffirmed Urrego-Linares, supra, in which we "adopted a preponderance standard for the finding of fact made by a court during sentencing. Accordingly, we reject Vinson's contention that due process mandates a standard of proof more stringent than preponderance of the evidence." Id. at 741-42.

We see no reason to increase the standard of proof required to prove the weight of drugs, or to make the proof of this fact more stringent than the standard required for proof of any other disputed fact that may increase or decrease the base offense level. We will continue to require proof by a preponderance of the evidence on contested factual issues at sentencing under the guidelines.

III

The factual findings made by the sentencing judge are accepted on review unless they are clearly erroneous. We must give due regard to the opportunity of the sentencing court to judge the credibility of the witnesses, and deference to its application of the guidelines to the facts. United States v. Sheffer, 896 F.2d 842, 844 (4th Cir. 1990). From our review of the record of the sentencing hearing, we cannot say that the district court's ruling of "the drug weight as somewhere between 20 and 25 pounds" is clearly erroneous.

The court had the benefit of the evidence outlined in Part I above, and the court discussed this evidence, on the record, before making its finding as to drug weight. It is apparent that the court considered all of the evidence as to drug weight in reaching its final conclusion on this issue, and we must consider the district judge's position as the judge of the credibility of the witnesses.

Appellants argue that Hearn's boastful comments to Agent High about the sale of $1 million of the drug must not be taken seriously, because it is only a salesman puffing his wares and his abilities. To reach the base offense level of 34, which was used in computing the sentences of both appellants, it is necessary to prove drug weight in excess of 16.53 pounds (7.5KG). The Drug Quantity Table set forth in U.S.S.G. Sec. 2D1.1 of the U.S.S.G. Manual in effect in December 1988 provides a BOL of 34 for 15-49.9 KG of cocaine or equivalent. Under the Drug Equivalency Tables, 7.5KG of methamphetamine is the equivalent of 15 KG of cocaine. Therefore, a drug weight of 7.5 KG (16.53 pounds) of methamphetamines is necessary under Sec. 2D1.1(a) (3) to produce a 34 BOL.

The issue is whether there was sufficient evidence to prove by a preponderance thereof that Hearn and Hockel had, over the four years of their conspiracy, handled at least 16.53 pounds of methamphetamine.

Appellants pled guilty to conspiracy to possess with intent to distribute, so each is responsible for his possession and distribution as well as the possession and distribution of his coconspirator, if such was "in furtherance of the conspiracy that was known to or was reasonably foreseeable" by him. Application Note 1, Sec. 1B1.3, U.S.S.G. On the present record it is established that the appellants worked together closely and generally knew what each was doing. Hockel was the source of most of the methamphetamines, but he was not the only source. Hockel sold to persons other than Hearn. The drugs Hearn obtained from Hockel were either sold or used by him, since he had a methamphetamine habit. Hearn, prior to 1988, had an additional source of the drug.

The information relating to the weight of the methamphetamine handled by the conspirators came mostly from undercover agent High. This agent knew both Hearn and Hockel, and he had bought drugs from both of them. He had also talked with them about the drug business. High testified that his female informant had told him that Hearn received on a weekly or biweekly basis approximately one-half pound of methamphetamine and that he had "right around 30 buyers." This informant identified Hockel as the source of these drugs and stated that she had the opportunity to observe the drug dealings between Hockel and Hearn for six to eight months in 1988. The record does not reflect whether the word "biweekly" was used to mean every other week or twice per week. As a result, the amount this informant observed could vary between 7 1/2 pounds and 34 pounds.

A second informant supplied information to Agent High as to the amounts Hearn received from a different source in the two or three years prior to 1988. This informant made 20 trips to obtain the drug for Hearn and stated that the amount obtained on each trip varied between two and six ounces. This would produce a minimum of two and one-half pounds to a maximum of seven and one-half pounds. During this time, Hearn was also receiving drugs from Hockel on a regular basis.

In October 1988, Agent High purchased two grams of methamphetamine from Hearn and during the negotiations Hearn advised that he was making $75,000 per year from methamphetamine trafficking and that he and Hockel had recently passed the $1 million mark in their drug dealings. At the time High was paying $2400 per ounce, and if this figure is applied to the $1 million total it would amount to 26 pounds.

During the course of the investigation, High received 17 ounces from Hockel and observed Hockel with 4 additional ounces on another occasion. These purchases and observations by High were conducted in only a two month period shortly before the arrest.

When all of the sources are considered, we cannot say that the district court's finding of a drug weight somewhere between 20 and 25 pounds is not supported by a preponderance of the evidence.

IV

Appellant Hockel argues and the government concedes that Hockel's criminal history category was no more than II, and it was error to find he was in category III. The district judge's use of category III came at the end of a long day and shortly after a discussion of a 3 level reduction. It appears that the reduction and the criminal category became confused, but, whatever the reason, Hockel should not have been sentenced with a criminal history category of III. His adjusted BOL was 35 and with a criminal history category III the guideline range is 210-262 months. Using a category II, the range is 188-235 months. Hockel received a sentence of 240, which is above the guideline range and there were no findings to support an upward departure. Therefore, his sentence must be set aside and his case remanded for resentencing.

V

We find no merit to Hearn's claim that his sentence must be reduced proportionally to any reduction in Hockel's sentence on remand. Hearn was sentenced under a correct application of the guidelines. Hockel was not, and his sentence must be corrected. These facts do not support a claim to proportionate sentences.

AFFIRMED AS TO ALL ISSUES EXCEPT HOCKEL'S SENTENCE, WHICH IS VACATED AND HIS CASE REMANDED FOR RESENTENCING.