United States of America, Plaintiff-appellee, v. Clarence D. Williams, Defendant-appellant, 962 F.2d 16 (9th Cir. 1993)

MEMORANDUM^** 

Clarence D. Williams appeals his sentence under the Sentencing Guidelines (Guidelines) following his guilty plea to manufacturing marijuana plants and maintaining a place for the manufacture of marijuana, in violation of 21 U.S.C. §§ 841(a) (1) and 856(a) (1). Williams contends that the district court erred by considering the information from a confidential informant in its decision to include 79 marijuana plants found in his codefendant's residence in its calculation of Williams' offense level.¹  We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court's construction and interpretation of the Guidelines. United States v. Eaton, 934 F.2d 1077, 1078 (9th Cir. 1991). Findings of fact underlying a sentencing determination are reviewed for clear error. United States v. Burns, 894 F.2d 334, 336 (9th Cir. 1990).

Williams concedes that there was some evidence indicating that he and his codefendant and son, Randall Williams, were acting as partners and aiding and abetting one another in the marijuana growing operation. Nevertheless, Williams contends that the district court erroneously relied on information from a confidential informant indicating that Williams and his codefendant were acting as partners or acting in a way which would make each responsible for the marijuana grown by the other. Williams argues that because the informant's claims were not shown to be reliable, and were grossly exaggerated and most likely false, the district court should not have considered them in its sentencing determination. Williams also appears to contend that absent the information provided by the informant, a finding of such a joint undertaking would not be possible.

In sentencing a defendant, the district court is not restricted to evidence that would be admissible at trial and may consider any information that has sufficient indicia of reliability to support its probable accuracy. The district court may consider hearsay information in sentencing a defendant. United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988). "Only when the hearsay is so inadequately supported that the factual basis for believeing it is almost nil can it be argued that the evidence should not have been considered." Id. U.S.S.G. § 6A1.3(a); United States v. Burns, 894 F.2d 334, 337 (9th Cir. 1990). Although sentencing factors need not be proven beyond a reasonable doubt, due process requires that the district court make factual determinations underlying application of the Guidelines by a preponderance of the evidence. United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990).

In determining a defendant's base offense level, the district court is to consider "all acts and omissions committed or aided and abetted by the defendant for which the defendant would be otherwise accountable that occurred during the commission of the offense of conviction, ... or that otherwise were in furtherance of that offense." U.S.S.G. § 1B1.3(a) (1). "In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant 'would be otherwise accountable' also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably forseeable by the defendant." U.S.S.G. § 1B1.3, comment. (n. 1).

Here, the district court determined that the information provided by the informant was credible because it was consistent with other evidence presented at Williams' suppression hearing. On this record, we cannot say that the district court's credibility determination as to the information from the informant was clearly erroneous. See Burns, 894 F.2d at 336. Thus, because the information had sufficient indicia of reliability to support its probable accuracy, the district court was entitled to consider the information in its sentencing determination. See id.

In addition to the information provided by the informant, the district court also relied on evidence that Williams' name was on his codefendant's electrical power account, and that Williams admitted to the probation officer who prepared the presentence report that he was growing marijuana plants at his own and at his codefendant's residence. Williams does not contest the district court's consideration of this evidence. At Williams sentencing hearing, the court stated that although the informant's testimony was entitled to "some credence," the court gave much more credence to Williams' own statement that he was growing marijuana at both residences and to the evidence that Williams' was paying for electrical power at both residences. In light of this evidence, the district court did not clearly err by finding that the marijuana growing operation was a joint undertaking between Williams and his codefendant. Thus, Williams is accountable for the marijuana found at his codefendant's residence in addition to that found at his own residence. See U.S.S.G. § 1B1.3, comment. (n. 1); see also United States v. Turner, 898 F.2d 705, 710-11 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990).

AFFIRMED.