US v. David Otero-Campo, No. 10-4257 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4257 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DAVID OTERO-CAMPOS, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00027-RLV-DCK-3) Submitted: March 30, 2011 Decided: April 19, 2011 Before AGEE, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Ross H. Richardson, Assistant Federal Defender, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David 151-month Otero-Campos sentence after appeals pleading his guilty conviction pursuant to and a plea agreement to one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2006), and one count of possession with intent to violation distribute of 18 cocaine U.S.C. 841(b)(1)(A) (2006). § 2 and aiding (2006), 21 and abetting, U.S.C. §§ in 841(a)(1), Otero-Campos s sole assertion on appeal is that the district court violated his due process rights when it enhanced his sentence based on evidence sufficient indicia of reliability. This findings for court clear reviews error and he asserts lacked Finding no error, we affirm. the district its legal court s factual conclusions de United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008). novo. The deferential clear error standard of review requires reversal only if this court is left with the definite conviction that a mistake has been committed. Stevenson, 396 F.3d 538, 542 (4th Cir. and firm United States v. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). District latitude as to sentence after 438 F.3d 437, the a 439 courts traditionally information conviction. (4th Cir. they 2 may United 2006) have been consider States (internal given in v. wide passing Nichols, quotation marks omitted). That is because it is highly relevant if not essential to the selection of an appropriate sentence for the sentencing court to possess the fullest information possible concerning the defendant s life and characteristics. Id. at 440 (internal quotation marks and alterations omitted). Thus, a sentencing court may consider any relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability . . . Guidelines Manual ( USSG ) § 6A1.3(a) U.S. Sentencing (2008). See United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010) ( [A] sentencing court may give weight to any relevant information before it, including uncorroborated hearsay. . . . ); see also United States v. Paulino, 996 F.2d 1541, 1547 (3d Cir. 1993) ( [A] sentencing judge may consider information, largely unlimited as to kind or source, that would be inadmissible at trial. ) (internal quotation marks omitted). There information instance, are a district this court constitutional court has may limitations consider, construed various on the however. For Supreme Court decisions as recognizing a due process right to be sentenced only on information which is accurate. Nichols, 438 F.3d at 440 (internal quotation marks and brackets omitted). Thus, the Guidelines explicitly suggest that information relied upon at 3 sentencing support should its reviewed probable the information sufficient relied sufficient indicia accuracy. district indicia accuracy. have court upon of USSG record by the of § 6A1.3(a). and conclude district reliability to reliability court support its to We have that the possessed probable We thus conclude that the district court did not err when it calculated Otero-Campos s Guidelines range. Based on the foregoing, we affirm the district court s judgment. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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