United States v. Gavin , 205 F. App'x 56 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-31-2006
USA v. Gavin
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1275
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-1275
____________
UNITED STATES OF AMERICA
v.
EUGENE LAMONT GAVIN,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 05-cr-00004-2E)
District Judge: Honorable Sean J. McLaughlin
____________
Submitted Under Third Circuit LAR 34.1(a)
October 24, 2006
Before: SMITH, FISHER and COWEN, Circuit Judges.
(Filed October 31, 2006)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
After pleading guilty to a charge of conspiring to possess with intent to distribute
five or more grams of cocaine base, Eugene Gavin was sentenced to 125 months
imprisonment. Gavin appeals his sentence claiming that the District Court erred (1) in
calculating the drug quantity, and (2) in basing Gavin’s sentence on facts that were
neither admitted by Gavin nor found by a jury. For the reasons that follow, we will affirm
the District Court’s sentence.
I.
We write only for the parties and thus will forgo a lengthy recitation of the factual
and legal background to this case. Gavin and his co-defendant, Michelle Nicole Welsh
(“Welsh”), were indicted by a grand jury in January 2005. The indictment charged both
Gavin and Welsh with conspiracy to possess with intent to distribute five or more grams
of a mixture and substance containing a detectable amount of cocaine base, in violation of
21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(iii). Both Gavin and Welsh pleaded guilty
in August 2005.
A pre-sentence report (“PSR”) was prepared for Gavin, in which his base offense
level was calculated to be 28. This calculation was based on statements made by Welsh
that she had received 1/8 of an ounce of crack cocaine at least nine times over a period of
a couple of weeks from Gavin. The PSR explained that
Nine 1/8 ounce quantities of cocaine base are equivalent to 1.125 ounces of
cocaine base. One ounce is equivalent to 28.35 grams. Thus, 1.125 ounces
of cocaine base is equivalent to 31.89 grams of cocaine base.
PSR ¶ 17. The PSR determined that because of the quantity of drugs, the base offense
level was 28. Three offense points were subtracted, which brought the offense level to
25, for Gavin’s acceptance of responsibility and guilty plea. Gavin filed exceptions to the
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PSR, in which he argued that he only supplied Welsh with 1/8 ounce of crack cocaine on
two occasions. According to Gavin, because one eighth of an ounce is approximately
3.54 grams, the amount he gave Welsh was approximately seven grams. If seven grams
were used to calculate the base offense level, it would have been a 26.1 See U.S.S.G.
§ 2D1.1(c)(7).
Welsh testified at Gavin’s sentencing and the District Court found her testimony
regarding the quantity of crack cocaine she received from Gavin to be credible. The
District Court dismissed Gavin’s exceptions and sentenced him based on a finding by a
preponderance of the evidence that he gave Welsh at least 20 grams of crack cocaine.
The sentence was 125 months of imprisonment, which is less than the statutory maximum
under 21 U.S.C. § 841(b)(1)(B)(iii). Gavin timely filed this appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a)(1). See United States v. Cooper, 437 F.3d 324, 327-28, nn.3-4 (3d Cir. 2006).
II.
Gavin first argues that the District Court’s determination of the quantity of the
cocaine base distributed by Gavin was not supported by a preponderance of the evidence.
The burden of proof under the guidelines for sentencing facts is a preponderance of the
evidence. See Cooper, 437 F.3d at 330. We review a district court’s findings of fact
1
After the reductions, the offense level would have been a 23, and the advisory
guideline range would have been 84 to 105 months imprisonment.
3
regarding quantities of drugs for clear error.2 See United States v. Gibbs, 190 F.3d 188,
204 (3d Cir. 1999).
In United States v. Gibbs, we recognized that district courts may estimate drug
quantities based on a co-defendant’s testimony “about average amounts sold per day
multiplied by the length of time sold.” Id. Both parties agree that sometimes a degree of
estimation is necessary when determining drug quantities because of the covert nature of
the drug trade. See United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993).
Additionally, the absence of direct evidence does not prevent a district court from
estimating drug quantities. See id. However, the evidence must possess “sufficient
indicia of reliability to support its probable accuracy.” Gibbs, 190 F.3d at 203 (citation
omitted).
In this case, Welsh testified at the sentencing hearing. She was cross-examined
and even was questioned by the District Court. Although Welsh admitted that she did not
know exactly how many times she received crack cocaine from Gavin, she testified that
she received an eighth of an ounce of crack cocaine from Gavin at least ten times 3 over a
period of at least two or three weeks. In order for the quantity of drugs to be at least 20
2
The parties agree that the clearly erroneous standard should govern this case.
Even though the United States Supreme Court excised the “clearly erroneous” standard
from 18 U.S.C. § 3742(e), the standard of review for findings of fact is still clear error.
See, e.g., United States v. Robinson, 433 F.3d 31, 38 (1st Cir. 2005).
3
As discussed above, the PSR provides that Welsh informed the authorities that she
had bought crack cocaine from Gavin on at least nine occasions.
4
grams, there only had to be about seven purchases of an eighth of an ounce of crack
cocaine. The District Court found Welsh’s testimony credible, especially in light of its
opportunity to observe her demeanor and her description of Gavin’s house where she
bought the crack cocaine, and despite the fact that she was uncertain of the number of
times she bought crack cocaine from Gavin and the time period. It was aware that Welsh
had a deal with the government, and it considered as an additional indicia of reliability the
fact that Welsh’s testimony regarding the amount of the crack cocaine that she received
from Gavin would increase the drug quantity considered in her own sentencing. The
District Court found that, at a minimum, the United States proved by a preponderance of
the evidence that Gavin had 20 grams of crack cocaine to Welsh.
In light of the record, we find that there was sufficient evidence in this case for the
District Court’s finding that the government proved by a preponderance of the evidence
that Gavin sold at least 20 grams of crack cocaine to Welsh.4 Therefore, we will affirm
the District Court’s determination of the quantity of drugs in this case.
4
We reject Gavin’s argument that the evidence was not sufficient because there
was no direct evidence, such as notes or cellular phone records, to confirm Welsh’s
testimony. As we explained above, direct evidence is not required for a district court to
estimate drug quantity as long as the evidence possesses “sufficient indicia of reliability.”
See Gibbs, 190 F.3d at 203 (citation omitted). We believe that the record demonstrates
that the evidence in this case possessed sufficient indicia of reliability.
5
III.
Gavin next argues that the District Court’s sentence violated his Sixth Amendment
rights under United States v. Booker, 543 U.S. 220 (2005), because the factual
determinations of drug quantity were neither admitted by Gavin nor determined by a jury.
According to Booker, “a fact (other than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts established by a plea of guilty
. . . must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
Booker, 543 U.S. at 244. The statutory maximum after Booker is the maximum
prescribed by the United States Code. See id. at 259. The statutory maximum for
conspiracy to possess with intent to distribute 5 or more grams of cocaine base, which
Gavin pled guilty to, is forty years. See 21 U.S.C. § 841(b)(1)(B)(iii). Gavin’s sentence
is 125 months, which is less than forty years. Therefore, the sentence is within the
statutory maximum and the facts considered in determining the length of the sentence
only had to be proved by a preponderance of the evidence. See Cooper, 437 F.3d at 330.5
IV.
We agree with the District Court’s findings that the United States proved by a
preponderance of the evidence that Gavin sold at least 20 grams of crack cocaine to
Welsh. Additionally, because the District Court’s findings of drug quantity did not
5
Gavin did not raise a claim on appeal that his sentence was unreasonable. The
District Court considered the § 3553(a) factors and sentencing grounds raised by the
parties. See Cooper, 437 F.3d at 332. Therefore, we find the sentence is reasonable.
6
increase Gavin’s sentence to more than the statutory maximum it did not need to be
admitted by the defendant or found by a jury. Therefore, we will affirm the judgment of
the District Court.
7