United States v. Orrelien ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4766
ORELUS ORRELIEN, a/k/a Jerome
Jean,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-98-7-F)
Submitted: June 29, 1999
Decided: August 3, 1999
Before MURNAGHAN, ERVIN, and WILKINS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Michael S. Petty, Sr., Raleigh, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Michael G.
James, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Orelus Orrelien pled guilty to conspiracy to possess cocaine with
intent to distribute, see 21 U.S.C. § 846 (1994) (Count One); posses-
sion of cocaine with intent to distribute, see 21 U.S.C. § 841(a)
(1994), and aiding and abetting, see 18 U.S.C. § 2 (1994) (Count
Four); distribution of cocaine, see 21 U.S.C. § 841, and aiding and
abetting, see 18 U.S.C. § 2 (Count Five); and criminal forfeiture, see
21 U.S.C.A. § 853 (West Supp. 1999) (Count Six). Orrelien appeals
his sentence of 292 months incarceration. He contends that the district
court's determination that he was responsible for 150 kilograms of
cocaine was based on unreliable hearsay. He also argues that the court
clearly erred in finding that he was a leader in the offense. See U.S.
Sentencing Guidelines Manual § 3B1.1(a) (1997). We affirm.
Orrelien was arrested in November 1997 after he participated in the
sale of one kilogram of cocaine to an undercover agent in Dunn,
North Carolina. Eleven kilograms of cocaine and twelve grams of
crack were seized from Orrelien and the others arrested with him--
Ellus Larous, Arold Pascal, Mezilord Masselus (a/k/a Cogito Lari-
viere), and Macula Anty. Pascal disclosed that they obtained the
cocaine in Miami, Florida, and brought it to North Carolina for distri-
bution. Eight kilograms had already been sold elsewhere in North
Carolina. However, Orrelien was held responsible for similar conduct
involving cocaine and crack cocaine in the late 1980's and early
1990's based on statements made to a Drug Enforcement Administra-
tion (DEA) agent by Paul Colson and Fontele Groves, who were serv-
ing sentences for federal drug offenses. Both men reported engaging
in drug trafficking with Orrelien during those years.
The probation officer attributed 138 kilograms of cocaine to Orre-
lien from Colson's statement and ten kilograms of cocaine plus 32.14
kilograms of crack from Groves' statement. The recommended base
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offense level was 38. See USSG § 2D1.1 (150 kilograms of cocaine
or 1.5 kilograms of crack). At the sentencing hearing, the DEA agent
testified about his interviews with Colson and Groves. Orrelien
argued that neither statement was reliable evidence. Without making
a specific finding as to reliability, the district court found that the pro-
bation officer had correctly calculated the amount of cocaine for
which Orrelien was responsible, but the court deducted ten kilograms
of cocaine attributed to him from information in Groves' statement.
Orrelien contends that the district court erred by considering the state-
ments of Colson and Groves in determining the base offense level
because both statements were unreliable and uncorroborated hearsay.
He also argues that his right of confrontation was abridged because
neither Colson nor Groves was present to be cross-examined.
When the amount of drugs seized does not reflect the scale of the
offense, the district court "shall approximate the quantity of the con-
trolled substance." USSG § 2D1.1, comment. (n.12). In resolving all
disputed matters at sentencing, the district court may consider any rel-
evant information, including hearsay, "provided that the information
has sufficient indicia of reliability to support its probable accuracy."
USSG § 6A1.3, p.s. and commentary; United States v. Love, 134 F.3d
595, 607 (4th Cir. 1998) (uncorroborated hearsay may be considered
if defendant has opportunity to rebut or explain), cert. denied, ___
U.S.___, 66 U.S.L.W. 3790 (U.S. June 15, 1998) (No. 97-9085).
Therefore, Orrelien's right of confrontation was not implicated by the
introduction of hearsay evidence. Due process is satisfied when hear-
say is introduced at sentencing if the evidence has"``some minimal
indicia of reliability beyond mere allegation.'" United States v. Hicks,
948 F.2d 877, 883 (4th Cir. 1991) (citations omitted).
The district court did not explain its reasons for discounting the ten
kilograms of cocaine from Groves' statement or say whether it found
the 32.14 kilograms of crack in Groves' statement to be credible.
Similarly, the district court did not expressly state its reasons for find-
ing that Colson's statement was reliable; however, its ruling impliedly
adopted the reasons argued by the government concerning that state-
ment. We are thus able to "discern the factual bases" of the district
court's ruling on the Colson statement by examining the govern-
ment's argument. See United States v. Walker, 29 F.3d 908, 911 (4th
Cir. 1994) (district court's adoption of presentence report's recom-
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mended factual findings is adequate if context makes clear that all
defendant's objections are thereby resolved). Because the record does
not reveal why the district court ruled as it did on the Groves state-
ment and because either statement was sufficient (if reliable) to estab-
lish a base offense level of 38, we will consider only the reliability
of the Colson statement.
A number of factors put forth by the government supported the
reliability of Colson's statement. First, Colson knew Orrelien's real
name and the alias he used during his early years in Florida. Second,
he knew the name of a Columbian source also known to Orrelien.*
In addition, Colson's statement was generally consistent with the
information the DEA agent received from another federal agent in
Florida who was familiar with Orrelien. Last, Colson knew the names
of Orrelien's associates. Therefore, we find that the district court did
not err in considering Colson's statement as reliable hearsay.
Orrelien also argues that the district court's finding that he was
responsible for 150 kilograms of cocaine did not take into account the
five months Orrelien spent in prison in 1988 and 1989. He asserts that
seventeen kilograms of cocaine should be deducted from the 138 kilo-
grams of cocaine the probation officer estimated he obtained for dis-
tribution during this time. However, it is clear that Orrelien did not
withdraw from the cocaine conspiracy while he was in prison. There-
fore, his relevant conduct could include cocaine bought or sold by his
co-conspirators while he was in prison. See USSG § 1B1.3(a)(1)(B)
(relevant conduct includes reasonably foreseeable acts of others in
furtherance of joint criminal activity). Moreover, the probation offi-
cer's estimate used the low estimate of two kilograms every three
weeks, although Colson said Orrelien obtained between two and five
kilograms every two to three weeks. Consequently, the district court
did not clearly err in finding that Orrelien was responsible for at least
150 kilograms of cocaine.
Orrelien next contends that there was insufficient evidence that he
had a leadership role in the offense and that the district court should
_________________________________________________________________
*Colson said that "Juan" was Orrelien's source. When Orrelien testi-
fied at sentencing, he admitted that he knew a Columbian source named
Juan, although he denied having any dealings with him.
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have, at most, found that he was a supervisor or manager. See USSG
§ 3B1.1(b). The district court had before it reliable information that
Orrelien obtained cocaine in large amounts from his sources in Flor-
ida and transported it to North Carolina where it was distributed and
that he employed Colson to provide security for his stash of drugs, to
collect money from lower-level distributors, and to pick up and
deliver cocaine. Orrelien did not argue in the district court that a man-
ager or supervisor role adjustment would be appropriate; he main-
tained that he was merely a one-time courier. Moreover, Orrelien's
co-defendant Pascal described Orrelien and Ellus Larous as equal
partners with each other and with the sources in Florida. There was
no evidence of anyone from whom Orrelien took direction. On these
facts, we cannot find that the district court clearly erred in determin-
ing that Orrelien was a leader in the offense. See United States v.
Reavis, 48 F.3d 763, 768 (4th Cir. 1995) (standard of review).
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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