United States v. Williams ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5680
ANDRE WILLIAMS, a/k/a Andre
Curry, a/k/a Drey,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-93-48)
Submitted: July 23, 1996
Decided: August 6, 1996
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Marcia Gail Shein, NATIONAL LEGAL SERVICES, INC., Atlanta,
Georgia, for Appellant. William D. Wilmoth, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Andre Williams appeals from a district court judgment resentenc-
ing him following remand by this court to determine whether Wil-
liams' sentence for various drug related offenses was improperly
enhanced based on information Williams provided pursuant to his
plea agreement. In our initial consideration of this case, the contro-
versy centered on whether the probation officer, in violation of the
guidelines and the plea agreement, relied on Williams' own affidavit,
in which he extensively recounted his involvement in the drug trade,
in recommending an enhancement for being an organizer or leader of
a criminal activity involving five or more participants, or which was
otherwise extensive, pursuant to United States Sentencing Commis-
sion, Guidelines Manual, § 3B1.1(a) (Nov. 1993). We found it impos-
sible to ascertain from the record whether the probation officer relied
on the affidavit, and remanded for the district court to consider the
matter.
On remand, the district court conducted a hearing, at which the
probation officer testified that his reference to the affidavit was inad-
vertent, that he was aware at the time he prepared his report that the
guidelines prohibited reliance on the affidavit, and that he did not in
fact do so. He stated that his recommendation was essentially based
on information provided to him by DEA special Agent Kenneth Win-
kie, and his concurrence with Winkie that this evidence established
Williams' position as an organizer or leader. This information
included excerpts from grand jury testimony of various individuals
who testified to their role and the roles of others in the drug distribu-
tion network of which Williams was a part. Winkie also provided affi-
davits from some of these individuals.
In this appeal, Williams no longer seriously pursues the position
that his sentence enhancement was improperly based on information
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provided in his own affidavit. In this vein, we note that the district
court expressly credited the probation officer's testimony that he did
not consider the affidavit. The focus of this appeal is Williams' con-
tention that the sentencing court improperly applied the enhancement
again on remand based on grand jury testimony which, in Williams'
view, lacks sufficient reliability to be considered in determining the
applicability of an enhancement. We disagree.
Williams first argues that the grand jury testimony should not have
been considered because it was inadmissible hearsay to which no rec-
ognized exceptions apply. In determining facts relevant to sentencing,
however, courts are not limited to consideration of evidence which
would be admissible at trial. 18 U.S.C. § 3661 (West 1985 & Supp.
1996). A sentencing court may even consider uncorroborated hearsay,
so long as the defendant is provided an opportunity to rebut or explain
it. See United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993).
Thus, section 6A1.3(a) of the guidelines, which provides that other-
wise inadmissible evidence may be considered so long as the informa-
tion contains "sufficient indicia of reliability to support its probable
accuracy," does not restrict the court's ability to consider reliable
hearsay. See United States v. Bowman, 926 F.2d 380, 381 (4th Cir.
1991). In keeping with these principles, sentencing courts may rely on
grand jury testimony so long as it is found to be sufficiently reliable.
See United States v. Williams, 10 F.3d 910, 914 (1st Cir. 1993);
United States v. Matthews, 5 F.3d 1161, 1164 (8th Cir. 1993); United
States v. Campbell, 985 F.2d 341, 347-48 (7th Cir. 1993).
The district court specifically found the grand jury testimony to be
reliable in this case, based on the testimony of agent Winkie. Winkie
reviewed the grand jury testimony in its entirety, and concluded that
regarding Williams' role in the drug distribution network, the grand
jury witnesses provided information consistent with each other, with
personal interviews he conducted with and affidavits he received from
some of those witnesses, and with police investigation reports. Win-
kie testified that his findings regarding Williams' role in the offense
were based on the "totality of everything," and that he was able to
verify the reliability of all information, including grand jury testi-
mony, by cross-referencing and cross-checking it against other infor-
mation obtained from various sources.
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Agent Winkie's verification efforts provided an adequate basis for
the court to conclude that the grand jury testimony in this case was
sufficiently reliable to be considered at sentencing, and for the court
to rely on the recommendation of Winkie and the probation officer to
find, by a preponderance of the evidence, that Williams was an orga-
nizer or leader under § 3B1.1(a). We note but reject the suggestion
raised in Williams' reply brief that this Court apply a "clear and con-
vincing" evidence standard to sentencing enhancement issues. See
McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986); United States v.
Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.), cert. denied, 493
U.S. 943 (1989).
Accordingly, the judgment of the district court is affirmed. We dis-
pense 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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