United States v. Taylor ( 2002 )

Revised January 15, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-30936
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SHANNON TAYLOR, also known as Shandoe,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
December 21, 2001
Before JONES, and DeMOSS, Circuit Judges, and LIMBAUGH,1 District
Judge.
DeMOSS, Circuit Judge:
Shannon Taylor was charged in a 17-count indictment with ten
other individuals. Taylor ultimately entered into a plea agreement
in which he agreed to plead guilty to count one (conspiracy to
distribute cocaine base) and to provide substantial assistance in
1
District Judge of the Eastern District of Missouri,
sitting by designation.
the case. In exchange, the government agreed to dismiss the
remaining four counts against Taylor and to file a § 5K1.1 motion
for downward departure. As part of his plea agreement, Taylor was
granted use immunity for statements to law enforcement agents and
testimony against others. Taylor now appeals his sentence because
he claims that the PSR used to determine his sentence contained
drug quantities that were not known to the government until he
provided the information.
BACKGROUND
Shannon Taylor (a.k.a. Shandoe) was charged with five drug
distribution and conspiracy counts in a 17-count indictment along
with ten other individuals. Pursuant to a plea agreement, Taylor
pleaded guilty to count one (conspiracy to distribute cocaine base)
and the government agreed to dismiss the remaining counts against
Taylor and to file a § 5K1.1 motion for downward departure if
Taylor provided substantial assistance. As part of his plea
agreement, Taylor was granted use immunity for statements to law
enforcement agents and testimony against others. Based on the pre-
sentencing investigatory report (“PSR”) issued, Taylor received 240
months imprisonment (the statutory maximum) and, subsequent to the
government’s filing of a § 5K1.1 motion, the court departed
downward and sentenced Taylor to 120 months of imprisonment.
Taylor objected to the trial court’s use of the PSR and
2
specifically objected to paragraphs 15, 16, 17 and 18 of the PSR as
to the drug quantities alleged.
Paragraph 15 alleges that Taylor was supplied with
approximately 25 ounces of cocaine base from January 1999 until
early December 1999. Paragraph 16 alleges that Taylor also
received approximately two ounces of cocaine base every two weeks
in 1999 from a source in Cullen, Louisiana, and concludes that the
total distributes from this source was approximately 100 ounces
(though this number is clearly incorrect2). Paragraph 17 provides
that, on one occasion, Taylor and Dale Anderson purchased nine
ounces of cocaine base in Cullen, Louisiana. Paragraph 18 provides
that the total amount of cocaine base attributed to Taylor for the
conspiracy charged is at least 134 ounces or 3,798.90 grams, or
3.798 kilograms.
Taylor objects that the information in paragraphs 15, 16 and
17 is based on information that he provided and that it is
therefore protected by his use immunity agreement. Taylor further
objects that paragraphs 16 and 17 are in regard to transactions
totally unrelated to the conspiracy with which he is charged.
Finally Taylor argues that the total amount reached in paragraph 18
is wrong (based on the faulty 100 ounce number in paragraph 16) but
concedes that even if the math is corrected, if all else remains
2
The time period alleged is approximately 50 weeks. Two
ounces every two weeks is therefore a total of 50 ounces.
3
the same then this mistake will not affect Taylor’s base level of
38.3 If Taylor is correct in his assertion that the drug
quantities in the PSR should not have been used, this would
drastically alter his base level.
DISCUSSION
Standard of review
A defendant may appeal a sentence imposed under the Sentencing
Guidelines if the sentence “(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or (3) is greater than the sentence
specified in the applicable guideline range . . . .” 18 U.S.C.
§ 3742(a); United States v. Shipley, 963 F.2d 56, 58 (5th Cir.
1992). A district court’s application of the Sentencing Guidelines
is reviewed de novo; however, the sentencing court’s findings of
fact are reviewed for clear error. United States v. Peterson, 101
F.3d 375, 384 (5th Cir. 1996). In determining a sentence, the
district court is not bound by the rules of evidence and may
consider any relevant information without regard to its
3
There also appears to be at least two other abnormalities
in the proceedings. In count 13 of the original indictment, Taylor
was alleged to have sold over five grams of cocaine base, which
Taylor insisted was incorrect. He was right, as the crime lab
report showed that the amount was only 2.6 grams and not the 6.2
alleged. Also, the government seems to have dropped from the PSR
an allegation that Taylor was a “mid-level distributor” possibly in
response to Taylor’s objection that there was no evidence to
support the allegation. This places Taylor’s base level at 35.
4
admissibility provided the information considered has sufficient
indicia of reliability. United States v. Shacklett, 921 F.2d 580,
584 (5th Cir. 1991) (citing U.S.S.G. § 6A1.3(a)). The district
court’s reliance on a PSR for the quantity of drugs is based,
therefore, on a finding of fact that the PSR’s information contains
an indicia of reliability and should be reviewed for clear error.
See id. (finding that the district court clearly erred in relying
on the drug quantity in a PSR because it lacked any indicia of
reliability); Cf. Peterson, 101 F.3d at 384 (finding that a
district court’s determination of the amount of financial loss,
based in part on a PSR, is a factual finding that will be reviewed
for clear error).
The district court’s decision to base the sentence on the contested
PSR
The only fact in dispute in this case is whether the
information provided as to drug quantities in the PSR was provided
by Taylor or by other sources, independent of the information
provided by Taylor as part of his plea agreement.4 Taylor contends
that he either provided the information directly or gave leads that
were used against him to get the quantities in dispute. The
government answers that the information was wholly obtained from
4
At sentencing, information provided under a use immunity
agreement may be considered but shall not be used in determining
the applicable guideline range except to the extent provided in the
agreement. U.S.S.G. § 1B1.8(a). Use of such information is
acceptable if the information was “known to the government prior to
entering into the cooperation agreement . . . .” § 1B1.8(b)(1).
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outside sources, independent of Taylor’s assistance. Neither side
has offered evidence in support of their claim and so the question
becomes one of who has the burden of proof. If it is Taylor, then
he has failed and his claim is without merit. If the government
has the burden, however, then the sentence should be vacated and
the case should be remanded for re-sentencing.
Generally, a PSR bears sufficient indicia of reliability to
permit the district court to rely on it at sentencing. United
States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000); United States
v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). “The PSR, however,
cannot just include statements, in the hope of converting such
statements into reliable evidence, without providing any
information for the basis of the statements.” Dabeit, 231 F.3d at
983. Normally, the defendant has the burden to show that the
information relied on in a PSR is inaccurate. United States v.
Franklin, 148 F.3d 451, 460 (5th Cir. 1998); Ayala, 47 F.3d at 490.
The rebuttal evidence presented by the defendant must show that the
PSR’s information is materially untrue, inaccurate or unreliable.
United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
Though the standard set out above would indicate that Taylor
has failed to meet his burden, the burden is not the same when a
“use immunity” plea agreement is involved. “Under a grant of use
immunity, the government is prohibited from using information
provided by the defendant in any criminal case.” United States v.
6
Cantu, 185 F.3d 298, 301 (5th Cir. 1999). This prohibition is
comprehensive, i.e., the government may not use the defendant’s
testimony directly as evidence or indirectly as an investigatory
lead. Id. at 301-02; Kastigar v. United States, 406 U.S. 441, 460-
62 (1972). Furthermore, information that is provided pursuant to
such an agreement may not be used in determining the applicable
guideline range under the Sentencing Guidelines. U.S.S.G.
§ 1B1.8(a). “When a defendant claims that the government
wrongfully used immunized testimony, the government has the burden
of proving by a preponderance of the evidence ‘that the evidence it
proposes to use is derived from a legitimate source wholly
independent of the compelled testimony.’” Cantu, 185 F.3d at 302(quoting Kastigar, 406 U.S. at 460); see also United States v.
Fulbright, 804 F.2d 847, 852 (5th Cir. 1986) (applying Kastigar in
sentencing context in a pre-guidelines case).
The government contends that the burden is on Taylor to rebut
the PSR, which Taylor has not done. The government further cites
to United States v. Gibson, 48 F.3d 876 (5th Cir. 1995), to support
its position that the district court was correct in relying on the
PSR. Gibson, however, actually supports the proposition that the
burden is on the government to prove that the drug quantity
information came from sources other than the defendant. In Gibson,
a defendant’s sentence was calculated using information provided by
two co-defendants. Id. at 877. The defendant, Gibson, asserted
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that the information was based on information provided by him and
its use violated a plea agreement that he had entered into with the
government. Id. at 879. Though a probation officer testified that
none of the information came from the defendant, Gibson asserted
that the government’s burden could not be satisfied by the
probation officer’s testimony alone. Id. The court responded
that:
Because the probation officer unequivocally
testified that none of the drug-quantity
information obtained from Gibson . . . was used to
determine his offense level, and because it was
Gibson who subsequently corroborated his co-
defendants’ accounts of the drugs transported
during the earlier trips, the district court’s
determination that § 1B1.8 was not violated will
not be disturbed.
Id. (emphasis added). This holding not only tacitly approves of
the burden being on the government but also makes it clear that
this burden was met because the probation officer unequivocally
testified as to the matter.
Further support that the burden lies with the government can
be found in United States v. Shacklett, 921 F.2d 580 (5th Cir.
1991). In Shacklett, the district court relied on the
unsubstantiated assertions of the probation officer that the
information regarding drug amounts came from coconspirators and law
enforcement officers. Id. at 584. There was nothing in the record
in Shacklett, aside from the PSR, to corroborate this. Id. The
defendant pleaded guilty to one count of conspiring to manufacture
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and to possess with intent to distribute nine pounds of
amphetamine. Id. at 581. At sentencing, Shacklett objected to the
court’s use of 66 pounds of amphetamine to calculate his offense
level, rather than the nine pounds stipulated to in the plea
agreement because, he claimed, the government reliably knew of only
the lesser amount before he cooperated. Id. at 584. The
government conceded that when Shacklett agreed to cooperate, only
nine pounds of amphetamine were attributable to Shacklett. Id.The probation officer intervened, stating that the government knew
of the 66 pounds because Preston Isham, a convicted member of the
same drug conspiracy, had informed the government that 66 pounds of
amphetamine had been produced in his labs in which Shacklett was
the “cook.” Id. The district court relied on the probation
officer’s assertion, adopted the findings of the PSR, and sentenced
Shacklett based on 66 pounds of amphetamine. Id. at 582. This
Court reversed that finding on the basis that no indicia of
reliability existed to support the probation officer’s contention.
Id. at 584.
This Court specifically found that the government had failed
to establish that the evidence had any indicia of reliability,
stating:
The PSR does not refer to the source of the "facts"
it contains and is unclear as to who (if not
Shacklett) or what provided the information to the
probation officer. Throughout the PSR, the
probation officer refers to "an interview of
9
Isham," conducted by the DEA, but nowhere is it
stated when, where, by whom, or for what purpose
Isham was interviewed. It is unclear whether the
probation officer who conducted Shacklett’s
presentence investigation directly contacted the
unnamed DEA agent, spoke to Isham personally, or
relied on a written report of the interview.
Therefore, we are left to review a sentence based
on an unproduced report, which could have been
either written or oral, made by some unidentified
DEA agent at some point before Shacklett cooperated
with the government. Contrary to the government's
assertion on appeal, the district court could not
have made a credibility determination between
Shacklett and Isham, because neither Isham nor the
mystery DEA agent ever appeared before the
sentencing court.
Despite ample notice that Shacklett challenged the
reliability of the sixty-six pound quantity, the
district court never required the probation officer
who prepared Shacklett’s PSR to produce the report
or support his conclusion in any way. Rather, the
court based Shacklett’s sentence on the probation
officer's bald assertion that the government knew
of the amount prior to Shacklett’s cooperation.
The district court clearly erred in using the
sixty-six pounds as a basis for Shacklett’s
sentence, without more than the probation officer's
conclusory statement, particularly in light of the
government's concession on the issue.
Id. at 584. Though the government tries to distinguish the present
case from Shacklett on the basis that the government in Shacklett
conceded at one point that the defendant was correct, the court in
Shacklett made it clear that it was the ambiguity of the evidence
and lack of testimony that destroyed the reliability of the PSR.
Considering the number of errors made in this case, the reliability
of the PSR was already on shaky ground. See n.2-3, supra.
Furthermore, it seems clear from Shacklett and Gibson that, when a
10
use immunity agreement is involved, and the defendant questions the
sources of the evidence used against him at sentencing, the burden
is on the government to show that the evidence is from outside
sources.
The present case is very similar to Shacklett. Both cases
involve a defendant who engaged in a plea agreement which granted
him use immunity. As in Shacklett, the PSR in the present case
contained information that, from the record, already seemed
questionable at the time the district court was considering it for
sentencing. Also, as in Shacklett, the probation officer did not
testify as to where the information contained in the PSR came from.
This Court is convinced, therefore, that the burden was on the
government to show that the PSR had an indicia of reliability as
required by U.S.S.G. § 6A1.3(a). The government’s bald assertions
that the evidence did not come from Taylor are not enough to
sustain this burden. Id.; see also United States v. Elwood, 999
F.2d 814, 817-818 (5th Cir. 1993) (citing United States v.
Paterson, 962 F.2d 409, 415 (5th Cir. 1992) to support the holding
that, when the burden is on the government, unsworn assertions by
government agents do not provide, by themselves, a sufficiently
reliable basis on which to sentence a defendant); cf. Gibson, 48
F.3d at 879 (holding that when a probation officer testified, the
district court did not err in relying on the PSR). Had the
probation officer testified as to where the information came from
11
and been able to give more details, then this case might have had
a different outcome. See Gibson, 48 F.3d at 879. As it stands, it
should be remanded.
CONCLUSION
The standard of review for findings of fact such as drug
quantity and whether or not a PSR’s information has an indicia of
reliability should be reviewed for clear error. Though such cases
normally place the burden on the defendant to produce evidence
rebutting the PSR, when a plea agreement involving use immunity is
involved, the burden shifts to the government to prove that the
information in the PSR is not based on information obtained from
the defendant. The threshold for meeting this burden is low; in
many cases the government need only present testimony as to the
source of the information. When the government relies on bald
assertions, however, as they have done in the present case, the
government fails to meet this burden. Therefore, having carefully
reviewed the record of this case and the parties’ respective
briefing and for the reasons set forth above, we conclude that the
district court clearly erred in considering the PSR because the
court did not require the government to prove that the PSR
contained an indicia of reliability. The district court’s sentence
is VACATED, and the case is REMANDED for re-sentencing.
VACATED AND REMANDED.
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