United States v. Pippens ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40494
Summary Calendar
United States of America,
Plaintiff-Appellee,
versus
JOHNNY RAY PIPPENS, a/k/a
Terry Pippens,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:94-CR-50)
November 6, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Terry Pippens pled guilty to possessing less than 5 grams of
crack cocaine. The district court calculated a sentence based on
the assumption that Pippens was responsible for 78.18 grams of
cocaine or for some larger, unknown quantity. The 78.18 grams of
crack represents the combination of crack that an undercover
officer bought from Pippens and drugs found on the person of
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
codefendant Jenkins. Before this court, Pippens renews his claim
that the prosecution introduced evidence insufficient to connect
him to the 78.18 grams of crack. We disagree, and affirm.
The PSR recounted that Pippens sold crack from a house on
1501 Francis Lane in Plano, Texas. Several other dealers worked
from this crack house, including codefendant Raymond Jenkins, and
the dealers would often cover for each other and pool resources
to obtain crack. Eventually, law enforcement officials made a
series of undercover purchases of crack from the house, including
a 18.93 gram purchase from Pippens himself. About one week
before arresting Pippens, law enforcement officials arrested
Jenkins, along with two other individuals, and found in their
possession 59.25 grams of crack. No information connected these
other two individuals to the Plano crack house. The PSR recounts
that Pippens stated that he had previously told Jenkins never to
have such a quantity of cocaine at one time.
At the sentencing hearing, the district court accepted the
above information as sufficient to hold Pippens responsible for
the crack found in Jenkins possession. It also relied on the
testimony of a police officer in a prior hearing held before the
same court to the effect that the Plano house dealers distributed
large quantities of cocaine. The prosecution did not introduced
the transcripts of this hearing into evidence at Pippens'
sentencing. Neither Pippens nor his counsel was present at this
hearing.
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We apply the clearly erroneous standard to the district
court's finding that Pippens should be held accountable for 78.18
grams of crack. United States v. Maseratti, 1 F.3d 330, 340 (5th
Cir. 1993), cert. denied, 114 S. Ct. 1096 (1994). We find the
evidence presented to the district court sufficient to support
its holding.
First, we must disregard the testimony from the other
sentencing hearing. In United States v. Townsend, 55 F.3d 168,
172 (5th Cir. 1995), we held that a sentencing court may consider
testimony from another proceeding, but that "a defendant must
have notice that the court is considering the testimony such that
he will have the opportunity to respond to that testimony."
Pippens received no opportunity to respond in this case. The PSR
contains no mention of prior testimony, and the district court
relied on this evidence sua sponte. Neither Pippens nor his
counsel was present at the previous hearing. Under such
circumstances, the district court's findings of amount must stand
without any support from this testimony. On the other hand,
Pippen and his counsel were on notice of the use of the earlier
proceedings by the pre-sentence report itself. We need not
resolve this question because the findings of amount are
independently sustainable, as we will explain.
The district court did not err, however, by relying on the
PSR to attribute Pippens with responsibility over the 59.25 grams
of crack found in the possession of Jenkins and two other
individuals. In order to hold Pippens responsible for this
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quantity of crack, the district court had to find that this
possession was within the scope of his conspiracy and that
Jenkins' possession was reasonably foreseeable to Pippens.
U.S.S.G. § 1B1.3. We accept the PSR's unchallenged factual
statements as evidence, United States v. Foy, 28 F.3d 464, 476
(5th Cir.), cert. denied, 115 S. Ct. 610 (1994), although we "do
not tolerate inferences upon inferences." United States v.
Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993). The PSR established
that Jenkins sold crack from the Plano house, that Pippens knew
that Jenkins often possessed significant quantities of crack on
his person, and that the Plano house dealers often pooled
resources and covered for one another. Pippens presented no
evidence to counteract the findings of the PSR. On the basis of
these facts, the district judge could have inferred that Jenkins'
possession was in the scope of the Plano house conspiracy and
that Pippens could foresee that Jenkins would possess crack.
AFFIRMED.
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