United States v. Berthiaume, Dale W. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1553
United States of America,
Plaintiff-Appellee,
v.
Dale W. Berthiaume,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:99CR000092-001--John C. Shabaz, Chief Judge.
Argued September 15, 2000--Decided December 1, 2000
Before Flaum, Chief Judge, and Kanne and Williams,
Circuit Judges.
Williams, Circuit Judge. Appellant Dale W.
Berthiaume pleaded guilty to one count of
distributing methamphetamine in violation of 21
U.S.C. sec. 841(a)(1). After determining that
Berthiaume distributed 3,735 grams of
methamphetamine and that he possessed a firearm
during relevant conduct, the district court
sentenced Berthiaume to 212 months’ imprisonment.
Berthiaume appeals the district court’s
calculation of the drug quantity, its imposition
of a two-level upward adjustment for the
possession of a firearm and its denial of a
three-level downward adjustment for acceptance of
responsibility. Because we find that the district
court’s sentencing determinations were not
clearly erroneous, we affirm.
I
After being arrested for selling methamphetamine
to a government informant, Berthiaume was
indicted for four counts of violating 21 U.S.C.
sec. 841(a)(1), which prohibits the distribution
of controlled substances, including
methamphetamine. Berthiaume pleaded guilty to one
count of the indictment and the remaining counts
were dismissed.
At his sentencing hearing, Berthiaume contended
that, at a maximum, he was responsible for
selling 1,360.8 grams of methamphetamine. The
district court rejected Berthiaume’s contention
and found him responsible for distributing 3,735
grams, which set his base offense level at 34.
See U.S.S.G. sec. 2D1.1(c)(3) (1998). The district
court’s calculation included 225.14 grams
distributed during four controlled buys and found
during a search of Berthiaume’s residence, 675
grams from 1995 sales to Eric Cooke at 2 ounces
per month, 1,814.4 grams from 1996 sales to Cooke
at 4 ounces per month, and 1,020 grams from 1997
sales to Donald Neumann at 4 ounces per month for
9 months.
Pursuant to sec. 2D1.1(b)(1) of the United States
Sentencing Guidelines, the district court
increased Berthiaume’s base offense level by two
for the possession of a dangerous weapon. The
court based this upward adjustment on Cooke’s
testimony that he gave Berthiaume a Ruger model
10/22 rifle as partial payment of an outstanding
drug debt and that it was not clearly improbable
that a Ruger .44 magnum caliber revolver found in
an unfinished open area of Berthiaume’s residence
was connected to Berthiaume’s drug trafficking.
Because Berthiaume claimed responsibility for
only one-third of the quantity of drugs found
attributable to him by a preponderance of
evidence by the court, the district court
concluded that Berthiaume frivolously contested
relevant conduct and denied him a three-level
downward departure for acceptance of
responsibility.
On appeal, Berthiaume contests the reliability
of the testimony that the district court used in
calculating the quantity of drugs for which he
was accountable and in increasing his offense
level for the possession of a gun. Berthiaume
also challenges the court’s finding that he did
not accept responsibility for his conduct.
II
Berthiaume faces an uphill battle. "This court
’gives great deference to a district court’s
sentencing determinations and is reluctant to
disturb the district court’s findings of fact
unless clearly erroneous.’" United States v.
Hickok, 77 F.3d 992, 1007 (7th Cir. 1996)
(quoting United States v. Hassan, 927 F.2d 303,
309 (7th Cir. 1991)). This standard applies to
the calculation of drug quantities, United States
v. Morrison, 207 F.3d 962, 967 (7th Cir. 2000),
upward sentence adjustments, United States v.
Cain, 155 F.3d 840, 843 (7th Cir. 1998), and the
determination of whether the defendant has
accepted responsibility, United States v. Zehm,
217 F.3d 506, 515 (7th Cir. 2000). A reviewing
court may reverse a district court’s sentencing
conclusion only if after reviewing the record, it
is left with the firm and definite conviction
that a mistake has been made. United States v.
Galbraith, 200 F.3d 1006, 1011 (7th Cir. 2000).
A reviewing court gives special deference to
findings based upon credibility determinations,
which "’can virtually never be clear error.’"
Hickok, 77 F.3d at 1007 (quoting Anderson v. City
of Bessemer City, North Carolina, 470 U.S. 564,
575, 105 S. Ct. 1504, 1512 (1985)).
A
Berthiaume’s first challenge on appeal is to
the district court’s calculation of the quantity
of methamphetamine found attributable to him.
Berthiaume argues that Cooke’s testimony as to
the time frame of the sales and the quantities of
methamphetamine exchanged were inconsistent and
contradictory. "[A] sentencing court may consider
a wide range of information in making [the drug]
calculation, provided that this information
includes ’sufficient indicia of reliability to
support its probable accuracy.’" Morrison, 207
F.3d at 967 (quoting United States v. Robinson,
164 F.3d 1068, 1070 (7th Cir. 1999)).
The district court’s calculation was based on
methamphetamine found in a search of Berthiaume’s
residence, and Cooke’s testimony and Neumann’s
statement regarding methamphetamine that they
purchased from Berthiaume. Cooke’s testimony
accounted for two-thirds of the drug quantity
ultimately found by the court as attributable to
Berthiaume. "[I]n circumstances where evidence of
relevant conduct significantly increase[s] drug
calculations, statements of a defendant’s
associates might require further testimony as
substantial indicia of reliability." Morrison,
207 F.3d at 967.
Here, the reliability of Cooke’s testimony was
bolstered by the facts that he testified in-
person at the sentencing hearing and his
testimony was corroborated by another witness.
Contrary to Berthiaume’s characterizations,
Cooke’s testimony was consistent. Cooke testified
that starting in March 1995 he obtained an ounce
of methamphetamine a couple of times a month from
Berthiaume, i.e., semi-monthly. Cooke also stated
that in May 1995 or after the arrest of Jeff
Jenetta, he obtained an ounce every couple of
weeks from Berthiaume, i.e., bi-weekly. Either
way you interpret these statements, Cooke’s
testimony amounts to his purchasing about two
ounces of methamphetamine a month from Berthiaume
in 1995. The district court used two ounces a
month in its calculation for 1995 drug sales.
Furthermore, Cooke’s testimony as to the 1996
drug sales was corroborated by Brandon Hopkins,
a former customer of Cooke’s and a drug dealer.
Cooke testified that in 1996 he received two to
three ounces from Berthiaume every couple of
weeks, i.e., two to three ounces bi-weekly.
According to Hopkins, Cooke told him that Cooke
received about two to four ounces a couple of
times a month from Berthiaume, i.e., two to four
ounces semi-monthly. The district court used the
lower estimate--four ounces a month--in its
calculation of drug sales for 1996. In reaching
its conclusion, the district court specifically
stated that it had examined the testimony of
Cooke and determined it to be credible evidence.
The court also noted that it found Hopkins’
testimony to corroborate that of Cooke’s.
As the factfinder, the district court was in
the best position to judge Cooke’s credibility.
And where, as here, Cooke’s testimony was
corroborated, we cannot say that we are left with
a firm and definite conviction that the district
court made a mistake by including drug quantities
based on Cooke’s testimony.
Berthiaume also challenges the quantities that
Neumann claimed to have purchased from him as
unreliable. Neumann did not testify in-person at
sentencing, but his statements were proffered
through the testimony of Special Agent James Ohm.
Hearsay evidence is permissible at sentencing
where the rules of evidence do not apply.
Morrison, 207 F.3d at 967.
Ohm testified that Neumann told him that he
purchased 1,020 grams of methamphetamine from
Berthiaume over a nine-month period. Although
Neumann’s statement was uncorroborated, at
sentencing, "the trial court is entitled to
credit testimony that is ’totally uncorroborated
and comes from an admitted liar, convicted felon,
[or a] large scale drug-dealing, paid government
informant.’" Galbraith, 200 F.3d at 1012 (quoting
United States v. McEntire, 153 F.3d 424 (7th Cir.
1998)). Accordingly, the district court’s
reliance on the sales to Neumann was proper, and
its calculation of the drug quantity attributable
to Berthiaume was not clearly erroneous.
B
Berthiaume’s second challenge is to the district
court’s decision to increase his base offense
level for the possession of a weapon. Under the
sentencing guidelines, if a dangerous weapon
(including a firearm) was possessed during the
commission of an offense involving drugs, the
defendant’s base offense level must be increased
by two levels. See U.S.S.G. sec. 2D1.1(b)(1). The
government bears the burden of proving by a
preponderance of the evidence that the gun was
possessed during the commission of the offense or
relevant conduct. Cain, 155 F.3d at 843. But, the
government does not have to prove that the gun
was connected to the offense. Id. If the
government satisfies its burden, the burden
shifts to the defendant to show that it was
clearly improbable that the gun was connected to
the offense. Id.The government offered two bases upon which the
sentence enhancement could be applied. First, it
offered Cooke’s testimony that on one occasion he
sold a Ruger model 10/22 rifle to Berthiaume at
a discount in exchange for partial payment on a
drug debt. Berthiaume contends that the gun sale
was a strict cash transaction and was not
connected to the sale of methamphetamine. To
bolster his assertion, Berthiaume offered the
testimony of Randall Williamson, who was present
during a gun sale.
Williamson testified that Berthiaume purchased
a gun from Cooke at Berthiaume’s home, but paid
the full amount in cash and did not give Cooke a
"drug credit." As the factfinder, the district
court was entitled to give Cooke’s testimony
greater weight than that of Williamson’s. See
Anderson, 470 U.S. at 574, 105 S. Ct. at 1511("Where there are two permissible views of the
evidence, the factfinder’s choice between them
cannot be clearly erroneous.") Accordingly, we
find no clear error in the district court’s
decision to increase Berthiaume’s base offense
level for the possession of a gun.
Because only one weapon is needed to increase
the base offense level under the sentencing
guidelines, we do not need to determine whether
the court’s reliance on the government’s second
basis--that a gun found in Berthiaume’s residence
was possessed in connection with the offense--
was proper.
C
The last ruling that Berthiaume challenges is
the district court’s decision to deny him a
three-level reduction for acceptance of
responsibility. He asserts that his denial of the
drug quantity found by the district court was not
evidence of frivolously contesting relevant
conduct but simply an indication of his desire
for his sentence to reflect the actual quantity
for which he was responsible.
The sentencing guidelines allow a federal court
to reduce a defendant’s drug offense level "[i]f
the defendant clearly demonstrates acceptance of
responsibility for his offense. . . ." U.S.S.G.
sec. 3E1.1. However, application note 1(a) to that
section provides that the court may refuse to
grant the reduction if it finds that the
"defendant . . . falsely denies, or frivolously
contests, relevant conduct that the court
determines to be true. . . ."
This circuit has held that it is permissible to
withhold an acceptance of responsibility
deduction from a defendant who denies relevant
conduct in the face of credible statements from
witnesses tying him to the offense. Zehm, 217
F.3d at 515. As discussed above, the district
court’s decision to find the testimony of Cooke
and the statement of Neumann credible was
supported by the record. Consequently, faced with
credible evidence that Berthiaume sold 3,735
grams and Berthiaume’s insistence that he only
sold 1,360.8 grams, we cannot say that the
district court’s finding that Berthiaume
frivolously contested relevant conduct was
improper. Accordingly, the district court’s
decision to refuse to reduce Berthiaume’s offense
level for acceptance of responsibility was not
clearly erroneous.
III
For the foregoing reasons, we AFFIRM the district
court’s sentencing decision.