United States v. Cesar Campos ( 1996 )

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No. 95-2113
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Cesar Campos, *
*
Appellant. *
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Submitted: March 11, 1996
Filed: June 27, 1996
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Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
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BEAM, Circuit Judge.
The district court1 sentenced Cesar Campos to 168 months (14 years)
in prison following his guilty plea to one count of conspiracy to possess
with intent to distribute cocaine in violation of 21 U.S.C. § 846. Campos
appeals his sentence. Because we find no error in the district court's
application of the sentencing guidelines, we affirm.
I. BACKGROUND
In October 1993, Campos was arrested in New York City for his role
in the distribution of cocaine in Kansas City, Missouri. A federal grand
jury returned a single-count indictment charging Campos with conspiracy to
possess with intent to distribute cocaine. Campos pleaded guilty to that
charge on March 8, 1994,
1
The Honorable D. Brook Bartlett, United States District Judge
for the Western District of Missouri.
and his case proceeded to sentencing. At the sentencing hearing, three
issues were in dispute: 1) the amount of cocaine for which Campos would
be held responsible; 2) Campos' entitlement to credit for acceptance of
responsibility for the offense; and 3) Campos' eligibility for an upward
adjustment for an aggravating role in the offense.
The government called four witnesses to describe the complex Kansas
City cocaine trafficking operation and to identify Campos as its major
source of supply in New York City. Three of these witnesses, Andrew Miguel
Melo, Thomas Hedges, and Michael Kern, were directly involved in the drug
distribution scheme. The fourth witness, FBI Agent Dennis Conway, had
headed the investigation of the trafficking ring and had interviewed
several of Campos' co-conspirators concerning the drug operation.
According to these witnesses, Campos' cocaine trafficking activities in
Kansas City began in 1987. At that time, Melo moved from New York City to
Kansas City to be near his girlfriend. There, Melo met Hedges, and the two
became partners in the trafficking of small amounts of cocaine. However,
due to the demands of Kern, a regular customer, Melo and Hedges soon
required a supplier who could provide cocaine in kilogram amounts. Campos,
a New York City resident, became this supplier.
Campos, accompanied by two couriers, personally made one cocaine
delivery to Kansas City in 1987. Melo, Hedges and Kern testified that
after that delivery they obtained additional amounts from Campos in various
ways. On some occasions, Melo and Hedges, and sometimes Kern, would travel
to New York where they would obtain cocaine from Campos or from couriers
naming Campos as their source of supply. On others, Campos would send
couriers to Kansas City to deliver cocaine. The government contended that
Campos had a hand in the distribution of approximately forty kilograms of
cocaine in Kansas City prior to his arrest.
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Campos presented a very different version of his involvement in
Kansas City drug trafficking. Taking the stand in his own defense, Campos
acknowledged that he had made one trip to Kansas City to deliver cocaine.
He testified, however, that he supplied Hedges and Melo only four more
times in New York City, and that he had sent only two additional kilograms
to Kansas City through couriers. Campos insisted that he had distributed
no more than eight pounds (approximately 3.5 kilograms) of cocaine during
his association with Hedges and Melo. In support of his testimony, Campos
submitted the results of a polygraph examination he had taken and the
testimony of Bruce Howell, a polygraph examiner. Howell testified that the
results of the polygraph examination indicated Campos' admissions regarding
drug quantity were truthful.
At the conclusion of the sentencing hearing, the district court found
that Campos was responsible for the distribution of between fifteen and
fifty kilograms of cocaine. The court also concluded that Campos was not
entitled to a reduction in offense level for acceptance of responsibility.
Finally, the court determined that the facts did not warrant an offense-
level increase for an aggravating role in the crime. These findings
yielded an offense level of thirty-four, a criminal history category of I,
and a sentencing range of 151-188 months under the sentencing guidelines.
The court sentenced Campos to 168 months in prison.
On appeal, Campos argues that the district court's drug quantity
determination is clearly erroneous. Campos further argues that the
district court violated his right to due process by relying on hearsay
statements in making its sentencing determinations. Finally, Campos argues
that the district court erred in failing to grant him a two-level reduction
for acceptance of responsibility.
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II. DISCUSSION
A. Drug Quantity
Campos first argues that the district court erred in determining the
drug quantity involved in the offense. At sentencing, the government must
prove drug quantity by a preponderance of the evidence.2 See, e.g., United
States v. Pugh, 25 F.3d 669, 676 (8th Cir. 1994); United States v. Wiley,
997 F.2d 378, 385 (8th Cir.), cert. denied, 114 S. Ct. 600 (1993). We will
not reverse the sentencing court's drug quantity determination unless the
defendant proves that determination is clearly erroneous. Wiley, 997 F.2d
at 385. Campos has failed to do so here.
Ample evidence supported the district court's quantity findings.
Three witnesses testified regarding their personal contacts with Campos and
his couriers. All three witnesses identified Campos as the primary source
of the cocaine they received. All three also testified that Campos
provided the operation quantities of cocaine which were well within the
range of the district court's findings. Finally, these witnesses all gave
similar accounts of the various participants in the conspiracy and
2
Campos argues that the district court concluded drug quantity
should be proved by clear and convincing evidence, and urges us to
adopt that same standard. Relying on United States v. Kikumura,
918 F.2d 1084 (3d Cir. 1990), Campos contends that because drug
quantity has an extreme impact on the length of his sentence, due
process requires that the amount of cocaine be proved by clear and
convincing evidence. That argument is without merit. First, a
careful reading of the district court's opinion shows the court
recognized that drug quantity need only be proved by a
preponderance of the evidence (although it found clear and
convincing evidence supporting its quantity determination).
Second, although we have indicated there may be cases where a
sentencing factor has such a disproportionate effect on a sentence
that due process would require a higher burden of proof, see United
States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991), this is not
such a case.
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their corresponding roles in the drug operation. This testimony was
corroborated by information obtained from pen registers the FBI used to
monitor the telephones of Melo's girlfriend and Hedges. As Agent Conway
noted, these pen registers documented several contacts between Melo and
Campos and between Hedges and Campos.
To discredit this evidence, Campos points to inconsistencies in the
testimony of Melo, Hedges, and Kern. Campos also argues that because the
three witnesses were testifying pursuant to cooperation agreements with the
government, their testimony was inherently unreliable. He further contends
that the district court should have given more weight to his own testimony
and to the results of the polygraph examination. These arguments amount
to little more than an attack on the credibility determinations of the
district court--determinations which the district judge is in the best
position to make and which are "``virtually unreviewable on appeal.'"
United States v. Adipietro, 983 F.2d 1468, 1479 (8th Cir. 1993) (quoting
United States v. Candie, 974 F.2d 61, 64 (8th Cir. 1992); see also United
States v. Eberspacher, 936 F.2d 387, 389 (8th Cir. 1991). Here, the
district court carefully considered all of the evidence presented,
including the inconsistencies which had been highlighted by Campos' counsel
on cross-examination, and made specific credibility findings concerning
each of the witnesses. The court then approximated a quantity of drugs
attributable to Campos. After reviewing the record, we cannot find that
the district court's determination of drug quantity was clearly erroneous.
Therefore, we affirm the district court's finding that Campos was
responsible for distributing between fifteen and fifty kilograms of
cocaine.
B. Hearsay Evidence
Campos next argues that the district court erred in relying on
hearsay evidence in making its sentencing determinations. Campos argues
that hearsay statements attributed to accomplices of Campos
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and admitted during the course of testimony from the government's witnesses
were materially untrue and therefore cannot, consistent with due process,
form a valid basis for his sentence.
We agree that a defendant "may not be sentenced on the basis of
``misinformation of constitutional magnitude.'" United States v. Wise, 976
F.2d 393, 402 (8th Cir. 1992) (quoting United States v. Tucker, 404 U.S.
443, 447 (1972)), cert. denied, 507 U.S. 989 (1993). During sentencing,
however, the guidelines permit the use of hearsay without regard to its
admissibility at trial, provided that it has "sufficient indicia of
reliability to support its probable accuracy." U.S.S.G. § 6A1.3(a). We
have held that this standard satisfies the demands of due process. Wise,
976 F.2d at 402.
Whether hearsay is sufficiently reliable for sentencing purposes
"depends upon the particular circumstances of each case." Id. at 403.
Under the circumstances of this case, the district court did not err in
considering hearsay statements regarding the source of cocaine supplied to
the government's cooperating witnesses. Initially, we note that the
hearsay declarants were drug couriers who Campos himself confirmed had
assisted him in distributing cocaine to Melo and Hedges. As such, if the
federal rules of evidence were to apply at sentencing, these couriers would
be deemed coconspirators and their statements would fit under an exception
to the rule against hearsay. See Fed. R. Evid. 801(d)(2)(E). Furthermore,
nothing in the record indicates that these accomplices had any reason to
misrepresent the source of the drugs when making deliveries to Melo,
Hedges, and Kern. Finally, to the extent that Campos challenges the
reliability of the witnesses repeating the hearsay, we note that this
argument is simply a restatement of Campos' earlier unsuccessful objections
to the district court's credibility determinations. We observe, however,
that the testimony of these witnesses was internally consistent with
respect to the major participants in and general
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operating procedures of the enterprise. This internal consistency lends
substantial indicia of reliability to the testimony. We therefore conclude
that the district court did not err in considering any of the evidence
presented by the government.
C. Acceptance of Responsibility
Finally, Campos argues that the district court erred in refusing to
grant him credit for acceptance of responsibility. Under the Sentencing
Guidelines, a defendant is entitled to a two-level decrease in the offense
level "[i]f the defendant clearly demonstrates acceptance of responsibility
for his offense." U.S.S.G. §3E1.1(a). Determining whether a defendant
qualifies for this reduction "is a question of fact which depends largely
on the district court's credibility assessments." United States v. Evans,
51 F.3d 764, 766 (8th Cir. 1995). "On appeal, the district court's
decision to grant or deny the reduction is afforded great deference and
will not be disturbed unless it is clearly erroneous." Id.
Campos argues that he took responsibility for his actions by pleading
guilty and by admitting to the distribution of 3.5 kilograms of cocaine.
It is well settled, however, that a guilty plea "does not entitle the
defendant to a reduction as a matter of right." Id. Furthermore, our
cases demonstrate that acceptance of responsibility credit can properly be
denied where a defendant minimizes his role in drug activities. See United
States v. Abanatha, 999 F.2d 1246, 1251-52 (8th Cir. 1993), cert. denied,
114 S. Ct. 1549 (1994). The district court found that Campos distributed
far more than the 3.5 kilograms of cocaine he admitted to distributing--a
finding which is amply supported by the record. Where, as here, the
district court reasonably determines that the defendant accepted
responsibility for less than all of his criminal conduct, it is not clearly
erroneous to deny a reduction in offense level. See id. We therefore
affirm the district court's decision to deny a two-level reduction for
acceptance of responsibility.
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III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district
court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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