United States v. Scott Lee Young, United States of America v. Donald Charles Allman, United States of America v. Michael Allen Crow , 981 F.2d 180 ( 1993 )

JUSTICE, District Judge,

dissenting.

I dissent from the result reached by the majority. Moreover, I differ with the majority’s analysis of whether resentencing is required where the government failed to establish good cause for the non-disclosure of the identity of confidential informants.

1. Good Cause Showing for Nondisclosure of Identity of Confidential Informants

The United States Sentencing Guidelines (U.S.S.G.) require a good-cause showing before the district court considers out-of-court declarations by confidential informants:

In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” (citations omitted) Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” United States v. Fatico, 579 F.2d 707, 713 (2d Cir.1978). Unreliable allegations shall not be considered. United States v. Weston, 448 F.2d 626, 634 (9th Cir.1971).

U.S.S.G. § 6A1.3 (Commentary) (emphasis added). See also United States v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir.1989).

U.S.S.G. § 6A1.3 incorporated pre-guide-lines case law requiring (1) good cause for not disclosing the identity of an informant, and (2) corroboration by other means of information furnished by an undisclosed informant, before this informant’s out-of-court declarations can be used in sentencing. See United States v. Fatico, 579 F.2d 707, 708-709 (2d Cir.1978), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980).

In Fatico, a pre-sentencing guidelines case incorporated in the comments to § 6A1.3, the Second Circuit stated: “We hold ... that Due Process [and the Confrontation Clause] [do] not prevent use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” Fatico, 579 F.2d at 713 (emphasis added). In Fatico, “the district court ... recognized that the Government cannot and will not reveal informer’s identities because of past murders of informants who implicated organized crime members.” Id. at 710. The hearsay also had independent corroboration by testimony of two co-conspirators. Id. See also United States v. Weston, 448 F.2d 626, 634 (9th Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972) (cited in U.S.S.G. § 6A1.3 commentary) (where sentencing court relied on statements of narcotics agents’ which were supported, in part, by a confidential informant’s report, court remanded for resentencing, since due process infringed unless statements of confidential informants “amplified by information such as to be persuasive of the validity of the charge there made”); Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (1976) (in the context of capital case, vacating and remanding where death sentence was based on secret information in presentence investigation report, which defendant could neither deny nor explain).

2. Misapplication of Federal Sentencing Guidelines

Pursuant to 18 U.S.C. § 3742(f)(1), if the Court of Appeals determines that the sentence:

(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate....

(1989 Supp.) (emphasis added).

Under U.S.S.G. § 6A1.3 (Commentary), out-of-court declarations by an unidentified informant may be considered only “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” Fatico, 579 F.2d at 713.

It is questionable whether appellants adequately preserved for appeal their contention that it was error for the district court to rely on information from confidential informants without a “good cause” showing for nondisclosure of their identities. However, even assuming that appellants did not preserve their contention for appeal, misapplication of U.S.S.G. § 6A1.3 (Commentary) constitutes plain error in this case. Williams v. United States, — U.S. —, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1991).¹

Although the party challenging the sentence must show that the district court relied on an invalid factor at sentencing — in this case, out-of-court declarations by confidential informants for whom the government failed to make a good cause showing for non-disclosure of identity — the reviewing court must determine if the invalid factor was “determinative in the sentencing decision.” Williams, at —, 112 S.Ct. at 1120.² “Once the Court of Appeals has decided that the district court misapplied the Guidelines, remand [under § 3742(f)(1)] is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.” Id.; United States v. Johnson, 961 F.2d 1188, 1189, n. 1 (5th Cir.1992) (adopting Williams and overruling prior Fifth Circuit law which indicated that improper application of the sentencing guidelines would always require remand).

In this case, misapplication of the sentencing guidelines affected the district court’s selection of sentence imposed, and thus remand is appropriate for plain error.

3. Confidential Informant Information Used at Sentencing Hearing Without Good Cause Showing for Nondisclosure of Identity

In this case, the Pre-Sentence Reports of the United States Probation Office recommended that appellants, Crow and Allman, be held accountable for 3.41 and 3.46 kilograms of methamphetamine, respectively, and Young for 7.8 kilograms of methamphetamine. These amounts were based on confidential informant information, indicating that Young transported at least six ounces of methamphetamine two times per week (total 12 ounces per week) for four months before he was arrested in January 1991. Information provided by confidential informants was also to the effect that Crow and Allman each received from Young no less than six ounces of methamphetamine per week, which they packaged and distributed in Waco.

Through the testimony of two narcotics agents at the September 1991, sentencing hearing, the government presented this confidential informant information without making a good cause showing for nondisclosure of identity. In the absence of a good cause showing, the sentencing court determined the confidential informant information was reliable and accepted the above-stated amounts set forth in the Pre-Sentence Reports of the United States Probation Office. The judge, however, decided to halve the amounts for each defendant, worrying about potential exaggeration. The resulting guideline ranges were as follows: for Young, 135-168 months; for Crow, 151-188 months; and for Allman, 108-135 months. The sentences included imprisonment of 160 months for Young, 170 for Crow, and 120 for Allman.

4. Conclusion

In my opinion, plain error occurred in not requiring a good cause showing for nondisclosure of the identity of confidential informants. Under the Williams standard, remand is required here since, from the record as a whole, it cannot be conclusively determined that the district court would have imposed the same sentence, if the government had been required to, and failed to, make a “good cause” showing for nondisclosure of identity of confidential informants. See Williams, at —, 112 S.Ct. at 1120 (“in determining whether a remand is required under § 3742(f)(1), a court of appeals must decide whether the district court would have imposed the same sentence had it not relied upon the invalid factor or factors.”)

For the reasons stated above, I respectfully dissent.

1 . I assume, but do not decide, that the contemporaneous objection rule applies in a case involving misapplication of the federal sentencing guidelines. The mandatory nature of the Supreme Court’s language in Williams would indicate otherwise. In discussing the proper analysis for remand under either § 3742(f)(1) or § 3742(f)(2), the Court stated, "In order to give full effect to both provisions, therefore, the reviewing court is obliged to conduct two separate inquiries [only the first being relevant to this case]. First, was the sentence imposed either in violation of law or as a result of incorrect application of the Guidelines? If so, a remand is required under § 3742(f)(1).” Williams, — U.S. at —, 112 S.Ct. at 1120 (emphasis added).

2 . The fact that the commentary to U.S.S.G. § 6A1.3 is at issue in this case does not affect the appropriate analysis as to whether a remand for resentencing is appropriate. Williams, — U.S. at —, 112 S.Ct. at 1120 ("general policy statements regarding application of the guidelines,” in addition to the guideline itself, will be cause for remand, if the sentence is the result of misapplication of the guideline.)