United States v. Lee

United States Court of Appeals
For the First Circuit
No. 17-1490
UNITED STATES OF AMERICA,
Appellee,
v.
MARIO LEE, a/k/a Mo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Bruce M. Merrill on brief for defendant-appellant.
Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.
June 18, 2018
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
THOMPSON, Circuit Judge. This appeal comes from a
district court’s imposition of a 218-month sentence on Mario Lee
for conspiracy to distribute and possession with intent to
distribute 100 grams or more of a mixture or substance containing
heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Lee only
attacks his sentence as procedurally unreasonable. Concluding, as
we do, that the district court did not commit any error, we affirm.
A. Background1
On February 7, 2014, Mario Lee was released from prison
in New York, having been convicted for selling crack cocaine to an
undercover police officer. Within months of his release, federal
and state law enforcement in Maine discovered that Lee was
participating in an ongoing conspiracy to distribute heroin there.
Lee would obtain heroin from outside Maine and would transport it
back to Maine to be distributed by himself and others. On
September 3, 2015, Lee was arrested. He was charged with four
counts of distribution of heroin, and one count of conspiracy to
distribute heroin. Facing a possible life sentence, Lee pled
guilty to one count of conspiracy to distribute and possession
with intent to distribute 100 grams or more of a mixture or
1We draw these facts, where relevant, from the record before
us on appeal, in particular the pre-sentence report (PSR), the
criminal complaint to which Lee pled guilty, the plea hearing
transcript, the sentencing transcript, and the parties’ sentencing
memoranda and exhibits before the district court. See United
States v. Santiago-Serrano, 598 F. App'x 17, 18 (1st Cir. 2015).
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substance containing heroin, in violation of 21 U.S.C. §§ 841(a)(1)
and 846. The plea agreement struck by the government and Lee, due
to Lee’s undisputed career offender status under U.S.S.G. § 4B1.1,
had the effect of setting his guideline range at 120 to 240 months.
At Lee’s sentencing, and in its sentencing memorandum,
the government presented and summarized evidence from its
investigation to support a 1.3 kilogram drug quantity
determination, as recommended by the PSR. This evidence included
the grand jury testimony or interviews of nine witnesses who
connected Lee to large quantities of heroin.2 Lee objected to the
drug quantity estimates in the PSR based on the government’s
witness statements.3 Unlike other cases where drug quantity comes
up as an issue, in this case the district court noted, and counsel
for the government and Lee agreed, that Lee’s PSR objections would
not affect the guidelines calculations because Lee’s undisputed
status as a career offender under U.S.S.G. § 4B1.1 superseded those
considerations. However, the district court said that drug
2These witnesses are identified in the record as: Source of
Information (SI)-1, -2, -3, -4, -5, -5H (husband of SI-5), -6,
-7, and -8.
3 We note that below Lee also disputed the PSR’s
recommendation of an enhancement for his role in the conspiracy.
The PSR recommended that he receive a four-level enhancement as an
organizer or leader of criminal activity involving five or more
participants or that was otherwise extensive under U.S.S.G. §
3B1.1(a). As he does not challenge the district court's imposition
of this enhancement on appeal, we say no more.
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quantity could be relevant to the actual sentence imposed under
the 18 U.S.C. § 3553(a) factors.
To hear Lee tell it, the witnesses’ statements, which
were not subject to cross-examination in the grand jury or the
prosecutor’s office, had inconsistencies. These inconsistencies
all amounted to arguing either that the witnesses exaggerated the
period of time they were acquainted with Lee when he was selling
heroin in Maine or the amount of heroin the witnesses knew Lee had
possessed. Lee concluded that that made them too unreliable to be
considered. While noting these discrepancies, the district court
found that the witnesses’ statements were credible, corroborating
locations, associates, and drugs connected to Lee, and adopted the
PSR’s recommended 1.3 kilograms as the drug quantity. The district
court considered the drug quantity in imposing Lee’s 218-month
sentence rather than a more lenient one.
B. Discussion
On appeal, Lee complains only about the drug quantity
the district court attributed to him. According to Lee, SI-1, SI-
2, SI-3, SI-4, and SI-5, whose testimony supported the PSR’s drug
quantity recommendation, were inherently unreliable. Even worse,
Lee says that considering these unreliable statements would risk
“double counting,” incorrectly ballooning the drug amounts
attributable to him by considering the testimony of multiple
witnesses that could relate to the same drugs. To Lee, considering
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this evidence despite the shortcomings he identified was
procedural sentencing error. As a part of his argument that the
witness statements are unreliable, Lee believes that the witness
statements are especially so because they are out-of-court
statements from either grand jury testimony or proffer interviews
with the government. Thus, Lee concludes, if the district court
had required the government to produce these witnesses for live
testimony at sentencing, as he requested below, the district court
could not have possibly believed them.
We must ensure that the sentence imposed by the district
court was “procedurally sound.” United States v. Dávila-González,
595 F.3d 42, 47 (1st Cir. 2010) (citing United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008)). A district court commits a
procedural error in sentencing if it "fail[s] to calculate (or
improperly calculate[s]) the Guidelines range, treat[s] the
Guidelines as mandatory, fail[s] to consider the § 3553(a) factors,
select[s] a sentence based on clearly erroneous facts, or fail[s]
to adequately explain the chosen sentence." Gall v. United States,
552 U.S. 38, 51 (2007). When making a drug quantity finding, the
sentencing court’s responsibility is to “make reasonable estimates
of drug quantities, provided they are supported by a preponderance
of the evidence.” United States v. Mills, 710 F.3d 5, 15 (1st
Cir. 2013). We review those estimates “deferentially, reversing
only for clear error.” Id. We will only find clear error when
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our review of the whole record “form[s] a strong, unyielding belief
that a mistake has been made.” Cumpiano v. Banco Santander P.R.,
902 F.2d 148, 152 (1st Cir. 1990).
Evidence supporting the drug quantity determination may
be considered regardless of its admissibility at trial, so long as
it has “sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a). The sentencing court has a lot
of discretion in deciding what evidence is reliable enough to be
considered for sentencing purposes. See Mills, 710 F.3d at 15-
16; United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir.
2010); United States v. Green, 426 F.3d 64, 66 (1st Cir. 2005).
Having laid out our deferential review of drug quantity
findings, and the sentencing court’s broad discretion in reviewing
the evidence before it at the sentencing hearing, we start with
Lee’s argument that the witness statements, as out-of-court
statements, are inherently less reliable for sentencing purposes,
and that the government should have been compelled to produce the
witnesses for cross examination. Lee’s argument is way off base.
A defendant’s rights under the Confrontation Clause do not attach
during sentencing. United States v. Díaz-Arias, 717 F.3d 1, 26-
27 (1st Cir. 2013). And for a while now, we have held that a
sentencing court may consider hearsay statements of confidential
informants if they otherwise show sufficient indicia of
reliability. See Green, 426 F.3d at 67; United States v. Tardiff,
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969 F.2d 1283, 1287 (1st Cir. 1992), superseded by amendment to
U.S.S.G. on other grounds, U.S.S.G. § 3B1.3, as recognized in
United States v. Reccko, 151 F.3d 29, 33 (1st Cir. 1998). We see
no error here.4
The witnesses’ statements concerning Lee’s heroin
distribution were detailed, internally consistent, and mutually
corroborative in important ways. In particular, the statements
were mutually corroborative about the specific locations where he
stashed and sold heroin, including multiple descriptions of a
trailer on Essex Street in Bangor, Maine, restaurants in Bangor
such as the “Sea Dog” and “Carolina’s,” a residence at Maxim Court
in Bangor, and a residence in Old Town, Maine. Multiple witnesses
also corroborated the names of Lee’s associates and “runners” (drug
deliverers). We have already held that a sentencing court can
rely on evidence with indicia like this. See Green, 426 F.3d at
4 Lee’s reliance on United States v. Carl, 593 F.3d 115 (1st
Cir. 2010), does not help him escape the clear precedent permitting
the use of hearsay statements, including confidential ones. While
in Carl, the statements of drug addicts who bought crack cocaine
from the defendant were subject to cross-examination at trial
before being used for drug quantity purposes at sentencing, nothing
in that opinion would suggest that cross-examination at trial is
dispositive or even considered in our deferential review of the
sentencing court. See id. at 122-23. As long as the information
the government uses is reliable, there is no presumption or
preference for live testimony subject to cross-examination rather
than any other. See Mills, 710 F.3d at 15-16 (“[T]he court can
consider all kinds of relevant information regardless of
admissibility at trial . . . provided it has ‘sufficient indicia
of reliability to support its probable accuracy.’” (quoting
U.S.S.G. § 6A1.3(a)).
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67 (affirming sentencing court’s reliance on statements
corroborating names of associates and locations used by
defendant). Some witnesses also personally witnessed Lee
possessing and distributing heroin himself. We have affirmed
reliance on evidence showing far less. See United States v.
Zapata, 589 F.3d 475, 485-86 (1st Cir. 2009) (affirming drug
quantity on basis of intercepted phone calls discussing drug
quantity in code when defendant was never found in possession of
drugs). The alleged inconsistencies Lee identifies – all relating
to the witnesses’ knowledge of the amount of time Lee was in Maine
or how many drugs he was connected to – are not enough to torpedo
the district court's findings. In fact, some of the
inconsistencies are just mistakes that the witness corrected
later.5 It is not clear error that the sentencing court weighed
other indicia of reliability and found them to be more significant.
See Mills, 710 F.3d at 16 & n.4.
Any possibility of a reversible error due to witness
reliability or double counting is negated even more by the
5The insignificance of the flaws Lee picks out of the
testimony is made even clearer by this example. SI-1 testified
that she met Lee in 2012 or 2013, which, as Lee seizes upon, would
have been impossible as he was incarcerated in New York at that
time. As the government points out, SI-1 corrected this belief
later in her testimony, amending that she had dealt with Lee for
eighteen months to two years. Inconsistencies like these do not
compete in weight or relevance with the factors the district court
found reliable in the witness testimony, and that we find reliable
here.
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narrowness of the drug quantity calculation. In an act of lenity
to Lee’s benefit, the PSR’s 1.3 kilogram drug quantity accounted
for the possibility of any exaggerations or double counting by the
witnesses in its estimate. The PSR: (i) only considered a six-
month window of SI-1’s transactions with Lee, accounting for when
Lee was released from prison in New York and when it was alleged
he was not in Maine for eight months; (ii) did not consider the
suitcases of heroin Lee’s cousin delivered to him as corroborated
by SI-4 in order to avoid double counting; (iii) only considered
a six-month window of transactions corroborated by SI-5, even
reducing the drug quantity per transaction, to ensure lenity;
(iv) for no stated reason but to Lee’s benefit, did not consider
any drug quantities corroborated by SI-6, SI-7, or SI-8; and
(v) discounted the “bundles” of heroin Lee sold to represent .25
grams each in the calculation, rather than 1 gram as multiple
witnesses testified. In sum, the sentencing court adopted the
PSR’s “modest and defensible assumptions” to avoid precisely the
errors Lee claims were made. Cintrón-Echautegui, 604 F.3d at 7.
The district court’s reliance on the witness statements and its
adoption of a narrowly tailored drug quantity determination
supported by that evidence were reasonable. We see no clear error.
C. Conclusion
For the reasons explained above, the sentence is
affirmed.
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