United States v. West-Bey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4181
TROY WEST-BEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-97-175)
Submitted: October 21, 1999
Decided: October 29, 1999
Before WIDENER and TRAXLER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Howard Margulies, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Robert R. Harding, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Troy West-Bey pled guilty to conspiracy to distribute cocaine, see
21 U.S.C. § 846 (1994), and was sentenced to a term of 140 months
imprisonment. He appeals his sentence, contending that the district
court erred in determining the amount of cocaine attributable to him
on the basis of testimony produced at the trial of his brother and co-
defendant, Preston West, thereby denying him an evidentiary hearing
and the opportunity to cross-examine the government's witnesses. We
affirm.
West-Bey's presentence report made no recommendation concern-
ing the amount of drugs attributable to him, instead leaving the issue
to be decided by the district court. Before sentencing, the government
announced its intention to rely on the testimony of its witnesses at the
Preston West trial. Transcripts were made available to the defense.
West-Bey argued in his sentencing memorandum that fairness
required that he have the opportunity to cross-examine the govern-
ment's witnesses. However, the district court (the same judge who
had conducted the Preston West trial) concluded that it was not neces-
sary to have the witnesses testify again.
West-Bey concedes that the district court may consider hearsay
evidence at sentencing, provided that the evidence has sufficient indi-
cia of reliability to support its probable accuracy. See U.S. Sentencing
Guidelines Manual § 6A1.3(a), p.s. (1998). The sentencing court's
reliance on such evidence does not violate the defendant's Sixth
Amendment right to confront witnesses. See United States v. Weekly,
118 F.3d 576, 582 (8th Cir.), dissent modified , 128 F.3d 1198, cert.
denied, ___ U.S. ___, 66 U.S.L.W. 3399 (U.S. Dec. 8, 1997) (No. 97-
6575). See also United States v. Morales, 994 F.2d 386, 389 (7th Cir.
1993); United States v. Notrangelo, 909 F.2d 363, 364-65 (9th Cir.
1990).
While the government bears the burden of proving the amount of
drugs for which the defendant is responsible, it may offer its proof in
a variety of ways. Here, the sentencing judge had also conducted the
trial of the co-defendant and was able to assess the credibility of the
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witnesses and the reliability of the evidence they provided. West-Bey
had access to the transcripts in advance of sentencing and had the
opportunity to rebut the testimony contained in them. Consequently,
we find that the district court did not err either in deciding not to
require the government to prove the amount of drugs through live wit-
nesses or relying on evidence from the Preston West trial to determine
the amount of cocaine attributable to West-Bey.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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