United States v. Hearn

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40725
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY JEROME HEARN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:97-CR-3-7
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February 15, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Anthony Jerome Hearn appeals his sentence following his
conviction for possession with intent to distribute cocaine base
and distribution of cocaine base within 1000 feet of a playground
in violation of 21 U.S.C. §§ 841(a), 860. Hearn argues that the
district court’s drug-quantity determination was unsupported by
reliable testimony in violation of U.S.S.G. § 6A1.3, p.s. He
contends that the district court failed to make necessary
findings in violation of Fed. R. Crim. P. 32(c)(1). He also
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-40725
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contends that his due process rights under the Fifth Amendment
were violated by the court’s reliance on the purportedly
unreliable testimony of government witnesses in determining the
drug quantity attributable to him for sentencing purposes.
The district court’s calculation of the quantity of drugs
involved in an offense is a factual determination. United States
v. Alford, 142 F.3d 825, 831 (5th Cir.), cert. denied, 119 S.
Ct. 514 (1998). “‘Factual findings regarding sentencing factors
are entitled to considerable deference and will be reversed only
if they are clearly erroneous.’” Id. (citation omitted). Rule
32(c)(1), Fed. R. Crim. P., requires the district court to make
findings at the sentencing hearing when a matter is controverted,
unless it determines that the matter will not affect sentencing.
See § 6A1.3(b), p.s. In making factual determinations at
sentencing, the district court may consider any relevant evidence
“‘without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.’”
United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996)(quoting
§ 6A1.3), p.s. All facts used for sentencing purposes must be
“reasonably reliable.” United States v. Shacklett, 921 F.2d 580,
584-85 (5th Cir. 1991).
Even if the district court’s findings as to the drug
quantity attributable to Hearn as a result of purchases made by
Larry Giles and Dexter Williams were clearly erroneous in the
light of the apparent conflict between the trial testimony and
the information set forth in the Presentence Report (PSR), any
No. 98-40725
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error was harmless. The district court’s finding, based on the
PSR and Alfred Green’s testimony at the sentencing hearing, that
Hearn be held accountable for 226.8 grams of cocaine base, is not
clearly erroneous. See United States v. Kay, 83 F.3d 98, 101
(5th Cir. 1996); see § 2D1.1(c)(3) (a drug quantity of at least
150 grams but less than 500 grams of cocaine base warrants a base
offense level of 34). Hearn has not demonstrated that the
information set forth in the PSR as to the 226.8-gram amount of
cocaine base is unreliable. He also has not demonstrated that
Green’s testimony at the sentencing hearing was unreliable.
Hearn has not shown that the district court’s factual findings as
to this drug quantity are inadequate under Rule Fed. R. Crim. P.
32(c)(1). See § 6A1.3(b), p.s.
AFFIRMED.