United States v. Marshall, Delbert E.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 9, 2006
Decided December 14, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-2048
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 3:05-CR-30079-JES-BGC
DELBERT E. MARSHALL, Jeanne E. Scott,
Defendant-Appellant. Judge.
ORDER
Delbert Marshall pleaded guilty to multiple drug and firearms offenses in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 860, and 18 U.S.C. §§ 922(g)
and 924(c). Marshall argues that the district court erred by crediting unreliable
hearsay statements in calculating the amount of crack cocaine attributable to him
for sentencing purposes and by refusing to grant a three-point reduction for
acceptance of responsibility. We affirm the district court’s judgment.
Marshall was arrested after selling cocaine and crack cocaine to Terry
Newman in four controlled buys during August 2005. Newman was Marshall’s
uncle and a confidential informant for the Bureau of Alcohol, Tobacco and Firearms.
Marshall pleaded guilty to all six counts of the indictment: (1) distribution of
cocaine; (2) distribution of crack cocaine; (3) distribution of crack cocaine within
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1,000 feet of a school; (4) possession of cocaine and crack cocaine with intent to
distribute within 1,000 feet of a school; (5) felon in possession of a firearm; and (6)
possession of a firearm in furtherance of a drug trafficking crime. 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), 860; 18 U.S.C. §§ 922(g), 924(c). For sentencing purposes,
the drugs from the four controlled buys, coupled with the drug amounts from
Marshall’s prior relevant conduct, totaled 2.01 kilograms of crack cocaine and 6.6
kilograms of cocaine. Based on Marshall’s total offense level of 41 and his criminal
history category of VI, the sentencing guidelines range for the four drug offenses
was 360 months to life imprisonment. For the two firearms offenses, the guidelines
yielded a statutory maximum of 120 months for being a felon in possession, 18
U.S.C. § 924(a)(2), and a statutory minimum of a consecutive 60-month sentence for
possession in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).
The district court sentenced Marshall to concurrent prison terms of 240 months on
counts 1 and 2; 360 months each on counts 3 and 4; and 120 months on count 5,
plus a consecutive sentence of 60 months on count 6.
Marshall first asserts that the district court erred by relying upon unreliable
hearsay statements in calculating the amount of crack cocaine attributed to him as
relevant conduct for sentencing purposes. Marshall argues that testimony given by
Agent Carpenter of the ATF concerning statements made to him by Terry Newman,
the confidential informant, did not have sufficient indicia of reliability to support its
probable accuracy. See U.S.S.G. § 6A1.3(a). Specifically, Marshall asserts that
Agent Carpenter’s testimony that Newman told him he observed Marshall selling
crack cocaine in 2003 and 2004 is not credible because Newman did not provide
specific details about the sales, such as precise dates or names of other witnesses, if
any. Also, Newman was in jail during part of the time period when he claimed to
witness the sales. Marshall also disputes Newman’s credibility because Newman
has an extensive criminal record and was in jail when he agreed to cooperate with
the ATF in order to get his bond lowered.
A district court’s calculation of the drug amount attributable to a defendant
is a factual finding that will not be disturbed absent clear error. United States v.
Marty, 450 F.3d 687, 689–90 (7th Cir. 2006). Because the Federal Rules of
Evidence do not apply to sentencing proceedings, the district court may consider
evidence that is not otherwise admissible, including hearsay, so long as it possesses
sufficient indicia of reliability. United States v. Johnson, 227 F.3d 807, 813 (7th Cir.
2000). A sentencing court’s credibility determinations are accorded exceptional
deference. Id.Here, the district court justified the drug amount based on information in the
record and explained why it believed the information to be credible. Specifically,
the court attributed two kilograms of crack cocaine to Marshall based on Newman’s
statement to the ATF that he had observed Marshall selling that amount during the
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specified time period, and the fact that there was sufficient time during that period
when Newman was not in jail and could have observed the sales. The court
explained that it found Newman credible because he was Marshall’s uncle and
knew him well, and because much of the other information Newman provided had
been corroborated by the ATF, including Marshall’s residence, his cars, his
girlfriend, his use of a .45 caliber gun, and his willingness to sell cocaine and crack
(including Newman’s four controlled buys from Marshall). Contrary to Marshall’s
assertions, the court was entitled to credit Newman’s statements despite his
criminal history and cooperation with the government. See Johnson, 227 F.3d at
813. Notably, Marshall identifies no facts or evidence that directly contradict any of
Newman’s statements about the drug quantities he observed. Thus, the district
court did not clearly err in relying upon Newman’s statements to the ATF.
Marshall also asserts that the district court erred by refusing to grant a
three-point reduction for acceptance of responsibility. He argues that he was
entitled to the reduction because he showed a clear recognition and acceptance of
his responsibility by pleading guilty, he timely notified the authorities of his intent
to plead guilty, and he admitted the offenses charged in the indictment.
A district court’s findings of fact concerning acceptance of responsibility are
also reviewed for clear error. United States v. Davis, 442 F.3d 1003, 1009 (7th Cir.
2006). Although a defendant may remain silent with respect to relevant conduct, a
defendant “who falsely denies, or frivolously contests, relevant conduct that the
court determines to be true has acted in a manner inconsistent with acceptance of
responsibility.” U.S.S.G. § 3E1.1 applic. n.1(a); see also United States v. Leahy, 464
F.3d 773, 791–92 (7th Cir. 2006). To properly contest findings presented in the
presentence report, a defendant must do more than merely deny the information;
rather he must present evidence. United States v. Lister, 432 F.3d 754, 759–60 (7th
Cir. 2005).
The district court here reasonably concluded that Marshall was not entitled
to a reduction for acceptance of responsibility because he frivolously denied all
relevant conduct contained in the presentence report, choosing instead to admit
only the four drug sales set forth in the indictment. Indeed, as the district court
observed, while it might not have been frivolous for Marshall to contest certain drug
amounts, he had no basis for denying all of the drug sale conduct in its entirety.
His insistence that the four drug sales alleged in the indictment were the only ones
he ever conducted strained credulity in light of the evidence presented at the
sentencing hearing. This evidence included the statements of confidential
informant Larry Newman (introduced through Agent Carpenter) and the testimony
of Michael Wilson and Robert Poole that they had purchased drugs from Marshall.
Marshall mistakenly asserts that he successfully challenged the relevant conduct
derived from Poole’s testimony. But the record reflects that, while the court
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excluded those drug amounts from the relevant conduct calculation because Poole
was uncertain about the precise quantities and time frame, the court believed
Poole’s testimony that he bought cocaine from Marshall. Significantly, Marshall
presented no evidence to rebut the drug sales enumerated by Newman, Poole, and
Wilson. Accordingly, the district court did not clearly err by refusing to grant a
reduction for acceptance of responsibility.
AFFIRMED.