96 Cal. Daily Op. Serv. 1256, 96 Daily Journal D.A.R. 2133 United States of America v. Julius Asagba, United States of America v. Kenneth Taylor

77 F.3d 324, 96 Daily Journal DAR 2133, 96 Cal. Daily Op. Serv. 1256, 1996 U.S. App. LEXIS 3148, 1996 WL 80443
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 27, 1996
Docket95-10139, 95-10197
StatusPublished
Cited by56 cases

This text of 77 F.3d 324 (96 Cal. Daily Op. Serv. 1256, 96 Daily Journal D.A.R. 2133 United States of America v. Julius Asagba, United States of America v. Kenneth Taylor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
96 Cal. Daily Op. Serv. 1256, 96 Daily Journal D.A.R. 2133 United States of America v. Julius Asagba, United States of America v. Kenneth Taylor, 77 F.3d 324, 96 Daily Journal DAR 2133, 96 Cal. Daily Op. Serv. 1256, 1996 U.S. App. LEXIS 3148, 1996 WL 80443 (9th Cir. 1996).

Opinions

Opinion by Judge GOODWIN; Dissent by Judge PREGERSON.

OPINION

GOODWIN, Circuit Judge.

The only substantial question in this consolidated appeal by the government from what it contends were legally inadequate sentences is the degree of deference due the district court in its fact-finding function in the imposition of a guideline sentence.

FACTS

Taylor and Asagba were convicted following separate jury trials of one count of violating 21 U.S.C. § 846 — conspiracy to distribute heroin and cocaine. The two defendants were caught in an investigation that netted some 18 codefendants charged in a series of multiple-count indictments after Taylor and Asagba were arrested in a Washington, D.C. hotel room. Taylor had 7.8 grams of heroin still in his alimentary canal, and his room contained 46 empty condoms that had been wrapped with electrical tape, swallowed, passed through some person’s digestive system, emptied of their load of heroin, and had not yet been disposed of when the officers arrived to make the arrest. The two defendants were convicted of conspiracy to distribute heroin and were sentenced to a term of custody fixed under the guidelines by the 7.8 grams proven to have been carried by Taylor.

Asagba, Taylor told the officers, was sent with Taylor by one Chris Uwueche, to guard against any misdelivery by Taylor of the contents of his alimentary canal, which it had taken him two days to swallow, or any possible peculation with the proceeds of any delivery that might be made. Apparently, the officers arrived in time to retrieve only one full capsule from Taylor’s body, together with the empties that contained residues of heroin and of digestive egesta. No other defendants or charges are involved in this appeal. Taylor refused to testify in Asagba’s trial or in his sentence hearing.

QUESTION OF FACT

The only fact question at the time of sentencing was the number of grams transported by Taylor, escorted by Asagba. The government argued that Uwueche would not have purchased two airplane tickets for Taylor and Asagba to fly from Amsterdam to Frankfurt to Newark to Washington, D.C. merely to deliver 7.8 grams of heroin and 46 empty condoms containing only heroin residue.

The defendants argued that because mandatory minimum sentences in narcotics eases are often based upon volume of contraband proved in a conspiracy to distribute, the trial court correctly based the sentences of Taylor and Asagba on the 7.8 grams proved by physical evidence to have been carried by Taylor.

STANDARD OF REVIEW

This appears to be one of those cases that actually turns on the standard of review by which this court is instructed to decide whether a sentencing court correctly applied the statutory rules and sentencing guidelines.

We review factual findings made at the sentencing phase for clear error. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994). The determination of the quantity of narcotics involved in an offense is a factual finding. United States v. Vaandering, 50 F.3d 696, 704 (9th Cir.1995). District courts must make factual findings supported by a preponderance of the evidence in order to apply the sentencing guidelines. United States v. Wilson, 900 F.2d 1350 (9th Cir.1990).

[326]*326Review under the clearly erroneous standard is significantly deferential, requiring for reversal a definite and firm conviction that a mistake has been made. Concrete Pipe & Prod. v. Const. Laborers Pension Trust, 508 U.S. 602, 623-25, 113 S.Ct. 2264, 2280, 124 L.Ed.2d 539 (1993). The standard does not entitle a reviewing court to reverse the finding of the trial court simply because the reviewing court might have decided differently. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

Taylor’s own out of court statement, which was admissible against Taylor, was substantial evidence that Taylor carried more than the 7.8 grams of heroin used in his sentencing. Federal Rule of Evidence 801(d)(2)(A). Taylor’s statement, while hearsay as to Asagba on the amount of contraband Asagba escorted, could be received for sentencing purposes because it was reliable evidence, given against Taylor’s interest, and clearly corroborated by physical evidence and the circumstances under which the evidence was found. Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082-83, 93 L.Ed. 1337 (1949) (probation report admissible on sentencing). In U.S. v. Petty, 982 F.2d 1365, 1367-68 (9th Cir.1993), we held that reliable hearsay could be used in sentencing, and pointed out that U.S.S.G. § 6A1.3(a) specifically so provides. Because both Asagba and Taylor had already been found by two different juries to be members of the same conspiracy, and because they were arrested together with the empty packages and were then engaged in the course of the conspiracy, Taylor’s voluntary statement to the officers was corroborated and reliable, even though not “in furtherance of the conspiracy.” See, e.g., United States v. Manning, 56 F.3d 1188, 1197-98 (9th Cir.1995) (applying Fed.R.Evidence 801(d)(2)(E), making an exception to the hearsay rule even in the guilt or innocence trial phase where the statement by the coconspirator is made in the course of the conspiracy and also in furtherance thereof).

On appeal, the government maintains that the trial judge erred in choosing to ignore the high probability that some volume, estimated by the prosecution to be in excess of 360 grams, had indeed been carried into the hotel l'oom by Taylor and disposed of before the intervention of the officers. It is not necessary to agree with the government’s estimate of the exact number of grams to say with confidence that a finding of only 7.8 grams is clearly contrary to the preponderance of the evidence.

The district court observed that the preponderance of the evidence standard is not met simply by allowing the government to multiply 46 empty containers by the number of grams proven to have been contained by the only full container falling into the government’s possession. If the one full container and the 46 empties were the only evidence before the court, that observation would be sufficient to survive deferential review. But there was much more evidence before the court than the unsatisfactory condition of the empty containers. Taylor’s statement to the officers was competent evidence to satisfy the preponderance requirement for sentencing, and it filled in most, if not all, of the blanks in the physical evidence when examined by itself.

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77 F.3d 324, 96 Daily Journal DAR 2133, 96 Cal. Daily Op. Serv. 1256, 1996 U.S. App. LEXIS 3148, 1996 WL 80443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/96-cal-daily-op-serv-1256-96-daily-journal-dar-2133-united-states-of-ca9-1996.