United States v. Kurt Maxshure

579 F. App'x 136
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 16, 2014
Docket13-4831
StatusUnpublished

This text of 579 F. App'x 136 (United States v. Kurt Maxshure) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kurt Maxshure, 579 F. App'x 136 (3d Cir. 2014).

Opinion

OPINION

HARDIMAN, Circuit Judge.

Kurt Maxshure pleaded guilty to federal drug charges and was sentenced to 235 months’ imprisonment and five years of supervised release. He appeals the District Court’s calculation of the drug quantity that determined his base offense level under the United States Sentencing Guidelines (USSG). We will affirm.

I

Maxshure was arrested as part of a DEA investigation into Pittsburgh-area cocaine distribution that involved extensive wiretap and police surveillance. On July 15, 2011, police observed three men park a semitrailer truck, fill gym bags with the contents of the truck, and place the gym bags in a nearby shed. They then observed Maxshure pull up in a Honda Accord and park next to the truck as the gym bags were retrieved from the shed and placed in the trunk of Maxshure’s car.

After leaving the scene, Maxshure was heard on the wiretap discussing a meeting place where he could sell cocaine to co-defendant Darnell Edge. Maxshure suggested they meet at a home on Lincoln Avenue, but ultimately agreed to meet Edge on a nearby corner. Police observed Maxshure entering the home and reemerging with a gym bag before meeting with Edge. They watched as a bag was transferred from Edge’s truck to Maxshure’s car, and as another bag was transferred from Maxshure’s car to Edge’s truck. Shortly thereafter, Maxshure was arrested. DEA agents retrieved the gym bag from his car, which contained $399,950, and they found another $4,000 in his glove compartment. Around the same time, Edge was arrested. DEA agents retrieved the gym bag in his truck and found that the bag contained 15 kilograms of cocaine. They also searched the Lincoln Avenue home and seized a money counting machine, a cocaine press (which renders the cocaine in brick form), and a gym bag *138 identical to the bag Edge had in his truck. The bag contained four bricks of cocaine of one kilogram each and a fifth brick that amounted to slightly less than a kilogram.

Maxshure was charged, along with numerous other co-defendants, with one count of conspiracy to distribute and possess with intent to distribute at least five kilograms of cocaine. At the time of his arrest, Maxshure stated: “You only caught me with the money.” A105. At his initial appearance on July 18, 2011, however, after the District Court had warned Maxshure of his right to remain silent, Maxshure called over a DEA agent and confessed: “We’re guilty. You got us. I’ll plead tomorrow. What do you want me to do. I’ll plead guilty tomorrow. What do you want me to do.” A144. On September 3, 2013, Maxshure withdrew his original not-guilty plea and pleaded guilty to the charge.

In Maxshure’s Presentence Investigative Report (PSR), the U.S. Probation Office determined that he had conspired to distribute at least 150 kilograms of cocaine. This resulted in a base offense level of 38 pursuant to USSG § 2Dl.l(c)(l), and, after a 2-level reduction for acceptance of responsibility, a total adjusted offense level of 36. Maxshure’s criminal history category was III, yielding an advisory Guidelines range of 235 to 293 months’ imprisonment.

Maxshure contested the quantity of cocaine calculated in the PSR, arguing that the maximum amount that could be attributed to him was the 15 kilograms that were seized from Edge at the time of their arrest. The Government countered that it had sufficient evidence to corroborate the 150-kilogram calculation.

At sentencing, the District Court considered the PSR as well as the testimony of two of Maxshure’s co-defendants — a customer and a supplier — who testified to Maxshure’s involvement in the cocaine distribution conspiracy at an earlier suppression hearing. 1 Edge, the customer, testified that, in addition to the 15 kilograms he received from Maxshure on the day of his arrest, he had received an average of ten kilograms per month from Maxshure over the span of seven or eight months, and six kilograms in two deals with Max-shure prior to that period. Edge also testified that Maxshure had told him he could'obtain 50 to 75 more kilograms of cocaine in the future.

Marco Valenzuela Bonilla, Maxshure’s supplier and co-defendant, testified that on the day of his arrest — the same day that Maxshure and Edge were arrested — he had delivered 25 kilograms of cocaine to Maxshure. He stated that he had brought Maxshure at least 25 kilograms of cocaine once or twice a month between September 2009 until they were arrested in July 2011, and that in December 2010, “an unusual month,” he delivered between 80 and 90 kilograms. A173-74. Moreover, Bonilla testified that he had met Maxshure through Reynaldo Lopez Salinas, who told Bonilla he had been providing Maxshure with cocaine for at least a year before that. Bonilla’s testimony alone implicated at least 600 kilograms of cocaine.

The District Court accepted the PSR’s determination that Maxshure was involved in the sale of at least 150 kilograms of cocaine, and sentenced Maxshure to 235 months’ imprisonment — the bottom of the Guidelines range — followed by five years of supervised release. This timely appeal followed.

*139 II 2

On appeal, Maxshure contests the District Court’s calculation of the drug quantity that determined his base offense level and its reliance on the testimony of his two codefendants.

We review the sentencing court’s factual determination of the drug quantity for clear error. United States v. Sau Hung Yeung, 241 F.3d 321, 322 (3d Cir.2001). That determination must be supported by a preponderance of the evidence. See United States v. Grier, 475 F.3d 556, 561 (3d Cir.2007) (en banc) (“Under an advisory Guidelines scheme, district courts should continue to make factual findings by a preponderance of the evidence and courts of appeals should continue to review those findings for clear error.”) (discussing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).

The Federal Rules of Evidence do not apply in sentencing hearings. Fed.R.Evid. 1101(d)(3). Therefore, a sentencing court may rely on hearsay evidence if that evidence has “sufficient indicia of reliability to support its probable accuracy.” USSG § 6A1.3. In doing so, “[w]e recognize that in calculating the amounts involved in drug transactions, some degree of estimation must be permitted.” United States v. Collado, 975 F.2d 985, 998 (3d Cir.1992).

Under Section 1B1.3 of the Sentencing Guidelines, a sentencing court must consider “relevant conduct” when determining the drug quantity that in turn determines a defendant’s base offense level.

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579 F. App'x 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kurt-maxshure-ca3-2014.