United States v. Rogers

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 9, 1993
• Docket: 92-8478
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

NO. 92-8478 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LYNN KIRSTIN WALLER ROGERS, a/k/a Lynn Waller Rogers,

Defendant-Appellant. __________________________________________________________________

Appeal from the United State district Court for the Western District of Texas _________________________________________________________________ (August 30, 1993)

Before KING and JOLLY, Circuit Judges, and PARKER1, District Judge.

Per curiam:

Defendant-appellant Lynn Kirstin Waller Rogers (Rogers) pleaded

guilty to possession with intent to distribute amphetamine/

methamphetamine in violation 21 U.S.C. § 841 (a)(1). On appeal she

challenges her sentence only, alleging that the district court

erred in finding that over 500 grams of amphetamine/methamphetamine

were attributable to her. Based on our determination that the

district court's finding was not clearly erroneous, we affirm

Rogers' sentence.

1 Chief Judge of the Eastern District of Texas, sitting by designation. STANDARD OF REVIEW

"A district court's findings about the quantity of drugs

implicated by the crime are factual findings reviewed under the

'clearly erroneous' standard." United States v. Rivera, 898 F.2d

442, 445 (5th Cir. 1990). Under the 'clearly erroneous' standard,

"[i]f the district court's account of the evidence is plausible in

light of the record viewed in its entirety the court of appeals may

not reverse it even though convinced that had it been sitting as

the trier of fact, it would have weighed the evidence differently."

Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct.

1504, 1511, 84 L.Ed.2d 518 (1985).

FACTS

Thirteen people were indicted for alleged offenses related to

the possession and distribution of amphetamine/methamphetamine as

a result of an investigation by the Waco Police Department and the

Drug Enforcement Administration from January 1988 through June

1991. Michael Royals was the head of the distribution scheme. He

dealt with only four of the other indicted individuals directly,

who in turn sold drugs to an ever widening and tangled system of

drug dealers. Rogers was one of the four people in the tier below

Royals, but dealt in less volume than others at that level. She

was incarcerated on a state drug conviction from September 1987 to

October 1989, and the government alleged that she began buying

drugs from Royals in 1990.

The government used forty-four (44) different confidential

informants (CIs) in the investigation, and over thirty search

warrants were executed. The government relied on information received from seven of those CIs to establish the drug amount

attributable to Rogers. Rogers alleges that the following

information that came into evidence through the testimony of Waco

Police Officer Darryl Moore is not reliable:

Date Amount Rogers Possessed Source

1988 or prior to 1/2 pound of amphetamine CI# 20 Rogers' incarceration

approx. 1/11/89 1/2 pound of amphetamine CI# 21

Fall 1990 1/2 ounce daily for 3-4 CI# 21 month -- 45 ounces

2/15/91 1/8 ounce of amphetamine CI# 12

3/21/91 9.25 grams amphetamine CI# 12

5/22/91 1 ounce of amphetamine CI# 17

However, Rogers admitted possessing a maximum of one pound of

amphetamine, which amount was corroborated by Royals who reported

during his debriefing that he sold Rogers not more than a pound of

amphetamine.

DISTRICT COURT CONCLUSION

After Rogers' guilty plea, the U.S. Probation Office prepared

her Presentence Report, in which the Probation Officer concluded

that 2,196.82 grams of amphetamine were attributable to Rogers.

The Probation Officer reached this conclusion by adding up the

amounts reportedly witnessed by various confidential informants,

2.71 grams recovered pursuant to a search warrant, and

approximately one pound (453.6 grams) alleged by co-defendant

Michael Royals during his debriefing. Rogers objected to the

computation of the drug amount on the grounds that much of the

3 amphetamine had been double counted and that much of the

information relied upon by the Government was unreliable. The

district court subtracted the 453.6 grams reported by Royals,

because the Government could not establish that the drugs that

Royals claimed he sold to her were not the same drugs that were

reported by the CIs. The court found that 1700 grams were

attributable to Rogers.

CORROBORATION

Pursuant to § 1B1.1 of the Sentencing Guidelines, the first

step in sentencing one convicted of violating 21 U.S.C. § 841(a)(1)

is to determine the base offense level provided by § 2D1.1 of the

Sentencing Guidelines. Several base offense levels are provided by

U.S.S.G. § 2D1.1, depending on the amount of drugs attributable to

the convicted person. The original base level offense calculated

by the probation office was 28, based on the recommendation that

2.194 kilograms of drugs were attributable to Rogers. The district

court's finding that 1700 grams were attributable to Rogers reduced

the base level offense to 26 (between 500 grams and two kilograms

of amphetamine). Rogers' contention is that the court should have

found that no more than one pound (453.6 grams) of amphetamine was

attributable to her, resulting in further reduction of the base

level offense, and a corresponding decrease in the applicable

guidelines.

For sentencing purposes, the district court may consider any

relevant evidence "without regard to its admissibility under the

rules of evidence applicable at trial, provided that the

4 information has sufficient indicia of reliability to support its

probable accuracy." U.S.S.G. § 6A1.3. More specifically, out-of-

court declarations by an unidentified informant may be considered

where there is good cause for the nondisclosure of his identity and

there is sufficient corroboration by other means. U.S.S.G. § 6A1.3

(citing United States v. Fatico, 579 F.2d 707 (2d Cir. 1978)). See

also United States v. Young, 981 F.2d 180 (5th Cir. 1993). Rogers

does not challenge, and Moore's testimony supports, the district

court's implicit finding that there was good cause for

nondisclosure of the identities of the CIs in this case.

The issue remaining for this court to determine is whether the

information used to sentence Rogers was grounded in some indicia of

reliability. The "some indicia of reliability" language has been

interpreted by this Court to require that the facts used by the

district court for sentencing purposes be reasonably reliable.

United States v. Shacklett, 921 F.2d 580, 585 (5th Cir. 1991).

Rogers established at the sentencing hearing that it was not

possible for CIs #20 and #21 to have seen her with drugs in her

possession on the dates reported in 1988 and 1989 because she was

incarcerated on those dates. In response, the government argues

that, according to Moore's testimony, CI #20 specifically stated

that he observed Rogers with the drugs before she went to prison

and that the discrepancy in the dates of CI #21's report is not so

large as to render the information unreliable, particularly when

the informant, estimating the time frame years later, only

approximated the date. Further, Rogers complains that the

5 government offered no specific corroboration of the amounts

reported by the CIs; all that was offered was Moore's testimony

regarding the general reliability of the CIs and other evidence of

Rogers' drug activity.

In United States v. Young, 981 F.2d 180 (5th Cir. 1993) this

court faced a similar situation where a defendant presented

evidence that tended to rebut information provided by CIs whose

identity was not disclosed. The government provided corroboration

in the form of evidence obtained from their own investigation

concerning the defendants' involvement in drug dealing and the CIs'

past record of reliability, without specifically corroborating the

drug amounts reported by the CIs. We noted in Young that the

district court, although faced with a paucity of defendants'

rebuttal testimony, halved the amount of drugs reported by the CIs

to "tak[e] into account uncertainty and the possibility of

exaggeration." Id. at 186.

This case presents a closer question than we faced in Young.

The rebuttal testimony here clearly established that at least some

portion of the CI reports were wrong. However, the discrepancy

established did not impact directly on the report of approximately

forty-five (45) ounces that CI #21 reported that Rogers sold to a

codefendant in repeated small transactions in the Fall of 1990. In

fact, Rogers' own version of the facts corroborated that most of

her involvement occurred during this period. Much like Young, the

extensive government investigation in this case corroborated many

of the other details of the drug distribution scheme, but did not

6 establish the amount of drugs attributable to Rogers except through

the challenged CI reports. We find that on the record, viewed in

its entirety, sufficient indicia of reliability accompanied the

CIs' reports that the district court was justified in relying on

them to determine the quantity of drugs with which Rogers had been

associated without corroboration of the specific amounts alleged.

See also United States v. Windham, 991 F.2d 181 (Fifth Cir. 1993).

DUPLICATION OF DRUG AMOUNT

Rogers argues that the amount of drugs reported by the CIs

duplicated the amount reported by Royals. The district court

recognized that danger and subtracted the amount Royals reported

from the total. Rogers suggests, without authority, since the

government did not present evidence of any drug source other than

Royals, the court should have believed Royals instead of the CIs

because he is a known person who is subject to cross examination.

Rogers also argues that the various CIs could have reported the

possession of the same quantity of drugs more than once. These

speculations do not support a holding that the lower court's

finding was clearly erroneous.

RELEVANT CONDUCT

Finally, Rogers argues that the district court erred in

considering the drug quantities reported by CIs #20 and #21 prior

to 1988, because "in the unlikely event" they did see Rogers with

drugs, such conduct would be outside the scope of relevant conduct

for the offense of conviction. In effect, Rogers argues that the

conduct had to occur, if it occurred at all, before 1988, and that

7 pre-1988 drug sales were not part of the conspiracy alleged in the

indictment. She also complains that the district court made no

finding as to whether the conspiracy existed in 1987.

When calculating quantities of drugs upon which to base a

sentence, quantities not specified in the indictment, if part of

the same scheme, course of conduct, or plan, may be used to

determine the base offense level. Young, 981 F.2d at 185. The

Presentence Report (PSR) concluded that the conduct in question

constituted relevant conduct. While Rogers objected to the

inclusion of the pre-1988 quantities, she offered no evidence that

they were not part of the same course of conduct. The district

court was therefore free to adopt the PSR without further inquiry.

United States v. Rodriguez, 897 F.2d 1324, 1327-28 (5th Cir. 1990)

(Where defendant disputes facts stated in the PSR, but presents no

rebuttal evidence, the district court has discretion to adopt the

PSR's facts without more specific inquiry or explanation, provided

that those facts had an adequate evidentiary basis.)

CONCLUSION

We cannot say that based on all of the evidence available for

consideration that the district court's determination that 1700

grams of amphetamine were attributable to Rogers was clearly

erroneous.

We AFFIRM.