United States v. Taylor

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 18, 2002
• Docket: 00-30936
• Status: Published

Opinion

Revised January 15, 2002

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-30936

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SHANNON TAYLOR, also known as Shandoe,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana

December 21, 2001 Before JONES, and DeMOSS, Circuit Judges, and LIMBAUGH,1 District Judge.

DeMOSS, Circuit Judge:

Shannon Taylor was charged in a 17-count indictment with ten

other individuals. Taylor ultimately entered into a plea agreement

in which he agreed to plead guilty to count one (conspiracy to

distribute cocaine base) and to provide substantial assistance in

1 District Judge of the Eastern District of Missouri, sitting by designation. the case. In exchange, the government agreed to dismiss the

remaining four counts against Taylor and to file a § 5K1.1 motion

for downward departure. As part of his plea agreement, Taylor was

granted use immunity for statements to law enforcement agents and

testimony against others. Taylor now appeals his sentence because

he claims that the PSR used to determine his sentence contained

drug quantities that were not known to the government until he

provided the information.

BACKGROUND

Shannon Taylor (a.k.a. Shandoe) was charged with five drug

distribution and conspiracy counts in a 17-count indictment along

with ten other individuals. Pursuant to a plea agreement, Taylor

pleaded guilty to count one (conspiracy to distribute cocaine base)

and the government agreed to dismiss the remaining counts against

Taylor and to file a § 5K1.1 motion for downward departure if

Taylor provided substantial assistance. As part of his plea

agreement, Taylor was granted use immunity for statements to law

enforcement agents and testimony against others. Based on the pre-

sentencing investigatory report (“PSR”) issued, Taylor received 240

months imprisonment (the statutory maximum) and, subsequent to the

government’s filing of a § 5K1.1 motion, the court departed

downward and sentenced Taylor to 120 months of imprisonment.

Taylor objected to the trial court’s use of the PSR and

2 specifically objected to paragraphs 15, 16, 17 and 18 of the PSR as

to the drug quantities alleged.

Paragraph 15 alleges that Taylor was supplied with

approximately 25 ounces of cocaine base from January 1999 until

early December 1999. Paragraph 16 alleges that Taylor also

received approximately two ounces of cocaine base every two weeks

in 1999 from a source in Cullen, Louisiana, and concludes that the

total distributes from this source was approximately 100 ounces

(though this number is clearly incorrect2). Paragraph 17 provides

that, on one occasion, Taylor and Dale Anderson purchased nine

ounces of cocaine base in Cullen, Louisiana. Paragraph 18 provides

that the total amount of cocaine base attributed to Taylor for the

conspiracy charged is at least 134 ounces or 3,798.90 grams, or

3.798 kilograms.

Taylor objects that the information in paragraphs 15, 16 and

17 is based on information that he provided and that it is

therefore protected by his use immunity agreement. Taylor further

objects that paragraphs 16 and 17 are in regard to transactions

totally unrelated to the conspiracy with which he is charged.

Finally Taylor argues that the total amount reached in paragraph 18

is wrong (based on the faulty 100 ounce number in paragraph 16) but

concedes that even if the math is corrected, if all else remains

2 The time period alleged is approximately 50 weeks. Two ounces every two weeks is therefore a total of 50 ounces.

3 the same then this mistake will not affect Taylor’s base level of

38.3 If Taylor is correct in his assertion that the drug

quantities in the PSR should not have been used, this would

drastically alter his base level.

DISCUSSION

Standard of review

A defendant may appeal a sentence imposed under the Sentencing

Guidelines if the sentence “(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines; or (3) is greater than the sentence

specified in the applicable guideline range . . . .” 18 U.S.C.

§ 3742(a); United States v. Shipley, 963 F.2d 56, 58 (5th Cir.

1992). A district court’s application of the Sentencing Guidelines

is reviewed de novo; however, the sentencing court’s findings of

fact are reviewed for clear error. United States v. Peterson, 101

F.3d 375, 384 (5th Cir. 1996). In determining a sentence, the

district court is not bound by the rules of evidence and may

consider any relevant information without regard to its

3 There also appears to be at least two other abnormalities in the proceedings. In count 13 of the original indictment, Taylor was alleged to have sold over five grams of cocaine base, which Taylor insisted was incorrect. He was right, as the crime lab report showed that the amount was only 2.6 grams and not the 6.2 alleged. Also, the government seems to have dropped from the PSR an allegation that Taylor was a “mid-level distributor” possibly in response to Taylor’s objection that there was no evidence to support the allegation. This places Taylor’s base level at 35.

4 admissibility provided the information considered has sufficient

indicia of reliability. United States v. Shacklett, 921 F.2d 580,

584 (5th Cir. 1991) (citing U.S.S.G. § 6A1.3(a)). The district

court’s reliance on a PSR for the quantity of drugs is based,

therefore, on a finding of fact that the PSR’s information contains

an indicia of reliability and should be reviewed for clear error.

See id. (finding that the district court clearly erred in relying

on the drug quantity in a PSR because it lacked any indicia of

reliability); Cf. Peterson, 101 F.3d at 384 (finding that a

district court’s determination of the amount of financial loss,

based in part on a PSR, is a factual finding that will be reviewed

for clear error).

The district court’s decision to base the sentence on the contested PSR

The only fact in dispute in this case is whether the

information provided as to drug quantities in the PSR was provided

by Taylor or by other sources, independent of the information

provided by Taylor as part of his plea agreement.4 Taylor contends

that he either provided the information directly or gave leads that

were used against him to get the quantities in dispute. The

government answers that the information was wholly obtained from

4 At sentencing, information provided under a use immunity agreement may be considered but shall not be used in determining the applicable guideline range except to the extent provided in the agreement. U.S.S.G. § 1B1.8(a). Use of such information is acceptable if the information was “known to the government prior to entering into the cooperation agreement . . . .” § 1B1.8(b)(1).

5 outside sources, independent of Taylor’s assistance. Neither side

has offered evidence in support of their claim and so the question

becomes one of who has the burden of proof. If it is Taylor, then

he has failed and his claim is without merit. If the government

has the burden, however, then the sentence should be vacated and

the case should be remanded for re-sentencing.

Generally, a PSR bears sufficient indicia of reliability to

permit the district court to rely on it at sentencing. United

States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000); United States

v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). “The PSR, however,

cannot just include statements, in the hope of converting such

statements into reliable evidence, without providing any

information for the basis of the statements.” Dabeit, 231 F.3d at

983. Normally, the defendant has the burden to show that the

information relied on in a PSR is inaccurate. United States v.

Franklin, 148 F.3d 451, 460 (5th Cir. 1998); Ayala, 47 F.3d at 490.

The rebuttal evidence presented by the defendant must show that the

PSR’s information is materially untrue, inaccurate or unreliable.

United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).

Though the standard set out above would indicate that Taylor

has failed to meet his burden, the burden is not the same when a

“use immunity” plea agreement is involved. “Under a grant of use

immunity, the government is prohibited from using information

provided by the defendant in any criminal case.” United States v.

6 Cantu, 185 F.3d 298, 301 (5th Cir. 1999). This prohibition is

comprehensive, i.e., the government may not use the defendant’s

testimony directly as evidence or indirectly as an investigatory

lead. Id. at 301-02; Kastigar v. United States, 406 U.S. 441, 460-

62 (1972). Furthermore, information that is provided pursuant to

such an agreement may not be used in determining the applicable

guideline range under the Sentencing Guidelines. U.S.S.G.

§ 1B1.8(a). “When a defendant claims that the government

wrongfully used immunized testimony, the government has the burden

of proving by a preponderance of the evidence ‘that the evidence it

proposes to use is derived from a legitimate source wholly

independent of the compelled testimony.’” Cantu, 185 F.3d at 302

(quoting Kastigar, 406 U.S. at 460); see also United States v.

Fulbright, 804 F.2d 847, 852 (5th Cir. 1986) (applying Kastigar in

sentencing context in a pre-guidelines case).

The government contends that the burden is on Taylor to rebut

the PSR, which Taylor has not done. The government further cites

to United States v. Gibson, 48 F.3d 876 (5th Cir. 1995), to support

its position that the district court was correct in relying on the

PSR. Gibson, however, actually supports the proposition that the

burden is on the government to prove that the drug quantity

information came from sources other than the defendant. In Gibson,

a defendant’s sentence was calculated using information provided by

two co-defendants. Id. at 877. The defendant, Gibson, asserted

7 that the information was based on information provided by him and

its use violated a plea agreement that he had entered into with the

government. Id. at 879. Though a probation officer testified that

none of the information came from the defendant, Gibson asserted

that the government’s burden could not be satisfied by the

probation officer’s testimony alone. Id. The court responded

that:

Because the probation officer unequivocally testified that none of the drug-quantity information obtained from Gibson . . . was used to determine his offense level, and because it was Gibson who subsequently corroborated his co- defendants’ accounts of the drugs transported during the earlier trips, the district court’s determination that § 1B1.8 was not violated will not be disturbed.

Id. (emphasis added). This holding not only tacitly approves of

the burden being on the government but also makes it clear that

this burden was met because the probation officer unequivocally

testified as to the matter.

Further support that the burden lies with the government can

be found in United States v. Shacklett, 921 F.2d 580 (5th Cir.

1991). In Shacklett, the district court relied on the

unsubstantiated assertions of the probation officer that the

information regarding drug amounts came from coconspirators and law

enforcement officers. Id. at 584. There was nothing in the record

in Shacklett, aside from the PSR, to corroborate this. Id. The

defendant pleaded guilty to one count of conspiring to manufacture

8 and to possess with intent to distribute nine pounds of

amphetamine. Id. at 581. At sentencing, Shacklett objected to the

court’s use of 66 pounds of amphetamine to calculate his offense

level, rather than the nine pounds stipulated to in the plea

agreement because, he claimed, the government reliably knew of only

the lesser amount before he cooperated. Id. at 584. The

government conceded that when Shacklett agreed to cooperate, only

nine pounds of amphetamine were attributable to Shacklett. Id.

The probation officer intervened, stating that the government knew

of the 66 pounds because Preston Isham, a convicted member of the

same drug conspiracy, had informed the government that 66 pounds of

amphetamine had been produced in his labs in which Shacklett was

the “cook.” Id. The district court relied on the probation

officer’s assertion, adopted the findings of the PSR, and sentenced

Shacklett based on 66 pounds of amphetamine. Id. at 582. This

Court reversed that finding on the basis that no indicia of

reliability existed to support the probation officer’s contention.

Id. at 584.

This Court specifically found that the government had failed

to establish that the evidence had any indicia of reliability,

stating:

The PSR does not refer to the source of the "facts" it contains and is unclear as to who (if not Shacklett) or what provided the information to the probation officer. Throughout the PSR, the probation officer refers to "an interview of

9 Isham," conducted by the DEA, but nowhere is it stated when, where, by whom, or for what purpose Isham was interviewed. It is unclear whether the probation officer who conducted Shacklett’s presentence investigation directly contacted the unnamed DEA agent, spoke to Isham personally, or relied on a written report of the interview. Therefore, we are left to review a sentence based on an unproduced report, which could have been either written or oral, made by some unidentified DEA agent at some point before Shacklett cooperated with the government. Contrary to the government's assertion on appeal, the district court could not have made a credibility determination between Shacklett and Isham, because neither Isham nor the mystery DEA agent ever appeared before the sentencing court.

Despite ample notice that Shacklett challenged the reliability of the sixty-six pound quantity, the district court never required the probation officer who prepared Shacklett’s PSR to produce the report or support his conclusion in any way. Rather, the court based Shacklett’s sentence on the probation officer's bald assertion that the government knew of the amount prior to Shacklett’s cooperation. The district court clearly erred in using the sixty-six pounds as a basis for Shacklett’s sentence, without more than the probation officer's conclusory statement, particularly in light of the government's concession on the issue.

Id. at 584. Though the government tries to distinguish the present

case from Shacklett on the basis that the government in Shacklett

conceded at one point that the defendant was correct, the court in

Shacklett made it clear that it was the ambiguity of the evidence

and lack of testimony that destroyed the reliability of the PSR.

Considering the number of errors made in this case, the reliability

of the PSR was already on shaky ground. See n.2-3, supra.

Furthermore, it seems clear from Shacklett and Gibson that, when a

10 use immunity agreement is involved, and the defendant questions the

sources of the evidence used against him at sentencing, the burden

is on the government to show that the evidence is from outside

sources.

The present case is very similar to Shacklett. Both cases

involve a defendant who engaged in a plea agreement which granted

him use immunity. As in Shacklett, the PSR in the present case

contained information that, from the record, already seemed

questionable at the time the district court was considering it for

sentencing. Also, as in Shacklett, the probation officer did not

testify as to where the information contained in the PSR came from.

This Court is convinced, therefore, that the burden was on the

government to show that the PSR had an indicia of reliability as

required by U.S.S.G. § 6A1.3(a). The government’s bald assertions

that the evidence did not come from Taylor are not enough to

sustain this burden. Id.; see also United States v. Elwood, 999

F.2d 814, 817-818 (5th Cir. 1993) (citing United States v.

Paterson, 962 F.2d 409, 415 (5th Cir. 1992) to support the holding

that, when the burden is on the government, unsworn assertions by

government agents do not provide, by themselves, a sufficiently

reliable basis on which to sentence a defendant); cf. Gibson, 48

F.3d at 879 (holding that when a probation officer testified, the

district court did not err in relying on the PSR). Had the

probation officer testified as to where the information came from

11 and been able to give more details, then this case might have had

a different outcome. See Gibson, 48 F.3d at 879. As it stands, it

should be remanded.

CONCLUSION

The standard of review for findings of fact such as drug

quantity and whether or not a PSR’s information has an indicia of

reliability should be reviewed for clear error. Though such cases

normally place the burden on the defendant to produce evidence

rebutting the PSR, when a plea agreement involving use immunity is

involved, the burden shifts to the government to prove that the

information in the PSR is not based on information obtained from

the defendant. The threshold for meeting this burden is low; in

many cases the government need only present testimony as to the

source of the information. When the government relies on bald

assertions, however, as they have done in the present case, the

government fails to meet this burden. Therefore, having carefully

reviewed the record of this case and the parties’ respective

briefing and for the reasons set forth above, we conclude that the

district court clearly erred in considering the PSR because the

court did not require the government to prove that the PSR

contained an indicia of reliability. The district court’s sentence

is VACATED, and the case is REMANDED for re-sentencing.

VACATED AND REMANDED.