UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________________

No. 91-8554 ___________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

VERSUS

SCOTT LEE YOUNG, Defendant-Appellant.

*************************************** _________________________

No. 91-8555 _________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

VERSUS

DONALD CHARLES ALLMAN, Defendant-Appellant.

*************************************** ________________________

No. 91-8556 ________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

VERSUS

MICHAEL ALLEN CROW, Defendant-Appellant.

_______________________________________________

Appeals from the United States District Court for the Western District of Texas ______________________________________________

(December 28, 1992)

Before JONES, BARKSDALE, Circuit Judges, and JUSTICE, District Judge.1

BARKSDALE, Circuit Judge:

Scott Lee Young, and Donald Charles Allman pleaded guilty to

conspiring to possess methamphetamine and amphetamine with intent

to distribute. Allman also pleaded guilty to possessing

amphetamine with intent to distribute. Michael Allen Crow pleaded

guilty only to possessing amphetamine with intent to distribute.

Their presentence reports (PSR) recommended that they be

accountable for the distribution of several kilograms of

methamphetamine -- Young, 7.8; Crow and Allman, 3.41 and 3.46

respectively. Subsequent to a sentencing hearing, the district

court concluded that the information in the PSRs was reliable, but

found each defendant accountable for only roughly half the amount

of methamphetamine recommended by the PSR. Finding no reversible

error, we AFFIRM.

I.

On August 4, 1990, the Waco police executed a search warrant at

a trailer, which was the residence of Allman and Crow. Probable

cause for the search was based on surveillance of the trailer, as

well as information received by the police that Allman, Young, and

others were dealing amphetamine and/or methamphetamine out of it.

The search uncovered 1.01 grams of amphetamine, baggies, scoops,

triple-beam scales, what appeared to be ledger books reflecting

narcotics transactions, and other notes and papers. Crow was

1 District Judge of the Eastern District of Texas, sitting by designation. arrested and charged with possession of amphetamine2; he was

released two days later. Allman and Young remained at large.

Subsequent to the August 4 search, officers continued to receive

information regarding the distribution of methamphetamine and/or

amphetamine by Young, Allman, and Crow. Specifically, they were

told that on January 20, 1991, Young and Allman would be returning

to Waco, Texas, from Fort Worth via I-35 with methamphetamine

and/or amphetamine; their vehicle was described as a white

Chevrolet Monte Carlo, Texas License number 148LMW. Based upon

this information, the Waco police established surveillance along

the interstate. When the officers spotted the vehicle on January

20, they followed it as it exited the highway for a brief stop at

an unknown residence, and then continued to a convenience store.

The officers approached the men outside the store; Young attempted

to flee, but was apprehended; Allman was also apprehended.

The officers' search of Allman uncovered a baby food jar

containing methamphetamine. The officers also searched the

surrounding area where they had observed Young dropping objects

from his pockets as he fled. This search uncovered several plastic

bags containing methamphetamine, and a baby food jar containing

methamphetamine. The vehicle was inventoried, and more containers

of methamphetamine, methamphetamine oil, and other paraphernalia

were recovered. The total amount of methamphetamine seized from

Young and Allman on January 20 was 64.05 grams.

Crow, Young, and Allman were indicted for conspiring to possess

2 During the execution of the search, Allman escaped.

- 3 - methamphetamine and amphetamine with intent to distribute (Count

1); Allman was also charged with possessing amphetamine with intent

to distribute (Count 2). Young and Allman pleaded guilty as

charged. Pursuant to a plea bargain, Crow pleaded guilty to a

superseding information, charging him only with possessing

amphetamine with intent to distribute.

The PSRs recommended that Crow and Allman be held accountable for

3.41 and 3.46 kilograms of methamphetamine respectively; Young, 7.8

kilograms of methamphetamine. These amounts were based on

confidential informant (CI) information, which indicated that Young

transported at least 6 ounces of methamphetamine two times per week

(total 12 ounces per week) for four months prior to his January

1991 arrest. According to the CI, Crow and Allman each received

from Young no less than six ounces of methamphetamine per week,

which they packaged and distributed in Waco.

In September 1991, the district court conducted a sentencing

hearing, in which the government presented its CI information

through the testimony of two narcotics agents as well as

corroborating evidence. At the conclusion of the hearing, the

court determined that the CI information was reliable and therefore

accepted the amounts set forth in the PSRs. However, based upon a

concern for potential exaggeration, the court halved the amounts

for each defendant, resulting in a guideline sentencing range for

Young of 135-168 months; for Crow, 151-188 months; and for Allman,

108-135 months. The sentences included imprisonment of 160 months

for Young, 170 for Crow, and 120 for Allman.

- 4 - II.

A.

Young contends that the district court abused its discretion in

denying his request to withdraw his guilty plea. There is no

absolute right to do so. United States v. Badger,

(5th Cir. 1991). Fed. R. Crim. P. 32(d) conditions the right

to so withdraw before sentencing upon the showing of "any fair and

just reason". But, we reverse a denial of the motion "only for

abuse of discretion".

.

Young reasserts that the prosecutor misled him into believing

that he would only receive a 77 to 96 month sentence, based on the

consideration of 64 grams of methamphetamine, and therefore his

plea was involuntary. On the day of his sentencing hearing, Young

asked to withdraw his plea, stating in support that the prosecutor

misinformed him as to its consequences. The court denied the

request on the basis of Young's express understanding in open court

at the time of his plea that his guideline range could not be

predicted, that it was "directly related to the amount [of

controlled substance] involved".3

"For a plea to be knowing and voluntary, `the defendant must be

advised of and understand the consequences of the [guilty] plea,'"

United States v. Gaitan,

(5th Cir. 1992)

(quoting United States v. Pearson,

(5th Cir.

3 At the plea hearing, the court advised Young, inter alia, that his sentence under the guidelines could not be predicted, that "the amount of controlled substance involved has a direct bearing." Young stated that he understood this.

- 5 - 1990), cert. denied, ___ U.S. ___,

(1991)). This

includes knowing "the maximum prison term and fine for the offense

charged". Id. at 1012 (quoting United States v. Rivera,

(5th Cir. 1990)).4

Young was fully aware of his potential prison term and fine.

Prior to accepting the plea, the court informed Young that each

count carried a maximum of 20 years imprisonment, three years of

supervised release, and up to a $1,000,000 fine. He received a

sentence of thirteen years and four months, three years supervised

release, and a $2,000 fine. Accordingly, we conclude that he was

aware of the consequences of his plea and, therefore, reject his

voluntariness contention. See Gaitan,

.5

Although the district court disposed of Young's motion on the

voluntariness issue, its ruling is buttressed by other relevant

factors.6 Young did not assert his innocence, nor did he express

4 This court stated in Rivera,

, that "[a]s long as the [defendant] `understood the length of time he might possibly receive, he was fully aware of his plea's consequences'". 5 Of course, we also take note of the fact that Young stated in open court at his plea hearing (1) that his plea was voluntary; (2) that he was not forced, threatened, or coerced, in any way, into pleading guilty; (3) that, as discussed, he understood that his punishment range could not be accurately predicted because the amount of drugs involved was a matter in dispute; and (4) that he had not received any prediction, prophesy, or promise as to the terms of his sentence. "The defendant's declaration in open court that his plea is not the product of threats or coercion carries a strong presumption of veracity." United States v. Clark,

(5th Cir. 1991) (quoting United States v. Darling,

(7th Cir.), cert. denied,

(1985)). Young does not rebut this presumption. 6 Seven factors set forth in United States v. Carr,

(5th Cir. 1984), cert. denied,

(1985), guide the district court's disposition of a motion for withdrawal:

- 6 - dissatisfaction with his attorney. He delayed filing his motion

until the day of sentencing, three months after his plea. "The

burden of establishing a fair and just reason for withdrawing a

guilty plea remains at all times on the defendant." Badger,

. Young has failed to meet his burden; the district

court did not abuse its discretion in denying the motion.

B.

Appellants contend that the district court erred in the

calculation of their sentences by relying on uncorroborated double

and triple hearsay statements derived from CIs. They object

particularly to reliance on CI #1, who reported to officer Moore

that Young transported approximately 12 ounces of methamphetamine

and/or amphetamine per week over a period of four to five months

and distributed two to three baby food jars of the substance, each

containing approximately one ounce, to Crow and Allman. The

probation officer and district court relied on the statements of CI

#1 as reported through Moore.

"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

(1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the Government; (3) whether the defendant delayed in filing the motion and, if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether adequate assistance of counsel was available to the defendant; (6) whether his plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources.

- 7 - 442, 445 (5th Cir. 1990).7 In our review, we take into account the

district court's "wide discretion in the kind and source of

information [it] considers in imposing sentence". United States v.

Garcia,

(5th Cir. 1982). 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 information has sufficient

indicia of reliability to support its probable accuracy." U.S.S.G.

§ 6A1.3. Obviously, the district court has significant discretion

in evaluating reliability. United States v. Kinder,

(5th Cir. 1991), cert. denied, ___ U.S. ___,

(1992).

When calculating the quantity of drugs upon which to base a

sentence, "[q]uantities of drugs, 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". United States v.

Montes,

(5th Cir. 1992) (citing U.S.S.G. §

1B1.3). "In making this determination, the district court may rely

on the information presented in the presentence investigation

report so long as the information has `some minimum indicium of

reliability' .... The defendant bears the burden of demonstrating

7 We adhere, of course, to the limitations set forth in Anderson v. City of Bessemer City,

(1985):

If 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.

- 8 - that information the district court relied on in sentencing is

`materially untrue.'" United States v. Vela,

(5th Cir.) (internal quotations omitted), cert. denied, ___ U.S.

___,

(1991).

At the sentencing hearing, two officers testified about their

lengthy investigation of appellants, and the CI statements. They

vouched for the reliability of the CIs, stating that each had been

instrumental in obtaining convictions in the past, and that the CIs

reported drug dealing on the part of all three appellants in

conjunction with one another.8

The officers corroborated the CI statements with evidence

obtained from their own investigation. Officer Herwald arranged

"buys", which involved the sale of amphetamine by Crow to an

informant. Tips from CIs resulted in the August 4 search of the

trailer, during which Crow was arrested and Allman escaped. From

this search, the officers recovered amphetamine, drug

8 The information provided by CI #1 is stated supra.

CI #2 provided information prior to the August 4 search. He stated that Crow sold methamphetamine or amphetamine daily, and that Crow was said to have boasted that he earned $300 in 30 minutes. He estimated that Crow sold about one ounce in a week's time.

CI #3 stated that he witnessed Crow sell one ounce of methamphetamine or amphetamine out of the trailer prior to the August 4 search and that Crow was obtaining his amphetamine or methamphetamine from Young or Allman.

CI #4 provided the same information as CI #1, except #4 did not specify amounts.

CIs #5 and #6 stated, prior to the August 4 search of the trailer, that Young and Allman were dealing narcotics out of the trailer.

- 9 - paraphernalia, including bags, scales, and scoops, and they also

recovered ledgers and other notations that indicated drug dealing.

Information from CI #1 and CI #4 resulted in the January 20 seizure

of Allman and Young. Informants accurately described the car, the

license plate, the route, and the fact that the men would be

transporting drugs in baby jars. The evidence obtained from the

January 20 seizure provided further indication of drug dealing;

they recovered baby jars of methamphetamine, filters, a knife and

clothing that both contained an odor related to methamphetamine

manufacturing, and miscellaneous paraphernalia.

The court gave each appellant the opportunity to present rebuttal

evidence; only Crow did so. He tangentially attempted to rebut the

officers' testimony regarding the amount of drugs at issue by

presenting witnesses who testified to his financial situation and

work experience, and introduced into evidence an exculpatory letter

written by Young.

The district court carefully evaluated the testimony and other

evidence and determined that the information that provided the

basis for the PSR recommendations was reliable.9 Accordingly, the

district court, like the probation officer, based his sentencing

determination concerning amounts on the statements by CI #1.

However, taking into account uncertainty and the possibility of

9 It stated that "the information from the [CIs] ... concerning the transportation of controlled substances from Fort Worth to Waco is certainly corroborated by the other informants, by the physical evidence, [and] by [] all aspects of the lengthy investigation engaged in by the Police Department in this case and is sufficiently reliable."

- 10 - exaggeration, he found appellants responsible for the

transportation of only ten ounces, twice a week for four months,

and, in addition, he halved that amount. This finding is not

clearly erroneous.

C.

1.

Appellants contend, on two bases, that it was error for the court

to rely on information from CIs; first, because the government

failed to establish good cause for their nondisclosure. They refer

to the commentary to U.S.S.G. § 6A1.3 (quoting United States v.

Fatico,

(2d Cir. 1978)), which provides that "[o]ut-

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.'"

In addition, Crow contends that the district court erred in

summarily overruling his attempt to show the inapplicability of the

government's withholding disclosure and in denying his pre-plea

motions for discovery and inspection.

Although clearly on notice through the PSRs that the government

was relying on CIs, appellants did not object to the government's

failure to show good cause for nondisclosure. Only Crow made an

attempt to discover their identities. He submitted a disclosure

request in April 1991 as part of a motion for discovery and

inspection, but his guilty plea in June 1991 rendered this pre-

trial motion moot. See Fed. R. Crim. P. 12(f); Barrientos v.

United States,

(5th Cir. 1982). He did not renew

- 11 - his request at the Rule 11 hearing held in June; he did not request

disclosure in his objections to the PSR filed in July 1991; and he

did not submit a request to the district court in the two month

interim between the filing of his PSR objections and his sentencing

hearing in September.10 It was only after the government had begun

10 Crow also had the opportunity to object to nondisclosure at the beginning of the sentencing hearing. Before the government proceeded with its first witness, the following exchange occurred:

THE COURT: I believe there are objections that might apply to each of these Defendants, particularly the amount of controlled substance that would constitute the appropriate relevant conduct. So I think it might save us all time if we heard the evidence together and would suggest that the Government present whatever witnesses it desires to confront any objections that have been filed. And then we'll allow all three attorneys to cross-examine the witnesses to the extent they wish.

MR. FRAZIER: Yes, sir, Judge. We're ready to proceed.

* * *

THE COURT: So we'll have a clear understanding, what common objections do we have, Mr. Frazier, --

MR. FRAZIER: Your Honor, --

THE COURT: ... We -- we are concerned with the amount of controlled substance that would constitute relevant conduct. Are there other matters that are common or -- or that we would have witnesses testifying about?

MR. FRAZIER [United States Attorney]: The only -- the only witnesses the Government has prepared to present are on the offense level. There are other objections, but I don't believe there are any that cross the same lines as to each three, and they're legal objections as to the Guidelines only, --

THE COURT: All right.

MR. FRAZIER: -- I think. Is that correct, Counsel?

MR. MOODY [Allman's counsel]: Y o u r Honor, I have an objection to the failure to grant the two point reduction

- 12 - to present testimony that Crow objected and asked that the

identities of the CIs be disclosed and that they be brought to the

courtroom for cross-examination. (Even then, he based his objection

only on the claim that the CIs lost their confidential status by

sharing information with persons other than the officers, not on

the government failing to show good cause for nondisclosure; as

discussed in note 12, infra, he discussed § 6A1.3 in closing

argument, but did not contend that any burden of proof was on the

government.) At that point, it was simply too late in the day to

expect the district court to seriously consider his request.

Appellants contend, however, that the burden was on the

government to show good cause for nondisclosure, and that,

therefore, they were not required to object to the government's

claimed failure to do so. Even assuming, without deciding, that

the government did have such a burden, appellants were still

required, of course, to timely object in order to preserve this

issue for appeal. United States v. Vontsteen,

, 1089-

for acceptance of responsibility. Otherwise, the only objection --

THE COURT: Sure.

MR. MOODY: -- we have is to the amount of the --

THE COURT: But as far as the witnesses, we're going to be dealing with the relevant conduct --

MR. MOODY: -- controlled substance.

THE COURT: -- and the amount involved?

MR. MOODY: That's all.

- 13 - 90 (5th Cir. 1992) (en banc). Accordingly, we review only for

plain error. See United States v. Lopez,

(5th

Cir.), cert. denied, ___ U.S. ___,

(1991).

"Plain error" is error "so obvious and substantial that failure

to notice and correct it would affect the fairness, integrity or

public reputation of [the] judicial proceedings." Id. We will not

find plain error in the failure to adequately justify nondisclosure

of CIs unless it is clear from the record that this rendered the

sentencing process wholly unreliable.

Here, the officers testified in support of the reliability of the

CIs. The defendants were given the opportunity to cross-examine

these officers and present evidence of their own regarding the

falsity of the information conveyed by the CIs. In addition, the

government corroborated the CIs' statements. Therefore, we

conclude that the refusal to disclose the identity of the CIs did

not render the sentencing process wholly unreliable and therefore

do not find plain error.

- 14 - 2.

Appellants also contend that the reliance on the statements of

unidentified CIs denied them both their right to confront witnesses

and due process. Again, they did not object to the evidence on

constitutional grounds; however, even if properly raised in the

district court, these contentions have no merit.11

Hearsay is admissible for sentencing purposes, including

corroborated out-of-court statements by unidentified CIs, and thus

its admission does not violate due process or the right to

confrontation. At sentencing, due process merely requires that

information relied on in determining an appropriate sentence have

"some minimal indicium of reliability" and "bear some rational

relationship to the decision to impose a particular sentence."

United States v. Galvan,

(5th Cir. 1991). We

held, supra, that those requirements are met.

Concerning the right to confrontation, it is more than well-

established that, "a defendant's confrontation rights at a

sentencing hearing are severely restricted." United States v.

Rodriguez,

(5th Cir.), cert. denied, ___ U.S.

11 As stated, Allman and Young did not object to the nondisclosure. And, as noted, Crow's primary objection at the sentencing hearing was based on his unsupported assertion that the government's informants may have waived their right to remain confidential by discussing their testimony with others. Shortly before the close of the government's presentation, Crow presented a second "theory"; he asked the court to compare, in camera, his list of informants with the government's list. In closing argument, Crow, for the first time, cited U.S.S.G. § 6A1.3 and argued that the court's reliance on confidential informants is "beyond the ... contemplation by the sentencing commission." He did not once object that nondisclosure violated his right to confrontation or due process.

- 15 - ___,

(1990). All three defendants were notified as

to the information the government intended to present regarding

their involvement in a drug conspiracy. The court allowed the

defendants to put on a defense as well as the opportunity to cross-

examine the officers who investigated their case and the probation

officer who prepared their reports. Appellants' confrontation

rights were not denied. See United States v. Byrd,

(5th Cir. 1990); United States v. Marshall,

(5th Cir. 1990), cert. denied, ___ U.S. ___,

(1991).

D.

Appellants next object to the use of methamphetamine in

calculating their base offense level. They point out that none of

the informants, including CI #1, specified whether the drugs

distributed were amphetamine or methamphetamine, and that the

officers seized both amphetamine and methamphetamine. They contend

that the district court erred in resolving this uncertainty in

favor of methamphetamine, a substance that results in significantly

higher penalties (approximately double) under the guidelines.

None of the appellants objected to the use of methamphetamine,

as opposed to amphetamine, in calculating their base offense

level.12 We therefore, again, review only for plain error.

12 The objections filed by Allman, Young, and Crow to their PSRs focused on the inclusion of additional methamphetamine as relevant conduct. They stated that, given the speculative nature of the evidence, they should only be held responsible for the 64.05 grams of methamphetamine seized on January 20. They did not object to the probation officer's use of methamphetamine as opposed to amphetamine. (Although Crow's PSR objections may raise this issue, they fail to do so expressly.) At the beginning of the sentencing hearing, the court, for the express purpose of obtaining a "clear

- 16 - "Questions of fact capable of resolution by the district court upon

proper objection at sentencing can never constitute plain error."

United States v. Lopez,

(5th Cir. 1991). The

determination that appellants were involved in the distribution of

over 2,240 grams of methamphetamine is factual.13 Accordingly, we

do not find plain error.

E.

Crow, in objections filed to his PSR and at sentencing, objected

to the use of methamphetamine in calculating his base offense level

on the grounds that he is charged only with possession of

amphetamine, and there is no evidence indicating that he was aware

of any activities involving methamphetamine.

Crow was initially charged with conspiring to distribute

methamphetamine and amphetamine with intent to distribute.

Pursuant to a plea bargain, he pleaded guilty to a superseding

information charging him only with possession of amphetamine with

intent to distribute. Nonetheless, at sentencing, the court held

Crow accountable for the distribution of over one kilogram of

understanding" of common objections before the court, stated for counsel its understanding that appellants were concerned with "the amount of controlled substance that would constitute relevant conduct". (Emphasis added.) See supra note 11. Counsel again failed to object to the use of methamphetamine as opposed to amphetamine, nor did they object during the course of the sentencing hearing. 13 Appellants assert that the question is legal. We disagree. The district court did not make the factual determination that it was uncertain as to the type of drug distributed, and then resolve its uncertainty in favor of the stiffer sentence. Rather, we can infer from the record that the court determined that the substance distributed on a large scale was methamphetamine.

- 17 - methamphetamine based on its factual determination that Crow was

actively involved in a conspiracy with Allman and Young to

distribute it.

When determining the base offense level for drug distribution,

a court may, of course, consider relevant conduct of which the

defendant has not been charged, or convicted. Byrd,

. Similarly, counts to which the defendant does not plea may be

relevant conduct.

In the context of a drug distribution case,

relevant conduct includes additional quantities and types not

specified in the count of conviction if part of the same course of

conduct, plan, or scheme as the count of conviction.14

Accordingly, our sole inquiry with respect to this contention is

whether the district court clearly erred in finding that the

distribution of methamphetamine by Allman and Young was part of the

same course of conduct, common scheme, or plan, as the conduct

underlying Crow's conviction for possession of amphetamine with

intent to distribute. See Byrd,

(stating that the

determination of whether certain drugs are relevant is reviewed for

clear error). We conclude that this factual determination is not

clearly erroneous, even though officers did not personally observe

Crow in possession of methamphetamine.

14 The current commentary to the guidelines states,

[I]n a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.

U.S.S.G. § 1B1.3 (emphasis added).

- 18 - As discussed, supra, a number of CIs independently linked Crow

with drug distribution involving Young and Allman.15 The officers

vouched for the CIs' reliability and, as stated, their statements

were sufficiently corroborated, which provides further assurance of

reliability. There is also circumstantial evidence linking Crow

with Allman and Young's distribution scheme.16 Crow did little to

rebut the statements in the PSR regarding his involvement with

Young and Allman. He presented an affidavit from Young that denied

Crow's involvement in the conspiracy; however, the veracity of this

affidavit was called into question by statements of Allman to the

probation officer regarding his involvement with Crow.17

Accordingly, we do not find clear error.

III.

For the foregoing reasons, the judgments of the district court

are

AFFIRMED.

JUSTICE, District Judge, dissenting.

I dissent from the result reached by the majority. Moreover, I

differ with the majority's analysis of whether resentencing is

15 See supra, note 8. 16 For example, Allman was present at Crow's residence at the time of the August 4 raid, which resulted in the seizure of amphetamine, drug paraphernalia, and other evidence of the distribution of illicit substances. Also, Officer Moore testified that, on January 21, he observed what he believed to be Crow's car at an unknown residence where he had observed Allman and Young briefly stop while transporting methamphetamine the day before (January 20). Moore testified that they had a suspicion that Crow was staying at this residence; CIs reported that Crow had moved there after the search of his trailer. 17 Allman stated, "We (Young, Crow, and I) sold some dope to make our money back for the purchase of same."

- 19 - required where the government failed to establish good cause for

the non-disclosure of the identity of confidential informants.

1. Good Cause Showing for Nondisclosure of Identity of Confidential Informants

The United States Sentencing Guidelines (U.S.S.G.) require a

good-cause showing before the district court considers out-of-court

declarations by confidential informants:

In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial.

. Any information may be considered, so long as it has "sufficient indicia of reliability to support its probable accuracy." (citations omitted) Reliable hearsay evidence may be considered. 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." United States v. Fatico,

(2d Cir. 1978). Unreliable allegations shall not be considered. United States v. Weston,

(9th Cir. 1971).

U.S.S.G. §6A1.3 (Commentary) (emphasis added). See also United

States v. Cuellar-Flores,

(5th Cir. 1989).

U.S.S.G. §6A1.3 incorporated pre-guidelines case law requiring

(1) good cause for not disclosing the identity of an informant, and

(2) corroboration by other means of information furnished by an

undisclosed informant, before this informant's out-of-court

declarations can be used in sentencing. See United States v.

Fatico,

(2d Cir. 1978), cert. denied,

(1980).

In Fatico, a pre-sentencing guidelines case incorporated in the

comments to §6A1.3, the Second Circuit stated: "We hold . . . that

Due Process [and the Confrontation Clause] [do] not prevent use in

sentencing of out-of-court declarations by an unidentified

informant where there is good cause for the nondisclosure of his

identity and there is sufficient corroboration by other means."

Fatico,

(emphasis added). In Fatico, "the district court . . . recognized that the Government cannot and will not

reveal informer's identities because of past murders of informants

who implicated organized crime members."

. The hearsay

also had independent corroboration by testimony of two co-

conspirators.

See also United States v. Weston,

(9th Cir. 1971), cert. denied,

(1972) (cited in

U.S.S.G. §6A1.3 commentary) (where sentencing court relied on

statements of narcotics agents' which were supported, in part, by

a confidential informant's report, court remanded for resentencing,

since due process infringed unless statements of confidential

informants "amplified by information such as to be persuasive of

the validity of the charge there made"); Gardner v. Florida,

(1976) (in the context of capital case, vacating and

remanding where death sentence was based on secret information in

presentence investigation report, which defendant could neither

deny nor explain).

2. Misapplication of Federal Sentencing Guidelines

Pursuant to

(f)(1), if the Court of Appeals

determines that the sentence:

(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate . . . .

(1989 Supp.) (emphasis added).

Under U.S.S.G. §6A1.3 (Commentary), out-of-court declarations by

an unidentified informant may be considered only "where there is

good cause for the nondisclosure of his identity and there is

sufficient corroboration by other means." Fatico,

(2d Cir. 1978).

- 21 - It is questionable whether appellants adequately preserved for

appeal their contention that it was error for the district court to

rely on information from confidential informants without a "good

cause" showing for nondisclosure of their identities. However,

even assuming that appellants did not preserve their contention for

appeal, misapplication of U.S.S.G. §6A1.3 (Commentary) constitutes

plain error in this case. Williams v. United States,

,

(1991).18

Although the party challenging the sentence must show that the

district court relied on an invalid factor at sentencing--in this

case, out-of-court declarations by confidential informants for whom

the government failed to make a good cause showing for non-

disclosure of identity--the reviewing court must determine if the

invalid factor was "determinative in the sentencing decision."

Williams, 60 USLW at 4209.19 "Once the Court of Appeals has decided

that the district court misapplied the Guidelines, remand [under

§3742(f)(1)] is appropriate unless the reviewing court concludes,

18 I assume, but do not decide, that the contemporaneous objection rule applies in a case involving misapplication of the federal sentencing guidelines. The mandatory nature of the Supreme Court's language in Williams would indicate otherwise. In discussing the proper analysis for remand under either §3742(f)(1) or §3742(f)(2), the Court stated, "In order to give full effect to both provisions, therefore, the reviewing court is obliged to conduct two separate inquiries [only the first being relevant to this case]. First, was the sentence imposed either in violation of law or as a result of incorrect application of the Guidelines? If so, a remand is required under §3742(f)(1)." Williams, 60 USLW at 4209 (emphasis added). 19 The fact that the commentary to U.S.S.G. §6A1.3 is at issue in this case does not affect the appropriate analysis as to whether a remand for resentencing is appropriate. Williams, 60 U.S.L.W. at 4208 ("general policy statements regarding application of the guidelines," in addition to the guideline itself, will be cause for remand, if the sentence is the result of misapplication of the guideline.)

- 22 - on the record as a whole, that the error was harmless, i.e., that

the error did not affect the district court's selection of the

sentence imposed." Id.; United States v. Johnson,

(5th Cir. 1992) (adopting Williams and overruling prior

Fifth Circuit law which indicated that improper application of the

sentencing guidelines would always require remand).

In this case, misapplication of the sentencing guidelines

affected the district court's selection of sentence imposed, and

thus remand is appropriate for plain error.

3. Confidential Informant Information Used at Sentencing Hearing Without Good Cause Showing for Nondisclosure of Identity

In this case, the Pre-Sentence Reports of the United States

Probation Office recommended that appellants, Crow and Allman, be

held accountable for 3.41 and 3.46 kilograms of methamphetamine,

respectively, and Young for 7.8 kilograms of methamphetamine.

These amounts were based on confidential informant information,

indicating that Young transported at least six ounces of

methamphetamine two times per week (total 12 ounces per week) for

four months before he was arrested in January 1991. Information

provided by confidential informants was also to the effect that

Crow and Allman each received from Young no less than six ounces of

methamphetamine per week, which they packaged and distributed in

Waco.

Through the testimony of two narcotics agents at the September

1991, sentencing hearing, the government presented this

confidential informant information without making a good cause

showing for nondisclosure of identity. In the absence of a good

cause showing, the sentencing court determined the confidential

- 23 - informant information was reliable and accepted the above-stated

amounts set forth in the Pre-Sentence Reports of the United States

Probation Office. The judge, however, decided to halve the amounts

for each defendant, worrying about potential exaggeration. The

resulting guideline ranges were as follows: for Young, 135-168

months; for Crow, 151-188 months; and for Allman, 108-135 months.

The sentences included imprisonment of 160 months for Young, 170

for Crow, and 120 for Allman.

4. Conclusion

In my opinion, plain error occurred in not requiring a good cause

showing for non-disclosure of the identity of confidential

informants. Under the Williams standard, remand is required here

since, from the record as a whole, it cannot be conclusively

determined that the district court would have imposed the same

sentence, if the government had been required to, and failed to,

make a "good cause" showing for nondisclosure of identity of

confidential informants. See Williams, 60 USLW at 4209 ("in

determining whether a remand is required under §3742(f)(1), a court

of appeals must decide whether the district court would have

imposed the same sentence had it not relied upon the invalid factor

or factors.")

For the reasons stated above, I respectfully dissent.

- 24 -