USA v. Valensia, 99-10170

• Decision Date: 14 January 2000
• Docket Number: No. 99-10170,99-10170
• Citation: 222 F.3d 1173
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELIODORO VALENSIA, Defendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1173

222 F.3d 1173 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELIODORO VALENSIA, Defendant-Appellant.

No. 99-10170

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted January 14, 2000--San Francisco, California

Vacated January 26, 2000

Resubmitted July 3, 2000

Filed August 1, 2000

[Copyrighted Material Omitted] Patience Milrod, Law Office of Patience Milrod, Fresno, California, for the defendant-appellant.

William L. Shipley, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California, D.C. No. CR-97-05114-OWW; Oliver W. Wanger, District Judge, Presiding

Before: Arthur L. Alarcon, A. Wallace Tashima, and Barry G. Silverman, Circuit Judges.

ALARCON, Circuit Judge:

Eliodoro Valensia appeals from the sentence imposed by the district court following his plea of guilty to conspiracy to distribute methamphetamine and to conspiracy to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. SS 841(a) and 846. The district court imposed a two-level enhancement pursuant to S 3B1.1(c) of the United States Sentencing Guidelines ("U.S.S.G.") for Valensia's role as a manager or supervisor in the conspiracy, and it imposed a two-level enhancement pursuant to U.S.S.G. S 2D1.1(b)(1) for the possession of a firearm in the course of the conspiracy. Valensia contends that the district court should have applied a clear and convincing evidence standard in assessing the enhancements on the ground that the enhancements had an extremely disproportionate effect on the length of his sentence. He also contends that the evidence offered in support of the enhancements failed to satisfy even the preponderance of evidence standard because it consisted of "inherently unreliable" hearsay statements.

We have jurisdiction pursuant to 18 U.S.C. S 3742(a). We hold that the district court did not err in applying the preponderance of the evidence standard in making its factual determinations because the contested enhancements, based on uncharged acts or conduct, did not have an extremely disproportionate effect on the length of Valensia's sentence. We affirm the sentence imposed by the district court, because we conclude that the hearsay statements offered by the Government during the sentencing proceedings were accompanied by sufficient indicia of reliability.

I

On July 12, 1996, the Fresno County Sheriff's Department received a tip from an informant that an active methamphetamine laboratory was in operation at 6291 East Clarkson Avenue in Selma, California. Law enforcement officers obtained a warrant and searched the location. There, they discovered a laboratory that was manufacturing approximately seventy pounds of methamphetamine. They also found several loaded firearms, including an AK 47-style assault rifle and a .380 caliber handgun, which were located inside a mobile home adjacent to the laboratory. Raymond Davis, Jose Arzate, and Roberto Mora were arrested at the scene. Valensia, who was not present during the raid, was not arrested.

On October 14, 1996, the Fresno County Sheriff's Department received a tip from an informant that Valensia was in the process of manufacturing methamphetamine in an apartment at 1614 East Myrtle Avenue in Reedley, California. Law enforcement officers served a search warrant and entered the premises, where they discovered six pounds of finished methamphetamine and five pounds of methamphetamine in solution. Valensia was present during the raid and arrested. When he was arrested, Valensia was carrying a pager.

On May 1, 1997, the United States Attorney for the Eastern District of California charged Valensia with conspiracy to distribute methamphetamine and with conspiracy to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. SS 841(a) and 846. On September 28, 1998, Valensia entered a plea of guilty to these charges. During the plea proceedings, he admitted obtaining chemicals for the production of methamphetamine, attempting to manufacture methamphetamine at the Clarkson laboratory site, and transporting chemicals and equipment to the Myrtle laboratory site.

After interviewing Valensia, a probation officer recommended that he be given a three-level reduction in sentence pursuant to U.S.S.G. S 3E1.¹ for accepting responsibility for his involvement in the drug conspiracy. The probation officer also recommended, however, that Valensia be given a twolevel enhancement pursuant to U.S.S.G. S 3B1.1(c)1 for his role as a manager or supervisor of the drug conspiracy, and a two-level enhancement pursuant to U.S.S.G. S 2D1.1(b)(1)² for the possession of a weapon during the course of the conspiracy.

Valensia objected to the factual findings regarding the two proposed enhancements. In response, the United States requested an opportunity to present evidence regarding whether Valensia played an aggravating role in the conspiracy and whether he could foresee that weapons would be possessed at the Clarkson location. The district court heard testimony on both issues from two Government witnesses, Detective Richard Lyons and Detective Brent Wood, of the Fresno County Sheriff's Department.

Detective Lyons participated in both the initial search of the Clarkson laboratory site and the investigation of additional suspects who were believed to be involved in the manufacture of methamphetamine, but who were not arrested during the raid. Detective Lyons testified that Raymond Davis, who resided at the Clarkson address at the time of his arrest, informed him that a person named "Lalo" or "Lolo" was the organizer of the Clarkson laboratory. Detective Lyons testified that Davis positively identified Valensia from a photograph as the person named "Lalo" or "Lolo. " Davis also admitted accepting a total of $4,500 from Valensia in exchange for allowing him to use the location to manufacture methamphetamine in June or July of 1996, and on a second occasion beginning on July 11, 1996.

Detective Wood testified that he interviewed Jose Arzate following the July 12, 1996 raid of the Clarkson laboratory site. Arzate identified Valensia from a photo lineup as the person responsible for the Clarkson laboratory site. Arzate referred to Valensia as "Lolo." Arzate also informed Detective Wood that Valensia had offered him $3,000 to find a suitable location for manufacturing methamphetamine. Arzate further stated that Valensia and several Hispanic males unloaded laboratory equipment at the Clarkson property. Valensia began the process of manufacturing methamphetamine at the Clarkson laboratory site, and remained there after the chemical process started.

Detective Wood also testified that he interviewed Roberto Mora, Valensia's nephew. Mora informed Detective Wood that he had assisted Valensia in manufacturing methamphetamine at the Clarkson laboratory site. Mora observed Valensia add a different type of freon to the chemical solution to improve its yield. On the day of Mora's arrest, Valensia came to the Clarkson laboratory site, added ice to large plastic barrels used in the manufacturing process, and then left the location, stating that he would return later. Detective Wood testified that, based on his knowledge and experience, Valensia's conduct, as described by Mora, was indicative of a person who is responsible for operating a methamphetamine laboratory.

Detective Wood also testified that he examined telephone records from locations believed to be involved in the drug conspiracy. These records reflected that telephone calls were placed from several of the locations believed to be involved in the conspiracy to Valensia's residence and to his pager.

The district court applied the preponderance of the evidence standard and, based on the statements of his coconspirators, found that Valensia was the manager or supervisor of the drug conspiracy. The district court imposed a two-level enhancement for his role in the offense pursuant to U.S.S.G. S 3B1.1(c). The district court also found that, given his role in the conspiracy, Valensia "had to have knowledge" of the weapons that were seized at the Clarkson laboratory, and imposed a two-level enhancement pursuant to U.S.S.G. S 2D1.1(b)(1). The district court granted Valensia a threelevel downward adjustment for his acceptance of responsibility and sentenced him to imprisonment of 262 months. Had it not been for the two contested enhancements, Valensia's sentence would have ranged from 168-210 months.

II

Valensia contends that the district court erred in failing to apply the clear and convincing evidence standard in determining whether he played a managerial role in the conspiracy alleged in the indictment and was responsible for possessing a firearm during the commission of that offense. He also seeks reversal of the district court's sentencing decision on the ground that the district court erred in relying on inherently unreliable hearsay statements in enhancing his sentence.

We review de novo the constitutionality of a sentence. See United States v. Mezas de Jesus, 217 F.3d 638 (9th Cir. June 16, 2000)."Because due process protects a defendant's interest in fair sentencing, we review the district court's application of the standard of proof at sentencing for harmless error beyond a reasonable doubt." Id. at 642.

In United States v. Restrepo, 946 F.2d 654 (9th Cir. 1991) (en banc) (Restrepo II), we held that due process is generally satisfied when a district court uses the preponderance of the evidence standard in making findings in sentencing proceedings. Id. at 661. In that case, Restrepo was charged in count I and count II of the indictment with distributing cocaine. See United States v. Restrepo, 903 F.2d 648, 650 (9th Cir. 1990) (Restrepo I). Judith De Maldonado, a codefendant, was also charged in count II. See id. In addition, she was charged...