U.S. v. Burnett, 1192

• Decision Date: 30 June 1992
• Docket Number: D,No. 1192,1192
• Citation: 968 F.2d 278
• Parties: UNITED STATES of America, Appellee, v. Norman BURNETT, Defendant-Appellant. ocket 91-1666.
• Court: U.S. Court of Appeals — Second Circuit

Page 278

968 F.2d 278

UNITED STATES of America, Appellee, v. Norman BURNETT, Defendant-Appellant.

No. 1192, Docket 91-1666.

United States Court of Appeals, Second Circuit.

Argued April 28, 1992.

Decided June 30, 1992.

Norman R. Blais, Burlington, Vt. (Blais, Cain, Keller & Fowler, of counsel), for defendant-appellant.

Thomas D. Anderson, Asst. U.S. Atty., District of Vermont, Burlington, Vt. (Charles A. Caruso, U.S. Atty. for the District of Vermont, David V. Kirby, Chief, Criminal Div., of counsel), for appellee.

Before: TIMBERS, MESKILL and NEWMAN, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from a judgment of conviction entered in the United States District Court for the District of Vermont, Billings, J. Defendant-appellant Norman Burnett pleaded guilty to possession with intent to distribute marijuana in violation of 21 U.S.C. § 841. ¹ A conspiracy count was dismissed. On appeal Burnett challenges the inclusion, pursuant to United States Sentencing Guidelines (Guidelines) § 1B1.3, of 3 kilograms of cocaine as relevant conduct in calculating his base offense level.

According to a stipulation of facts made pursuant to the plea agreement, in December 1988 Burnett drove William Riley from Burlington, Vermont to the Trapp Family Lodge in Stowe, Vermont, waited inside the car while Riley met with individuals for approximately 15 or 20 minutes, and then drove Riley to the Backyard Cafe, also in Stowe. A few days later Burnett purchased a bale of marijuana from Riley.

In calculating Burnett's base offense level the presentence report included as relevant conduct both the bale of marijuana, which weighed 22 pounds, and 4 kilograms of cocaine supplied to Burnett by an individual named Dale Dubois. In an earlier paragraph the report totaled the amount of cocaine at 3 kilograms.

Burnett objected to the inclusion of any amount of cocaine in the calculation of his base offense level. The district court conducted an evidentiary hearing to resolve the issue and to clarify how many kilograms of cocaine had been sold. At the hearing the government called Dubois as a witness. Although his testimony was at times contradictory, Dubois testified that he had sold defendant 2 kilograms of cocaine in the summer of 1988 and a third kilogram in the fall of 1988. Burnett also testified at the hearing and denied that the sales had occurred.

The sentencing judge concluded that the government had established by a preponderance of the evidence that Burnett had purchased 3 kilograms of cocaine and added that amount to the 22 pounds of marijuana, which resulted in a base offense level of 28. The judge made certain adjustments, not relevant to this appeal, which resulted in an offense level of 24. He sentenced Burnett within the Guidelines range to 53 months imprisonment followed by 5 years conditional supervised release.

Burnett claims that the district court erred in its determination that, under Guidelines § 1B1.3(a)(2), 3 kilograms of cocaine should be included as relevant conduct in calculating his base offense level. Burnett contends that (1) the court's finding of his involvement with the 3 kilograms of cocaine was clearly erroneous because it was not supported by credible evidence and (2) there was insufficient evidence from which the court could find that the cocaine constituted relevant conduct.

Under the Guidelines a defendant's base offense level is determined based on "relevant conduct." See Guidelines § 1B1.3. "Relevant conduct" includes "acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Id. § 1B1.3(a)(2). The sentencing judge may include in his sentencing calculation quantities of narcotics that were not charged in the indictment. See United States v. Cousineau, 929 F.2d 64, 67 (2d Cir.1991). Unless they are clearly erroneous we must accept both the district court's determination that the alleged conduct involving the additional amounts of cocaine has been established by a preponderance of the evidence and its conclusion that such conduct was relevant conduct for sentencing purposes. See id.

We are not persuaded by Burnett's argument that the district court's factual finding that he had purchased 3 kilograms of cocaine is clearly erroneous. Burnett points to inconsistencies in Dubois' testimony in order to cast doubt on Dubois' credibility and argues that without corroborating evidence Dubois' testimony cannot be believed. Initially Dubois had stated that he sold defendant "[t]wo kilos, three kilos" of cocaine. On cross examination, redirect examination and recross examination, however, Dubois clarified his prior statement and insisted that he had distributed to defendant a total of 3 kilograms of cocaine--"[t]wo during the summer, one in the fall." The sentencing judge discredited Burnett's testimony denying that he received any cocaine, and, instead, credited the testimony of Dubois. We defer to a sentencing judge's credibility determinations, see id. at 67, and, therefore, we uphold the judge's factual finding that Dubois sold Burnett 3 kilograms of cocaine because it was properly supported by the evidence.

Burnett also contends that there was insufficient evidence from which the district court could find that the cocaine transactions were "relevant conduct" within the meaning of the Guidelines. He argues that there was no testimony that connected the Dubois cocaine transactions with the marijuana offense. Burnett misperceives the law in this area. "[W]e have repeatedly held that quantities and types of narcotics uncharged in the offense of conviction can be included in a defendant's base offense calculation if ...