U.S. v. Easterling, 90-6000

• Decision Date: 18 December 1990
• Docket Number: No. 90-6000,90-6000
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John David EASTERLING, a/k/a Donald Ray Doyle, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1073

921 F.2d 1073

3 Fed.Sent.R. 182

UNITED STATES of America, Plaintiff-Appellee, v. John David EASTERLING, a/k/a Donald Ray Doyle, Defendant-Appellant.

No. 90-6000.

United States Court of Appeals, Tenth Circuit.

Dec. 18, 1990.

Leslie M. Kaestner, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with her on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Michael McGuire, Oklahoma City, Okl., for defendant-appellant.

Before McKAY, SEYMOUR, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

On August 23, 1989, a seven-count indictment was returned against defendant-appellant, John David Easterling ("Easterling"), and co-defendant, Lisa Rosemary Thornton ("Thornton"). The indictment included charges of conspiracy to distribute methamphetamine, and numerous firearm violations. Easterling waived his right to a jury trial and entered into a plea agreement with the Government where he pled guilty to Count I of the Indictment, conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sec. 846, and guilty to Count I of the Information (to be filed the day of defendant's plea), use of a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). ¹ The district court accepted Easterling's plea and referred the matter to the United States Probation Office for preparation of a presentence investigation report.

Ultimately, two presentence reports were prepared in regard to Mr. Easterling. The initial report, dated November 7, 1989, provided offense conduct having a guideline range of six to twelve months. ² At the first sentencing hearing, however, the district court voiced its dissatisfaction with the presentence report, indicating that based on information it had received regarding the defendant, ³ it was not convinced the presentence report adequately reflected the seriousness of defendant's offense conduct. Without prejudging the validity of the information it had received, the court emphasized such information did exist and should have been included in the presentence report. At this time, the court specifically enunciated the items it would consider. Included in this inventory of factors was defendant's "distribution of drugs to minors" and his involvement in the distribution "of as much as four pounds of methamphetamine ... over a two year period of time." The court noted it would consider the information only to the extent it was found credible, after allowing defense counsel the opportunity to refute it.

The court continued sentencing to a later date ⁴ and requested the probation officer to "amend the presentence report to reflect those items which [the court had indicated] should be considered as a possible grounds for departure."

An amended presentence report was prepared by the probation officer indicating the offense conduct on Count I of the Indictment involved the distribution of 1,815.2 grams of methamphetamine (as opposed to .8 grams as set forth in the original presentence report) and .7 grams of amphetamine. The report also set forth the applicable guideline provision for this offense as Sec. 2D1.1 of the United States Sentencing Commission, Guidelines Manual ⁵ (Nov. 1989) ("U.S.S.G." or "Guidelines"). In accordance with the conversion table found in U.S.S.G Sec. 2D1.1(c), a base offense level of 30 was established, with a two level adjustment for the acceptance of responsibility resulting in a total offense level of 28. Based on this total offense level, and a criminal history category of I, the applicable range for Count I was determined to be seventy-eight to ninety-seven months imprisonment. The amended presentence report provided a Guidelines sentence of sixty months for the offense set forth in Count I of the Information, to run consecutively with any other sentence imposed.

At the second sentencing hearing, the court heard testimony from Agent Darrell Edwards of the Bureau of Alcohol, Tobacco and Firearms, and Kristine Disney of the Federal Probation Office. ⁶ The focus of the testimony was on how the Government had obtained the information used in determining the drug quantity in the amended presentence report, and the method of computation used in arriving at this quantity. After considering the testimony relating to these matters, the court overruled defense counsel's objections, ⁷ finding that based on the evidence presented there was adequate information to support the computation of drug quantity used in the amended report. The court emphasized that the amounts listed in the report actually represented a minimum quantity in that the distribution of drugs to minors and to co-defendant, Thornton, were not included in the calculation.

Prior to imposing sentence, the court again inquired as to whether defendant wished to withdraw his plea. Defense counsel responded to this inquiry in the negative. The court ruled it would therefore sustain defendant's motion to enforce the plea agreement in that he would consider defendant's cooperation and "give him credit for ... the area in which he did cooperate." Under Count I of the Indictment, defendant was sentenced to ninety months imprisonment (the Guidelines range was seventy-eight to ninety-seven months) followed by a period of three years supervised release. Under Count I of the Information, defendant was sentenced to five years imprisonment (the Guidelines range was sixty months) to run consecutively with the sentence imposed under the indictment. Pursuant to the plea agreement, the remaining counts against Easterling were dismissed at the time of his sentencing.

Defendant appeals his sentence claiming: (1) the district court erred "in its upward departure under the sentencing guidelines concerning the amount of drugs and firearms allegedly distributed and possessed by the Defendant"; (2) "the government breached the plea agreement"; and (3) the district court erred "in failing to consider mitigating circumstances."

DISCUSSION

Defendant first contends the district court erred by its "upward departure" ⁸ from the recommended sentencing range provided by the Guidelines, advancing two grounds in support of this contention. First, defendant argues that the drug computations of the Government and probation officer were improperly relied on by the district court in that the figures were based on estimates "lack[ing] ... any articulable basis." Second, defendant argues that the drug quantity information was improperly obtained through the overreaching of the probation officer, which violated defendant's constitutional rights.

Defendant's contentions regarding the method of obtaining the information used in calculating the drug quantity used in the amended presentence report, and the basis of that calculation, are without merit. The district court made express findings regarding the origin of the drug quantity information, as well as the probation officer's use of estimates in calculating the amount. Thus, Easterling is in effect challenging the court's factual determinations regarding this matter.

We review a sentencing court's factual determinations under a clearly erroneous standard, United States v. Lord, 907 F.2d 1028, 1031 (10th Cir.1990); United States v. Roberts, 898 F.2d 1465, 1469 (10th Cir.1990), and "afford due deference to the district court's application of the Guidelines to the facts." United States v. Boyd, 901 F.2d 842, 845 (10th Cir.1990). Therefore, we will not disturb a factual finding of the district court "unless the court's finding was without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made." United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990). This court has also recently held that "the quantum of proof required for factual determinations under the Sentencing Guidelines is a preponderance of the evidence...." United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.) (citing United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir.1990)), cert. denied, --- U.S. ----, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990).

Defendant's contention that the district court erred in accepting the calculations of the probation officer is insupportable in light of the record and applicable case law. Defendant argues that the probation officer improperly based its calculations of the drug quantities in the amended presentence report on "estimates conceived by interrogated targets of the investigation in this case" and that such calculation lacked "any articulable basis."

This court has recently held that the use of estimates is an acceptable method of calculating drug quantities as long as the information upon which the estimates are based has a " 'minimum indicia of reliability.' " United States v. Davis, 912 F.2d 1210, 1214 (10th Cir.1990) (quoting United States v. Jones, 640 F.2d 284, 286 (10th Cir.1981)). In this case, the probation officer testified as to the basis of the offense level computation that she provided in the amended presentence report. It was her testimony that two individuals, both adults, who were interviewed by Agent Darrell Edwards of the Bureau of Alcohol, Tobacco and Firearms, made statements that they had purchased methamphetamines from Easterling on many occasions. Both individuals estimated the total amount of these purchases at approximately two pounds each. Accordingly, Ms. Disney used these estimated amounts (an aggregate amount of four pounds), and added the amount seized at the time of Easterling's arrest, which was .8 grams, to arrive at the quantity listed in the amended presentence report. ⁹ This method of calculation is supported It should also be noted that in her testimony, Ms. Disney stated that she had been aware of the information used in computing the guideline range in the amended presentence report prior to her preparation of the initial presentence report. Ms....