U.S. v. Hendricks
| Decision Date | 10 March 1992 |
| Docket Number | No. 91-5796,91-5796 |
| Citation | 956 F.2d 1164 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. George G. HENDRICKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before NATHANIEL R. JONES and MILBURN, Circuit Judges, and ENGEL, Senior Circuit Judge.
Defendant-appellant George Garland Hendricks appeals from the sentence he received following his guilty plea to a one-count indictment charging distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). The issues on appeal are: (1) whether the district court's factual finding that defendant distributed fifteen ounces of cocaine during early 1988 is supported by the evidence, (2) whether the defendant's sales of fifteen ounces of cocaine in 1988 constitute "relevant conduct" within the meaning of United States Sentencing Guideline ("U.S.S.G.") § 1B1.3, (3) whether the United States Sentencing Commission exceeded the authority granted to it by Congress when it promulgated U.S.S.G. § 1B1.3, and (4) whether U.S.S.G. § 1B1.3, as applied by this court, is in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution. For the reasons that follow, we affirm.
The facts in this case are not complex. On October 29, 1990, defendant Hendricks entered a plea of guilty to a one-count indictment charging him with distributing cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1). The alleged sale, which occurred on August 29, 1989, involved one ounce of cocaine.
After the preparation of the presentence report, the district court conducted a sentencing hearing on February 4, 1991, at which the government sought to prove that defendant distributed, or caused the distribution of, an additional fifteen ounces of cocaine to Jeff Shipley, the same person to whom the sale mentioned in the indictment was allegedly made. Shipley, called as a witness for the government, testified that defendant and Bobby Frank Andrews, both federal prisoners at the Midway Rehabilitation Center in Knoxville, Tennessee, were distributing cocaine from that institution. Initially, defendant supplied Andrews with cocaine, which Andrews distributed to Shipley in ounce quantities. Shipley testified that, during the first four months of 1988, defendant provided him, either directly or through Andrews, with between fifteen and twenty ounces of cocaine.
Mark Dovar, who had also been a resident of Midway Rehabilitation Center during early 1988, testified as a defense witness that Shipley obtained cocaine from an inmate named Manuel, not from the defendant. Bobby Frank Andrews testified that he never sold cocaine to Shipley and that he never saw defendant do so. He did, however, see Shipley with Manuel on occasion. Defendant Hendricks testified in his own behalf and denied the 1988 cocaine sales to Shipley.
The government corroborated Shipley's testimony in part by offering evidence that FBI intercepts of pages received by Shipley's digital pager in early 1988 showed contact between Hendricks and Shipley. The contacts occurred in early 1988 during the time when Hendricks was an inmate in the Midway Rehabilitation Center and was allegedly selling cocaine to Shipley. Furthermore, beginning sometime in October 1988, after he agreed to cooperate with authorities, Shipley informed FBI agents that he owed Hendricks between $5,000 and $6,000 for cocaine previously delivered to him. Pursuant to the instructions of FBI agents, Shipley began wearing a tape recorder in meetings with Hendricks, and the tape recorded conversations between Shipley and Hendricks supported the conclusion that Shipley was paying Hendricks for cocaine previously received.
After the lengthy sentencing hearing, the district court found that defendant had engaged in the 1988 cocaine sales to Shipley and that these sales amounted to an additional 425 grams of cocaine. Under U.S.S.G. § 2D1.1, the additional sales raised defendant's guideline range from twenty-one to twenty-seven months to a range of sixty-three to seventy-eight months. The court sentenced defendant to a term of imprisonment of seventy-eight months and imposed a term of three years supervised release. This timely appeal followed.
Defendant Hendricks argues that the proof presented by the government concerning the 1988 sales by defendant to Shipley was not reliable enough to warrant the increased sentence given him. Therefore, he argues, the district court committed clear error in making the factual findings that defendant sold approximately 425 grams of cocaine to Shipley in 1988.
The scope of review applicable to this case is found in 18 U.S.C. § 3742(e), which provides:
The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.
As defendant argues, there is a level of reliability below which a district court may not go when it determines the relevant facts applicable to sentencing.
In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has "sufficient indicia of reliability to support its probable accuracy." 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." Unreliable allegations shall not be considered.
U.S.S.G. § 6A1.3, comment. (citations omitted). As this court has put it,
[w]e note that due process requires that some evidentiary basis beyond mere allegation in an indictment be presented to support consideration of such conduct as relevant to sentencing.
United States v. Smith, 887 F.2d 104, 108 (6th Cir.1989) (emphasis in original).
The thrust of defendant's argument on the reliability question is that Shipley, the government's main witness, cannot be believed because of his extensive criminal record and because his testimony is improbable. Unfortunately for the defendant, his criminal record, and the criminal record of his chief supporting witness, Bobby Frank Andrews, is as discrediting as Shipley's. The defendant's felony criminal record dates back to 1958. Andrews has an extensive criminal history involving convictions for counterfeiting, receiving and concealing stolen property, assault and battery with intent to kill, and distributing cocaine. Thus, although Shipley's credibility was open to question, defendant's testimony must be weighed with care because of his obvious self-interest and criminal record. Moreover, while defendant's testimony is bolstered by Andrews' testimony, Shipley's testimony is supported by the evidence of 1988 pager traffic between Hendricks and Shipley and by the tape recorded conversations between the two men concerning Shipley's payments for previous drug transactions.
As earlier stated, Mark Dovar, another resident of the Midway Rehabilitation Center, testified that, in 1988, Shipley obtained his cocaine not from the defendant, but from another half-way house resident, Manuel. Although this testimony does support the position of the defendant that Manuel was Shipley's supplier in 1988, it does not account for the pager contacts between defendant and Shipley and does not explain Shipley's payments to defendant on what might be interpreted as a previous account.
Defendant also argues that it is unlikely that Shipley's testimony is true because, from October 1988, when Shipley began cooperating with the FBI, to August 29, 1989, when defendant sold Shipley the ounce of cocaine mentioned in the indictment, Shipley met with defendant at least twenty-nine times and only one cocaine transaction resulted. Defendant argues that this fact makes it improbable that Shipley could have bought, or defendant delivered, the 15 ounces allegedly transferred in 1988.
The district court was confronted with a swearing match between convicted criminals. The testimony of three of those criminals, viz., defendant, Andrews, and Dovar, was unsubstantiated except insofar as the three men agreed with each other. On the other hand, Shipley was a cooperating government witness whose testimony was substantiated to some degree by the tape recordings he made and by independently obtained evidence of his pager contacts. Under these circumstances, the district court committed no clear error in crediting Shipley's testimony over that of the defendant and his witnesses.
This court must give "due regard to the opportunity of the district court to judge the credibility of the witnesses ...," 18 U.S.C. § 3742(e), and it must accept the facts found by the court unless they are clearly erroneous. The district court specifically found Shipley to be a credible witness in this case, and its remarks indicate that it carefully considered all of the factors necessarily to a resolution of the issues before it. If Shipley is a credible witness, as the district court found, then there is reliable proof of the 1988 drug transactions.
Defendant Hendricks also argues that the district court erred in its application of the Guidelines to the facts in this case. Specifically, defendant contends that the fifteen ounces of cocaine he allegedly sold to Shipley in 1988 were not part of the "same course of conduct" as the offense for which defendant was convicted and thus could not be included under U.S.S.G. § 1B1.3 in the sentencing computations. 1
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