U.S. v. Young

• Decision Date: 28 December 1992
• Docket Number: 91-8555 and 91-8556,Nos. 91-8554,s. 91-8554
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott Lee YOUNG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Charles ALLMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Allen CROW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 180

981 F.2d 180

UNITED STATES of America, Plaintiff-Appellee, v. Scott Lee YOUNG, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Donald Charles ALLMAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Allen CROW, Defendant-Appellant.

Nos. 91-8554, 91-8555 and 91-8556.

United States Court of Appeals Fifth Circuit.

Dec. 28, 1992.

Rehearing Denied in No. 91-8555

Jan. 27, 1993.

Rehearing and Rehearing En Banc

Denied in No. 91-8556

Feb. 5, 1993.

Pat Douglas, Grosebeck, Tex. (court-appointed), for defendant-appellant in No. 91-8554.

Mark L. Frazier, Richard L. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for the U.S.

Walter M. Reaves, Jr., West, Tex. (court appointed), for defendant-appellant in No. 91-8555.

Robert A. Canonico, Waco, Tex. (court appointed), for defendant-appellant in No. 91-8556.

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

Before JONES and 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 arrested and charged with possession of amphetamine ²; 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 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.

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, 925 F.2d 101, 103 (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". Id. at 103.

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, 954 F.2d 1005, 1011 (5th Cir.1992) (quoting United States v. Pearson, 910 F.2d 221, 223 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991)). This includes knowing "the maximum prison term and fine for the offense charged". Id. at 1012 (quoting United States v. Rivera, 898 F.2d 442, 447 (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, 954 F.2d at 1012. 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 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, 925 F.2d at 104. 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 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, 693 F.2d 412, 416 (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, 946 F.2d 362, 366 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1677, 118 L.Ed.2d 394 (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, 976 F.2d 235, 240 (5th Cir.1992) (ci...