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927 F2d 611 United States v. Beler

927 F.2d 611

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth Raven BELER, Defendant-Appellant.

No. 90-30243.

United States Court of Appeals, Ninth Circuit.

Submitted Mar. 1, 1991.*
Decided March 5, 1991.

Appeal from the United States District Court for the Western District of Washington, No. CR-88-299-JCC; John C. Coughenour, District Judge, Presiding.

W.D.Wash., [APPEAL AFTER REMAND FROM, 898 F.2d 705]

AFFIRMED.

Before FLETCHER, PREGERSON and TROTT, Circuit Judges.

1

MEMORANDUM**

2

Kenneth Beler appeals his sentence under the United States Sentencing Guidelines following his conviction by guilty plea for conspiracy to distribute a substance containing cocaine base in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), and 846. Beler was resentenced to 41 months imprisonment and 3 years supervised release, following remand by this court because the district court erred by basing Beler's original sentence on his unproven participation in 20 cocaine sales and by failing to find that those sales were in furtherance of the conspiracy to which Beler pleaded guilty. See United States v. Turner, 898 F.2d 705, 712-13 (9th Cir.), cert. denied, 110 S.Ct. 2574 (1990).

3

Beler contends that the district court erred when resentencing him by finding, based on co-defendant Larry Smith's hearsay statement, that Beler participated in three sales that were in furtherance of the conspiracy and involved a total of at least three ounces of cocaine base. Beler contends that the district court erred by considering the hearsay statement, by giving Beler insufficient opportunity to challenge it, and by failing to make a finding as to its reliability. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I. Consideration of Hearsay Statement

4

"In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information 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. Sec. 6A1.3(a); see also United States v. Restrepo, 903 F.2d 648, 654-55 (9th Cir.1990) (where uncharged acts are used to enhance a sentence, the government must prove a sufficient weight of evidence to convince a reasonable person of the probable existence of the enhancing factor), rehrg. granted, 912 F.2d 1568 (9th Cir.1990). "Reliable hearsay evidence may be considered." U.S.S.G. Sec. 6A1.3 comment.; United States v. Burns, 894 F.2d 334, 336-37 (9th Cir.1990) (per curiam).

5

Here, at the resentencing hearing, Assistant United States Attorney David Wilson testified that co-defendant Smith said he gave Beler one to one and one half ounces of crack cocaine to sell on at least three occasions from March through May 1988. Smith's statement was corroborated by the trial testimony of other co-conspirators and government informant Janice O'Cain, and by Beler's own statement, at the time of his guilty plea, that he participated in the conspiracy to sell cocaine base. This consistency with the statements of others constituted sufficient indicia of reliability to support the probable accuracy of Smith's statement. See U.S.S.G. Sec. 6A1.3(a); U.S.S.G. Sec. 6A1.3 comment.; Burns, 894 F.2d at 336-37. Accordingly, the district court did not err by relying on the statement.

6

II. Opportunity to Rebut Government's Evidence Supporting Hearsay Statement

7

"When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor." U.S.S.G. Sec. 6A1.3(a); United States v. Rigby, 896 F.2d 392, 394 (9th Cir.1990). Beler contends that the government may not argue that Smith's statement was corroborated by the trial testimony of other co-conspirators and O'Cain because the government did not present this testimony at the resentencing hearing, and so Beler had no opportunity to rebut it. At the resentencing hearing, Beler's attorney argued that Smith's testimony contradicted the testimony of other witnesses. Thus, Beler had adequate opportunity to present information as to whether Smith's statement was corroborated. Accordingly, Beler's contention lacks merit. See U.S.S.G. Sec. 6A1.3(a); Rigby, 896 F.2d at 394.

8

III. Finding as to Reliability of Hearsay Statement

9

The district court must clearly resolve on the record all disputed matters, and specific findings of fact are encouraged. Rigby, 896 F.2d at 394 (9th Cir.1990); see U.S.S.G. Sec. 6A1.3(b) (all disputed sentencing factors shall be resolved in accordance with Fed.R.Crim.P. 32(a)(1)). The district court's statement that it accepts the probation officer's report is a sufficiently specific finding of fact as to a sentencing factor, Rigby, 896 F.2d at 394, as is the district court's "simple statement" that a particular sentencing factor applies, United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989). Accordingly, the district court did not err by finding only that there was "a sufficient weight of evidence to convince a reasonable person of the probable existence of the facts upon which the Court relies," rather than finding more specifically that Smith's hearsay statement was reliable. See Rigby, 896 F.2d at 394; Sanchez-Lopez, 879 F.2d at 557.

10

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3