FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE.NANCY TORRESEN, U.S. DISTRICT JUDGE
M. Merrill on brief for defendant-appellant.
B. Frank, United States Attorney, and Benjamin M. Block,
Assistant United States Attorney, on brief for appellee.
Thompson, Circuit Judge, Souter, Associate Justice,
and Selya, Circuit Judge.
THOMPSON, CIRCUIT JUDGE.
appeal comes from a district court's imposition of a
218-month sentence on Mario Lee for conspiracy to distribute
and possession with intent to distribute 100 grams or more of
a mixture or substance containing heroin in violation of 21
U.S.C. §§ 841(a)(1) and 846. Lee only attacks his
sentence as procedurally unreasonable. Concluding, as we do,
that the district court did not commit any error, we affirm.
February 7, 2014, Mario Lee was released from prison in New
York, having been convicted for selling crack cocaine to an
undercover police officer. Within months of his release,
federal and state law enforcement in Maine discovered that
Lee was participating in an ongoing conspiracy to distribute
heroin there. Lee would obtain heroin from outside Maine and
would transport it back to Maine to be distributed by himself
and others. On September 3, 2015, Lee was arrested. He was
charged with four counts of distribution of heroin, and one
count of conspiracy to distribute heroin. Facing a possible
life sentence, Lee pled guilty to one count of conspiracy to
distribute and possession with intent to distribute 100 grams
or more of a mixture or substance containing heroin, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. The
plea agreement struck by the government and Lee, due to
Lee's undisputed career offender status under U.S.S.G.
§ 4B1.1, had the effect of setting his guideline range
at 120 to 240 months.
Lee's sentencing, and in its sentencing memorandum, the
government presented and summarized evidence from its
investigation to support a 1.3 kilogram drug quantity
determination, as recommended by the PSR. This evidence
included the grand jury testimony or interviews of nine
witnesses who connected Lee to large quantities of
heroin. Lee objected to the drug quantity
estimates in the PSR based on the government's witness
statements. Unlike other cases where drug quantity
comes up as an issue, in this case the district court noted,
and counsel for the government and Lee agreed, that Lee's
PSR objections would not affect the guidelines calculations
because Lee's undisputed status as a career offender
under U.S.S.G. § 4B1.1 superseded those considerations.
However, the district court said that drug quantity could be
relevant to the actual sentence imposed under the 18 U.S.C.
§ 3553(a) factors.
Lee tell it, the witnesses' statements, which were not
subject to cross-examination in the grand jury or the
prosecutor's office, had inconsistencies. These
inconsistencies all amounted to arguing either that the
witnesses exaggerated the period of time they were acquainted
with Lee when he was selling heroin in Maine or the amount of
heroin the witnesses knew Lee had possessed. Lee concluded
that that made them too unreliable to be considered. While
noting these discrepancies, the district court found that the
witnesses' statements were credible, corroborating
locations, associates, and drugs connected to Lee, and
adopted the PSR's recommended 1.3 kilograms as the drug
quantity. The district court considered the drug quantity in
imposing Lee's 218-month sentence rather than a more
appeal, Lee complains only about the drug quantity the
district court attributed to him. According to Lee, SI-1,
SI-2, SI-3, SI-4, and SI-5, whose testimony supported the
PSR's drug quantity recommendation, were inherently
unreliable. Even worse, Lee says that considering these
unreliable statements would risk "double counting,
" incorrectly ballooning the drug amounts attributable
to him by considering the testimony of multiple witnesses
that could relate to the same drugs. To Lee, considering this
evidence despite the shortcomings he identified was
procedural sentencing error. As a part of his argument that
the witness statements are unreliable, Lee believes that the
witness statements are especially so because they are
out-of-court statements from either grand jury testimony or
proffer interviews with the government. Thus, Lee concludes,
if the district court had required the government to produce
these witnesses for live testimony at sentencing, as he
requested below, the district court could not have possibly
ensure that the sentence imposed by the district court was
"procedurally sound." United States v.
Dávila-González, 595 F.3d 42, 47 (1st Cir.
2010) (citing United States v. Martin, 520 F.3d 87,
92 (1st Cir. 2008)). A district court commits a procedural
error in sentencing if it "fail[s] to calculate (or
improperly calculate[s]) the Guidelines range, treat[s] the
Guidelines as mandatory, fail[s] to consider the §
3553(a) factors, select[s] a sentence based on clearly
erroneous facts, or fail[s] to adequately explain the chosen
sentence." Gall v. United States, 552 U.S. 38,
51 (2007). When making a drug quantity finding, the
sentencing court's responsibility is to "make
reasonable estimates of drug quantities, provided they are
supported by a preponderance of the evidence."
United States v. Mills, 710 F.3d 5, 15 (1st Cir.
2013). We review those estimates "deferentially,
reversing only for clear error." Id. We will
only find clear error when our review of the whole record
"form[s] a strong, unyielding belief that a mistake has
been made." Cumpiano v. Banco Santander P.R.,
902 F.2d 148, 152 (1st Cir. 1990).
supporting the drug quantity determination may be considered
regardless of its admissibility at trial, so long as it has
"sufficient indicia of reliability to support its
probable accuracy." U.S.S.G. § 6A1.3(a). The
sentencing court has a lot of discretion in deciding what
evidence is reliable enough to be considered for sentencing
purposes. See Mills, 710 F.3d at 15-16; United
States v. ...