                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-25-2007

USA v. Wynn
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4775




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Wynn" (2007). 2007 Decisions. Paper 1743.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1743


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 05-4775
                                     __________

                           UNITED STATES OF AMERICA

                                           v.

                                 ALONZO WYNN,
                                       Appellant
                                   __________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                         (D.C. Criminal No. 00-cr-00384-5)
                     District Judge: Honorable Robert B. Kugler
                                     __________

                    Submitted Under Third Circuit LAR 34.1(a)
                               November 28, 2006
                  Before: RENDELL and AMBRO, Circuit Judges,
                          and PRATTER*, District Judge

                               (Filed: January 25, 2007)
                                      __________

                             OPINION OF THE COURT
                                   __________

PRATTER, District Judge.

      Alonzo Wynn, who pled guilty to one count of conspiring to distribute and possess

__________________

   * Honorable Gene E.K. Pratter, Judge of the United States District Court for the
     Eastern District of Pennsylvania, sitting by designation.
with intent to distribute more than five kilograms of cocaine and more than 50 grams of

cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846,

again challenges the 210 month sentence imposed upon him. Specifically, Mr. Wynn

challenges the sentencing court’s consideration of his managerial or supervisory role in

the criminal activity to enhance the computation of his applicable offense level. Mr.

Wynn also contends that the District Court failed to consider all appropriate § 3553

factors, rendering the sentence imposed upon him unreasonable.

         Following Mr. Wynn’s guilty plea, District Court Judge Orlofsky found that Mr.

Wynn was a manager or supervisor of a criminal activity involving five or more

participants, thus warranting a three-level enhancement. However, Judge Orlofsky

granted the Government’s U.S.S.G. 5K1.1 motion for a downward departure based on

Mr. Wynn’s assistance and cooperation. Placed within a Sentencing Guidelines range of

210-262 months, Mr. Wynn was sentenced to 210 months, and Mr. Wynn appealed.

         This Court remanded the case to the District Court for re-sentencing in light of the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Appeal No.

02-2607, Order of June 15, 2005. After considering the testimony of Earl Wynn and

Kevin Daniels, Alonzo Wynn’s plea colloquy, the factors outlined in 18 U.S.C. § 3553(a),

and the Government’s motion for a downward departure, District Court Judge Kugler1 re-

sentenced Mr. Wynn to 210 months imprisonment. Mr. Wynn then brought this timely


  1
      Judge Orlofsky left the District Court in 2003, prior to the Court’s remand order.

                                               2
appeal. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742 2 , and we will

affirm.

          Mr. Wynn’s challenge to the imposition of an enhancement for his managerial or

supervisory role encompasses three sub-issues: (a) the appropriate burden of proof for

factual findings in sentencing; (b) whether such a finding, if made in substantial part on

the basis of hearsay, is “unreasonable” as defined in Booker, or otherwise violates the

Confrontation Clause of the Sixth Amendment; and (c) whether the District Court erred in

making such a finding.

          We review claims of legal error de novo. United States v. Pojilenko, 416 F.3d

243, 246 (3d Cir. 2005).

          Mr. Wynn proposes that the “Fifth and Sixth Amendments, including principles of

due process and confrontation, demand proof beyond a reasonable doubt of the facts that

would warrant this sentence.” Although Mr. Wynn also argues that this heightened

burden of proof is implicitly required by Booker, he concedes that the Booker majority

did not articulate an intention to alter the burden of proof.

          Post-Booker, this Court and others have held that facts pertinent to the Sentencing

Guidelines are to be determined by a preponderance of the evidence. Cooper, 437 F.3d at




  2
    The Government challenges this Court’s jurisdiction to accept an appeal of the
reasonableness of the sentence, but candidly admits to including this challenge ostensibly
to preserve the jurisdictional argument, notwithstanding this Court’s decision in United
States v. Cooper, 437 F.3d 324 (3d Cir. 2006).

                                               3
330; United States v. Miller, 417 F.3d 358, 362-63 (3d Cir. 2005); see also U.S. v. Mares,

402 F.3d 511, 519 (5th Cir. 2005) (holding sentencing facts need only be determined by a

preponderance of the evidence after Booker ); McReynolds v. United States, 397 F.3d

479, 481 (7th Cir. 2005) (same).3 Accordingly, we conclude that this prong to Mr.

Wynn’s appeal is without merit.

       Mr. Wynn’s challenge to the District Court’s consideration of hearsay at his

sentencing is an allegation of an error of law which the Court also reviews de novo.

Pojilenko, 416 F.3d at 246.

       A district court may rely on hearsay in sentencing determinations. Williams v.

State of Oklahoma, 358 U.S. 576, 584 (1959) (“The sentencing judge, in determining the

kind and extent of punishment to be imposed, is not restricted to evidence derived from

the examination and cross-examination of witnesses in open court.”); United States v.

Brigman, 350 F.3d 310, 315 (3d Cir. 2003) (“Hearsay is fully admissible at a sentencing

hearing, so long as it has sufficient indicia of reliability.”). The main constraint on

evidence introduced for sentencing purposes is that it must be reliable. Brigman, 350

F.3d at 315. Mr. Wynn contends that the District Court’s reliance on the testimony of his

co-conspirators violates the Confrontation Clause because he did not have an opportunity


  3
    The District Court here concluded that the evidence was sufficient under either
standard. Addressing Mr. Wynn’s concerns with respect to the post-Booker burden of
proof, the District Court responded, “I do think the evidence is clear to this court by
whatever standard . . . that he had some management responsibilities, and, therefore, the
sentence ought to reflect the fact that he had an important role in this drug conspiracy.”

                                              4
to cross examine them at the time they testified, and because the interests of the lawyers

cross-examining these witnesses in other proceedings were not aligned with Mr. Wynn’s

interests. The Government responds that Booker and Crawford did not alter the

prevailing view that the Confrontation Clause does not apply at sentencing.4

The issue presented here is whether, in light of Booker and Crawford v. Washington, 541

U.S. 36 (2004), the Confrontation Clause imposes an additional limit on the use of

hearsay in sentencing determinations. The Supreme Court has not addressed this question

directly.

              Our Court has, however, considered questions akin to these issues. In

United States v. McGlory, 968 F.2d 309, 347 (3d Cir. 1992), we held that the “Sixth

Amendment’s confrontation clause does not apply to sentencing hearings and reliable

hearsay is generally admissible.” Id. This is consistent with the holdings of the other




  4
    The Government acknowledges that the transcripts of Earl Wynn’s and Kevin
Daniel’s trial testimony constitute hearsay within the meaning of the Federal Rules of
Evidence because they were offered by the Government at the sentencing hearings for
their truth. See Fed. R. Evid. 801(c). The Government also concedes that Mr. Wynn did
not have an opportunity to cross-examine these witnesses when they testified at a co-
defendant’s trial, and, thus, the transcripts do not fall within the former testimony
exception. See Fed. R. Evid. 804(b)(1).

                                             5
courts of appeals that have addressed the issue. 5 We conclude that the sentencing court’s

consideration of hearsay did not run afoul of Mr. Wynn’s constitutional rights.

       Mr. Wynn also asserts that his sentence was unreasonable because it was based, in

part, on unreliable hearsay. This Court evaluates “reasonableness” in terms of whether

the District Court considered all of the factors and imposed the sentence for reasons

logical and consistent with those factors. See Cooper, 437 F.3d at 329-30.

       We have recognized that “the scope of what a trial court may consider in

determining an appropriate sentence is breathtakingly broad.” United States v.

Simmonds, 235 F.3d 826, 837 (3d Cir. 2000). In particular, a sentencing court may rely

on testimonial evidence from another proceeding so long as the defendant had a

meaningful opportunity to contest the evidence. United States v. Reynoso, 254 F.3d 467,

473-74 (3d Cir. 2001). However, before a sentencing court may rely on testimonial or


  5
     See United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005) (refusing to apply
Crawford to sentencing hearing); United States v. Luciano, 414 F.3d 174, 179 (1st Cir.
2005) (pointing out that Crawford concerned hearsay at trial and that it would not alter its
conclusion that “there is no Sixth Amendment Confrontation Clause right at sentencing”);
United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005), cert. denied, 126 S. Ct. 671
(2005) (explaining that the “relevant provision at sentencing is the due process clause, not
the confrontation clause,” because witnesses at sentencing are not accusers); United
States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005) (rejecting defendant’s invitation to
reconsider the applicability of the Confrontation Clause in light of Crawford); United
States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005), cert. denied, 127 S. Ct. 129 (2006)
(“[B]ecause Crawford was concerned only with testimonial evidence at trial, Crawford
does not change our long-settled rule that the Confrontation Clause does not apply in
sentencing proceedings.”); United States v. Brown, 430 F.3d 942, 943-44 (8th Cir. 2005)
(noting that Crawford “does not alter the pre-Crawford law that the admission of hearsay
testimony at sentencing does not violate confrontation rights”).

                                             6
other evidence from another proceeding, the defendant and the Government must be

notified of that anticipated consideration with some specificity. Id. at 474.

       Mr. Wynn does not claim lack of notice or opportunity;6 rather, he asserts that the

testimony of his co-conspirators is unreliable because in the trial in which they testified

neither of them had any motivation or incentive to challenge testimony accentuating Mr.

Wynn’s role or to give testimony about its marginality. The Government counters that

even though Mr. Wynn did not cross examine these witnesses, their testimony had other

traditional indicia of reliability, namely, both testified under oath in a formal proceeding,

and the trial court judge, who observed their demeanor and heard their testimony, found it

reliable. Presented with no reason to second-guess the District Court, we will not criticize

its consideration of that testimony for purposes of sentencing.

       The determination of a defendant’s managerial or supervisory role “is essentially

factual in nature” and, therefore, this Court “will reverse the findings of the district court

only for clear error.” United States v. Hunter, 52 F.3d 489, 492 (3d Cir. 1995) (citing

United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir. 1989)).

       The Sentencing Guidelines do not specifically define the term “manager or

supervisor” in § 3B1.1(b),7 but “the direction and control of others is a recurrent theme in

  6
    At both his initial sentencing and his re-sentencing, Mr. Wynn had an opportunity to,
and did, contest the testimony that he now challenges.
  7
    Mr. Wynn cites the factors enumerated in the Guidelines Application Notes, but these
are not criteria for a managerial/supervisory adjustment. Rather, pursuant to the precise
language of the Guidelines commentary, courts should consider these factors “[i]n

                                               7
legal definitions of the terms ‘manager’ and ‘supervisor.’” United States v. Felton, 55

F.3d 861, 865 (3d Cir.1995). “[T]o be a supervisor, there must be some degree of control

over others involved in the commission of the offense,” with the defendant occupying an

“active supervisory role in the actual criminal conduct of others.” United States v.

DeGovanni, 104 F.3d 43, 46 (3d Cir. 1997). Accordingly, enhancement is appropriate

where the defendant directed and controlled at least one other person. United States v.

Bethancourt, 65 F.3d 1074, 1081 (3d Cir. 1995).

       Here, the District Court found that Mr. Wynn directed or controlled the actions of

at least one criminal participant, basing that conclusion on the testimony of his co-

conspirators and on Mr. Wynn’s own plea colloquy. One co-conspirator, Mr. Wynn’s

own brother, testified that Mr. Wynn, along with another defendant, was responsible “for

determining if there were enough people working on the set to sell crack cocaine;” “for

determining how much money the people selling on the set got paid for their service;”

“for finding . . . lookouts;” and (with others) “for shutting down the set if there were too

many police in the area.” He also testified that when he “moved up,” the other defendant




distinguishing a leadership and organizational role from one of mere management or
supervision.” See U.S.S.G. § 3B1.1, Commentary n.4. Here, the issue is whether Mr.
Wynn participated in a managerial or supervisory role, not whether he had a leadership
role. This Court, however, has used these factors generally in determining whether to
apply an “aggravating role enhancement.” See, e.g., United States v. Hunter, 52 F.3d
489, 492 (3d Cir. 1995). It was not improper for the District Court to do likewise here.


                                              8
“supervised the corner, he made sure everybody was there, him along with my brother

Alonzo.” (emphasis supplied).

       Yet another co-conspirator testified that if the others were not around, “Alonzo

[would] take over the set and watch it and he had people out there selling for him too.”

After the cocaine was converted into crack cocaine, Mr. Wynn distributed his share to

“who[m]ever he had working for him at that time.” Mr. Wynn admitted in his plea

colloquy that he agreed with his brother to purchase and distribute more than 50 grams of

crack cocaine but did not make any specific statement acknowledging a supervisory or

management role. The Government concludes that this testimony provides a “credible

evidentiary basis” for finding by a preponderance of the evidence that Mr. Wynn acted as

a manager or supervisor and that Mr. Wynn cannot demonstrate that the District Court

clearly erred in its finding.8 See United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997).

       Mr. Wynn responds that his brother emphasized that his managers “had to be

trustworthy,” but testified that Alonzo Wynn was “not responsible” and that the other co-

conspirator was “more trustworthy” than Alonzo. This testimony, Mr. Wynn argues,

shows that he was never given any responsibility within the organization and could not

have controlled others. Mr. Wynn also claims that the District Court confused or

incorporated the issue of drug quantity with degree of involvement as a




  8
   Mr. Wynn does not contest that the activity in question involved participation in a
drug distribution conspiracy involving five or more participants.

                                             9
manager/supervisor. Explaining its finding that Mr. Wynn had “an important role,” the

District Court stated that Mr. Wynn was “not a bag or street level dealer” and that “he

was involved in a very serious drug operation,” even though, as the District Court

acknowledged, the volume of drugs handled does not necessarily correspond to an

individual’s level of responsibility.

       As a reviewing court, we generally owe great deference to the credibility

determinations of the trial court. United States v. Brothers, 75 F.3d 845, 853 (3d Cir.

1996). To the extent the District Court chose to credit the testimony of the co-

conspirators over that of Alonzo Wynn, we see no clear error. Rather, the evidence is

sufficient to support a finding by a preponderance of the evidence that Mr. Wynn had a

supervisory and/or managerial role.

       The final issue Mr. Wynn raises on appeal is whether the District Court properly

considered all of the statutory factors and whether the sentence was reasonable.

Specifically, Mr. Wynn contends that the District Court did not properly weigh and

analyze the factor of sentencing disparity pursuant to 18 U.S.C. § 3553(a)(6).

       In Booker, the Supreme Court stated that the standard of review for sentencing

decisions was review for reasonableness. Booker, 543 U.S. at 261. As the party

challenging the sentence, Mr. Wynn bears the burden of establishing that the sentence is

unreasonable. Cooper, 437 F.3d at 332.




                                            10
       To determine if the District Court acted reasonably in imposing a sentence, we

must first be satisfied the District Court exercised its discretion by considering the

relevant factors. Cooper, 437 F.3d at 329. The record must demonstrate the sentencing

court gave meaningful consideration to the § 3553(a) factors, but need not discuss and

make findings as to each factor if the record makes clear that the court took the factors

into account. Id.

       As a threshold matter, the record here is clear that the District Court considered

and took into account the need to avoid unwarranted sentencing disparities. The issue is

thus whether the application of the factors, and the resulting sentence, were reasonable.

       In addition to ensuring the trial court considered the § 3553(a) factors, we must

also “ascertain whether those factors were reasonably applied to the circumstances of the

case.” Cooper, 437 F.3d at 330. In doing so, this Court applies “a deferential standard”

since “the trial court is in the best position to determine the appropriate sentence in light

of the particular circumstances of the case.” Id. Thus, we, as the reviewing court,

evaluate only whether the sentencing court imposed the sentence “for reasons that are

logical and consistent with the factors set forth in section 3553(a).” Id.

       Mr. Wynn claims that the District Court failed to “make any meaningful analysis”

of the need to avoid sentencing disparity. Mr. Wynn draws our attention to the sentencing

results visited upon his brother. Specifically, in this case, Alonzo Wynn and his brother

both cooperated with the Government, had prior criminal convictions, and were found to



                                              11
have had an aggravated role in the criminal activity. The main difference between the

two is that Mr. Wynn’s brother testified at the trial of two other co-conspirators.

Although Alonzo Wynn “gave lengthy proffers to the Government,” and was prepared

and willing to testify at the other trial, the Government did not call him as a witness.

       At the time of Mr. Wynn’s re-sentencing, his brother had been sentenced to 100

months. The District Court sentenced Mr. Wynn to 210 months, the bottom of the

appropriate Guidelines range. The District Court recognized this “point of disparity”

between Mr. Wynn’s Guidelines sentence and the sentences of his co-conspirators,

including Mr. Wynn’s brother, but the District Court concluded, “I think it may well have

been as I assume that others had more important information and, therefore, got greater

breaks in sentencing than this defendant did.” The sentencing court also expressed

concern about Mr. Wynn’s prior criminal record, the seriousness of the crimes and their

impact on the community, and the likelihood that alternative sentences would not prove

successful. The District Court did observe that these factors were not materially different

from his brother’s circumstances.

       Under § 3553(a)(6) the sentencing court’s specific obligation is to avoid

unwarranted disparity, and the sentencing court must be afforded all appropriate

discretion to consider for itself such disparity as may be warranted. There is no

obligation upon a sentencing court to be tethered to the lowest - - or the highest - -

sentence meted out among a group of co-defendants. Indeed, if that were the operative



                                             12
analysis for avoiding unwarranted “disparity,” the array for comparison would be

decidedly too narrow and one of the important features of the Sentencing Guidelines

themselves - namely, melding a host of features relating to specific conduct, character and

background among others “similarly situated” to present a range of punishment - would

be for naught. A defendant who concentrates too hopefully, or too fearfully, upon the

sentence imposed upon the least severely punished, or the most severely punished, in a

group of co-defendants to be sentenced misapprehends both the role of the Guidelines and

the role of the “disparity” factor. This Court has previously held “a defendant cannot rely

upon § 3553(a)(6) to seek a reduced sentence designed to lessen disparity between co-

defendants’ sentences.” United States v. Parker, 462 F.3d 273, 277 (3 rd Cir. 2006). We

are satisfied that the District Court’s consideration of the disparity factor showed the

disparity here as warranted. Thus, we do not find any unreasonableness in this sentence

and will not disturb it.




                                             13
