                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                Oct. 15, 2009
                               No. 09-10597                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 05-00061-CR-3-LAC-MD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

BILLY RAY SCARLETT,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                               (October 15, 2009)

Before BLACK, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

     Billy Ray Scarlett appeals his 98-month sentence for conspiracy to distribute
and to possess with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C) and 846. He argues that the district court failed to make

specific findings of fact as to a cooperating codefendant’s credibility, which, in

Scarlett’s view, led the district court to increase the quantity of cocaine for which

he was accountable solely on the basis of the codefendant’s purportedly unreliable

trial testimony.

      A district court must begin the sentencing process by correctly calculating

the applicable guideline range. Gall v. United States, 552 U.S. 38, __, 128 S. Ct.

586, 596, 169 L. Ed.2d 445 (2007). We normally review a district court’s factual

findings for clear error. United States v. Foley, 508 F.3d 627, 632 (11th Cir.

2007). Where the defendant fails to articulate clearly the grounds for an objection

to the district court, we apply the plain error standard. See United States v.

Massey, 443 F.3d 814, 818 (11th Cir. 2006). To demonstrate plain error, the

defendant must show (1) an error that (2) is plain, (3) affects substantial rights, and

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776,

123 L. Ed.2d 508 (1993).

      Here, although Scarlett objected below to the credibility of Tyson’s

testimony and to the use of that testimony in determining the amount of cocaine, he



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did not object to the purported lack of specificity in the district court’s findings of

fact as to the quantity of drugs. Thus, we review for plain error Scarlett’s

argument that the district court failed to make the required specific findings of fact.

To the extent that he challenges the credibility determination itself, we review for

clear error.

       When a defendant challenges a fact in the PSI, the government’s burden of

proof is triggered, and the government “has the burden of establishing the disputed

fact by a preponderance of the evidence.” United States v. Lawrence, 47 F.3d

1559, 1566 (11th Cir. 1995). Thus, the government must “move forward with

evidence supporting its position,” and “the district court [must] resolve the dispute

by making appropriate findings of fact.” United States v. Butler, 41 F.3d 1435,

1446 (11th Cir. 1995). “The findings of fact of the sentencing court may be based

on evidence heard during trial, facts admitted by a defendant’s plea of guilty,

undisputed statements in the presentence report, or evidence presented at the

sentencing hearing.” United States v. Saunders, 318 F.3d 1257, 1271 n.22 (11th

Cir. 2003) (quotation marks and alteration omitted). The court may consider any

information regardless of its admissibility at trial, “provided that the evidence has

sufficient indicia of reliability, the court makes explicit findings of fact as to

credibility, and the defendant has an opportunity to rebut the evidence.” United



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States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005).

      “We accord great deference to the district court’s credibility

determinations.” United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir. 1999).

The district court’s perspective from having conducted both the trial and the

sentencing puts it in the best position to make credibility choices among various

pieces of testimony regarding, for example, the amount of drugs involved in a

conspiracy. See United States v. Alred, 144 F.3d 1405, 1417 (11th Cir. 1998).

“Where there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” United States v. Izquierdo, 448 F.3d

1269, 1278 (11th Cir. 2006) (quotation marks omitted).

      Scarlett objected vigorously to any reliance upon his codefendant’s

testimony and he presented impeachment evidence both at trial and at sentencing.

The district court found that other available evidence corroborated much of the

codefendant’s testimony and that it was unlikely that the codefendant only lied

with respect to the events for which he was the sole witness. The court also found

that the jury appeared to have accepted the codefendant’s testimony and that the

testimony was sufficient for sentencing purposes. Finally, the court found the

codefendant’s testimony with regard to the additional drug quantity to be

consistent with “the entire story” of the conspiracy. The district court’s findings of



                                           4
fact with respect to the codefendant’s credibility and reliability were not so

nonspecific as to be plainly erroneous. Furthermore, in light of the available

corroborating evidence, the codefendant’s explanation for his previous

contradictory statements, and the district court’s opportunity to observe the

codefendant throughout the proceedings, the court did not clearly err in choosing

between the two permissible views of his credibility.

      For the foregoing reasons, we affirm Scarlett’s sentence.

AFFIRMED.




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