                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1604




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-1604


                           UNITED STATES OF AMERICA

                                           v.

                                 ROBERT T. SCOTT,

                                                      Appellant




                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Criminal Action No. 04-cr-00024)
                      District Judge: Honorable Sylvia H. Rambo


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 7, 2006

                   Before: RENDELL and AMBRO, Circuit Judges,
                            and SHAPIRO,* District Judge

                            (Opinion filed April 27, 2006 )


                                       OPINION


AMBRO, Circuit Judge


      *
       Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       On August 10, 2004, Robert T. Scott pled guilty to one count of distribution of

cocaine and crack cocaine in violation of 21 U.S.C. § 841(a)(1). The District Court

sentenced Scott to 108 months imprisonment to be followed by three years of supervised

release. Scott filed a timely appeal from the final judgment of his sentence. For the

reasons provided below, we affirm.

                                             I.

       As we write only for the parties, who are familiar with the underlying facts, we set

out only those facts necessary to our analysis. As noted above, Scott pled guilty to

distribution of cocaine and crack cocaine and a presentence report was prepared.

Premised on its finding that Smith was responsible for the distribution of 36 kilograms of

cocaine and 1,163 grams of crack cocaine (i.e., 30,460 kilograms of marijuana

equivalent),1 the presentence report determined that his base offense level was 38. It

further recommended a two-level downward adjustment under U.S.S.G. § 5C1.2(a),

bringing Scott’s total offense level to 36, which, when combined with his criminal history

category, resulted in an advisory Guidelines range of 188 to 235 months imprisonment.

       Scott objected to the presentence report’s drug quantity calculation, arguing that,




       1
       The evidence that the presentence report relied on to establish drug quantity
included: sworn grand jury testimony regarding drug transactions involving Scott and co-
defendant, Sylburn Wallace, provided by a confidential informant; sales of drugs
involving Scott and Wallace to undercover officers; and purported admissions regarding
drug quantities by Scott to law enforcement officers subsequent to his arrest.

                                             2
due to the Blakely waiver in his plea agreement,2 the Government needed to prove the

drug quantity amounts at sentencing beyond a reasonable doubt. Scott also noted that, at

the time of his guilty plea, the District Court indicated that it did not expect hearsay

evidence from the Government concerning the drug quantities involved in the offense

conduct. In its orders scheduling the sentencing hearing, the District Court directed that

no hearsay would be admitted. The Government filed a motion for reconsideration of that

directive, contending that the use of hearsay at sentencing to establish drug quantity is

permissible so long as the hearsay is not inherently unreliable under 18 U.S.C. § 3661,

U.S.S.G. § 6A1.3, and Third Circuit caselaw. At the February 23, 2005 sentencing

hearing, the Court ruled that the only hearsay evidence it would entertain was the sworn

grand jury testimony of the confidential informant.

       The District Court’s limitation on the Government’s evidence at sentencing

resulted in a reduction of the drug quantity finding from 30,460 kilograms to 25,340

kilograms of marijuana equivalent and, thus, a reduction of Scott’s base offense level

from 38 to 36. The Court also applied a two-level downward adjustment under §



       2
        In his Blakely jury trial waiver, Scott crossed out the words “by a preponderance
of the evidence” and “including hearsay” from the following sentence: “I further agree
that any legal and factual issues relating to the application of the Federal Sentencing
Guidelines to my conduct, including any fact that supports a specific offense
characteristic or other enhancement or adjustment and the appropriate sentence within the
statutory maximums provided for by law, will be determined by the court by a
preponderance of the evidence at a sentencing hearing; the Federal Rules of Evidence,
other than with respect to privileges, shall not apply under Fed. R. Evid. 1101(d)(3), and
the court may consider any reliable evidence, including hearsay.”

                                              3
5C1.2(a) (safety valve) and a three-level downward adjustment under § 3E1.1 (acceptance

of responsibility), bringing the total offense level to 31. That offense level, combined

with Scott’s criminal history category of I, resulted in an advisory Guidelines range of

108 to 135 months. The District Court sentenced Scott at the bottom of that range to 108

months incarceration. This appeal followed.

                                              II.

       Scott contends that he is entitled to re-sentencing because the District Court failed

to apply the beyond a reasonable doubt standard at his sentencing hearing. Specifically,

he maintains that, because his is a “transition case” (i.e., a case in which the guilty plea

was entered before–but sentencing occurred after–the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005)), the Booker remedy of an advisory Guidelines

scheme was unforeseeable when he pled guilty and, therefore, it cannot be applied to him

without violating his due process rights or the Ex Post Facto Clause of the Constitution.

This contention, however, is foreclosed by a recent decision, also involving a “transition

case,” in which we held that “[a]s before Booker, the standard of proof under the

guidelines for sentencing facts continues to be preponderance of the evidence.” United

States v. Cooper, No. 05-1447, —F.3d—, 2006 WL 330324, at *4 (3d Cir. Feb. 14,

2006). Moreover, Booker itself expressly states that its holdings, including its remedial

holding, apply to all cases on direct review. 543 U.S. at 268. Thus, it was not an

infringement of Scott’s due process rights or a violation of the Ex Post Facto Clause for



                                               4
the District Court to impose a sentence based on facts found by a preponderance of the

evidence.

       Scott next claims that the District Court erred by relying on the Government’s

hearsay evidence in its calculation of the quantity of drugs involved for sentencing

purposes. “The use of hearsay in making findings for purposes of Guidelines sentencing

violates neither the Sentencing Reform Act . . . nor the Due Process Clause.” United

States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996) (citing United States v. Sciarrino, 884

F.2d 95, 98 (3d Cir. 1989)). “The sentencing court can give a high level of credence to

hearsay statements, going so far as to ‘credit hearsay evidence over sworn testimony,

especially where there is other evidence to corroborate the inconsistent hearsay

statement.” Id. (quoting United States v. Miele, 989 F.2d 659, 664 (3d Cir. 1993)).

“[T]o avoid “misinformation of constitutional magnitude,” however, “we require that

information used as a basis for sentencing under the Guidelines . . . have ‘sufficient

indicia of reliability to support its probable accuracy.’” Id. (quotations and citations

omitted). According to the Sentencing Guidelines,

       [i]n 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. § 6A1.3(a). The commentary to § 6A1.3 further provides:

       In determining the relevant facts, sentencing judges are not restricted to
       information that would be admissible at trial. 18 U.S.C. § 3661. Any

                                              5
       information may be considered, so long as it has “sufficient indicia of
       reliability to support its probable accuracy.” Reliable hearsay evidence may
       be considered. Out-of-court declarations by an unidentified informant may
       be considered “where there is good cause for the nondisclosure of his
       identity and there is sufficient corroboration by other means.”

U.S.S.G. § 6A1.3(a), Commentary. Our Court has held that “this standard [sufficient

indicia of reliability] should be applied rigorously.” Miele, 989 F.2d at 664.

       The Government’s stated good cause for the nondisclosure of the confidential

informant’s identity was “[t]he ability to protect the identity of the [confidential

informant] in as many cases as possible,” as that is a “valuable asset and one that

encourages individuals to assist the United States.” See United States v. Johnson, 302

F.3d 139, 148-49 (3d Cir. 2002) (stating that, in order to encourage citizens to report

criminal activity, the Government has a privilege to withhold from disclosure the identity

of persons who fail to furnish information regarding illegal activity), cert. denied, 537

U.S. 1140 (2003). Scott neither effectively contests the Government’s stated good cause

nor argues that disclosure of the confidential informant’s identity was either “relevant and

helpful to [his] defense” or “essential to a fair determination of [his] guilt.” Id. at 149

(internal quotations omitted).

       Scott’s primary basis for requiring in-person testimony of the informant was that in

his Blakely jury trial waiver he had crossed out the words “including hearsay” from “the

Federal Rules of Evidence, other than with respect to privileges, shall not apply under

Fed. R. Evid. 1101(d)(3), and the court may consider any reliable evidence, including



                                               6
hearsay.” This certainly amounts to a reservation by Scott of a right to challenge the

admissibility of any hearsay at sentencing post-Blakely. Any basis there may have been in

Blakely for holding hearsay inadmissible at sentencing, however, was negated by

Booker’s remedial holding. This is because the Court remedied the Guidelines by

excising two provisions of the Sentencing Reform Act that made them mandatory, 543

U.S. at 245-46, but did not strike down 18 U.S.C. § 3661, see id. at (stating that, “with

[18 U.S.C. §§ 3553(b)(1) and 3742(e)] excised [,] . . . the remainder of the Act satisfies

the Court’s constitutional requirements”). This, as demonstrated above, allows district

courts to base sentencing determinations on reliable hearsay. In fact, Justice Scalia’s

dissent in Booker indicates that the majority’s holding did not alter a sentencing court’s

ability to rely on hearsay to make sentencing determinations. Id. at 304 (Scalia, J.,

dissenting in part) (“Inexplicably, however, the [majority] opinion concludes that the

manner of achieving uniform sentences was more important to Congress than actually

achieving uniformity-that Congress was so attached to having judges determine ‘real

conduct’ on the basis of bureaucratically prepared, hearsay-riddled presentence reports

that it would rather lose the binding nature of the Guidelines than adhere to the

old-fashioned process of having juries find the facts that expose a defendant to increased

prison time.”). Therefore, we must reject Scott’s argument that the District Court erred in

considering reliable hearsay at sentencing to resolve the factual dispute concerning the

quantities of drugs involved in his crimes.



                                              7
       Scott’s final argument is that his sentence was unreasonable under Booker. He

asserts that (1) the District Court relied on hearsay evidence to determine his drug

quantity amount and (2) the Guidelines’ imposition of more severe sentences on those

prosecuted for distribution or possession with intent to distribute crack cocaine than on

those prosecuted for similar crimes involving cocaine powder “results in sentences that

are unjust,” and, thus, is per se unreasonable. The Government’s response is unhelpful.

It first argues that we lack jurisdiction to review a sentence, such as Scott’s, that is within

the applicable Guidelines range. We recently rejected that argument in United States v.

Cooper, where we made clear that an unreasonable sentence is “imposed in violation of

law,” so that we have jurisdiction under § 3742(a)(1) regardless where the sentence falls

in relation to the Guidelines range. 2006 WL 330324, at *5-7. The Government then

maintains that a sentence within or below the applicable Guidelines range is per se

reasonable. Cooper forecloses that argument as well. Although “a within-[G]uidelines

range sentence is more likely to be reasonable than one that lies outside,” a sentence

within the Guidelines range is not per se reasonable. Id. at *20-21. Instead, the appellant

bears the burden of establishing the unreasonableness of the sentence. Id.

       We require that the District Court give “meaningful consideration” to the factors

enumerated in 18 U.S.C. § 3553(a), id. at *11, and to any sentencing grounds “properly

raised by the parties which have recognized legal merit and factual support in the record,”

id. at *21. The Court does not need to recite these factors or make specific findings with



                                               8
respect to each as long as the record makes clear that it took them into account. Id. at

*12. Moreover, we apply a deferential standard of review to the Court’s application of

the factors to the facts of the case. Id. at *15.

       Examining the District Court’s findings, there is little question the sentence it

imposed was reasonable. The District Court considered the Guidelines range, its

discretion to depart from that range in fashioning a sentence, the role of § 3553 in

directing its exercise of that discretion, and the goals to be served by the choice of

sentence. For the reasons outlined above, the District Court’s examination of hearsay

evidence does not amount to unreasonableness; indeed, it is specifically authorized by the

Sentencing Reform Act and the Guidelines.

       Scott’s sole remaining contention is that the Guidelines’ crack cocaine/powder

cocaine disparity is so disproportionate it “cannot be justified,” and therefore, his 108-

month sentence is unreasonable under Booker. To bolster his argument, he points to the

“1997 Statement on Powder and Crack Cocaine to the Senate and House Judiciary

Committes,” in which several federal judges, each of whom was a former United States

Attorney, argue that the “disparity between powder cocaine and crack cocaine . . . results

in sentences that are unjust and do not serve society’s interests.” The question before us,

however, is not whether a sentencing court may use the disparity as a reason to impose a

shorter sentence than the one recommended by the Guidelines after Booker, but rather

whether it is error for the District Court not to have taken the disparity into account.



                                                9
Because we have routinely upheld the disparity against constitutional attack, including

equal protection claims, see, e.g., United States v. Frazier, 981 F.2d 92, 96 (3d Cir. 1992)

(holding that distinctions between crack cocaine and cocaine powder for sentencing

purposes do not constitute an equal protection violation and that the 100:1 ratio does not

constitute cruel and unusual punishment); United States v. Jones, 979 F.2d 317, 320 (3d

Cir. 1992), superseded by statute on other grounds (holding Guidelines provisions

imposing higher offense levels for offenses involving crack cocaine not to be

unconstitutionally vague), “it would be inconsistent to require the [D]istrict [C]ourt to

give a nonguideline sentence based on the [disparity].” United States v. Gipson, 425 F.3d

335, 337 (7th Cir. 2005) (emphasis in original).

                                       * * * * *

       In this context, we affirm Scott’s sentence.




                                             10
