                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2009

USA v. Alex Santiago
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1568




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-1568


                           UNITED STATES OF AMERICA

                                           v.

                                 ALEX SANTIAGO,
                                        Appellant


                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         (D.C. Criminal No. 06-cr-00318-001)
                   District Judge: Honorable Christopher C. Conner


                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 19, 2009

                   Before: RENDELL and GARTH, Circuit Judges,
                           and PADOVA, District Judge*.

                                 (Filed: June 11, 2009 )
                                      __________

                              OPINION OF THE COURT
                                    __________

RENDELL, Circuit Judge.

      Alex Santiago appeals his sentence, arguing that insufficient evidence supported
____________________

    * Honorable John R. Padova, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
the District Court’s determination that he was an “organizer, leader, manager, or

supervisor in any criminal activity” under U.S.S.G. § 3B1.1(c). Because the District

Court properly applied the Guidelines based on sufficient evidence before it, we will

affirm.

          Santiago pled guilty to “conspiracy to distribute and possess with intent to

distribute” 50 grams or more of “crack” cocaine, in violation of 21 U.S.C. § 846. (App.

23). The District Court determined that Santiago was an “organizer, leader, manager, or

supervisor in any criminal activity” under U.S.S.G. § 3B1.1(c) and, accordingly,

sentenced Santiago to the statutory minimum term of 120 months in prison.1 We review

Santiago’s sentence for reasonableness. See United States v. Sevilla, 541 F.3d 226,

230-32 (3d Cir. 2008). Our decision in United States v. Gunter, 462 F.3d 237, 247 (3d

Cir. 2006), criticized on other grounds by Spears v. United States, 129 S. Ct. 840 (2009),

instructs a district court to follow a three-step process to determine an appropriate

sentence, which includes calculating a defendant’s sentence under the Guidelines,

formally ruling on any motions by the parties and stating on the record whether it is

granting a departure, and providing meaningful consideration to the 18 U.S.C. § 3553(a)

factors. See United States v. Smalley, 517 F.3d 208, 211 (3d Cir. 2008). Santiago’s

challenge focuses on the District Court’s step one analysis. Specifically, Santiago


  1
    The District Court had jurisdiction under 18 U.S.C. § 3231, and we exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and (a)(2).

                                               2
contends that the District Court’s determination of his “manager” status under § 3B1.1(c)

rested on hearsay evidence and was not supported by the record.

       Whether a defendant satisfies an aggravating factor under § 3B1.1 is a question of

fact, on which the government bears the burden of proof by a preponderance of the

evidence. United States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996); United States v.

Ortiz, 878 F.2d 125, 127 (3d Cir. 1989). We review a district court’s factual findings

supporting a role enhancement for clear error, United States v. Helbling, 209 F.3d 226,

242-43 (3d Cir. 2000), but exercise plenary review of questions of law, including the

proper construction of the Guidelines, id. at 243, and the admissibility of hearsay

evidence, Brothers, 75 F.3d at 848.

       Santiago’s first argument is that the District Court’s § 3B1.1(c) determination

rested on impermissible hearsay evidence. At sentencing, Agent Mark Andrasi testified

that Santiago used “runners” to deliver drugs to a Drug Enforcement Agency (“DEA”)

informant during several controlled drug buys. (App. 91). Andrasi’s testimony was

based on information conveyed to him by drug task force members participating in these

buys. (App. 92-93). Santiago contends that the task force members’ communications to

Andrasi constitute inadmissible hearsay. Hearsay evidence is admissible in sentencing

proceedings, provided it has “sufficient indicia of reliability to support its probable

accuracy.” Brothers, 75 F.3d at 848 (quoting United States v. Sciarrino, 884 F.2d 95, 98

(3d Cir. 1989)) (noting that “use of hearsay in making findings for purposes of Guidelines



                                              3
sentencing violates neither the Sentencing Reform Act of 1984 nor the Due Process

Clause,” but that to avoid “misinformation of constitutional magnitude,” such testimony

must have sufficient indicia of reliability); see also U.S.S.G. § 6A1.3(a) (“[T]he 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.”).

       Here, we have little trouble concluding that the task force members’ statements to

Andrasi possessed the requisite degree of reliability. As participants in the transactions,

the taskforce members had reliable first-hand knowledge of whether Santiago used

runners. See United States v. Paulino, 996 F.2d 1541, 1548 (3d Cir. 1993) (“An agent’s

recital of events concerning discussions with a reliable confidential informant, and

recollection of a conversation relayed to another federal agent working on the same case,

meet the standard of minimum indicia of reliability.”). Further, the hearsay statements

concern general information rather than particularized facts, such as the precise amount of

drugs dealt – specific information about which we have required a higher degree of

reliability. Brothers, 75 F.3d at 848-49; see also United States v. Petty, 982 F.2d 1365,

1369 (9th Cir. 1993) (noting presumptive unreliability of hearsay evidence as to drug

quantity). The hearsay declarants here – DEA agents – were also credible. Compare

United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007) (finding that police officer’s

testimony “easily passes” reliability test), with United States v. Miele, 989 F.2d 659, 664



                                               4
(3d Cir. 1993) (finding unreliable hearsay statements by addict informant with poor

memory). Santiago does not identify any evidence inconsistent with Andrasi’s assertions.

See Miele, 989 F.2d at 664 (noting that the “vast disparity between Habera’s

[informant’s] estimate in the PSI and the significantly lower estimates he provided at the

co-defendants’ trial casts doubt on the reliability of the PSI’s estimate”). Accordingly,

the District Court properly considered Andrasi’s testimony.

       Santiago next argues that insufficient evidence supported the District Court’s

determination that Santiago was a “manager” of criminal activity in the timeframe

specified in the indictment — December 2005 to September 2006. However, co-

defendant Julio Cunde testified that between July and September of 2006, he and another

individual, Flaco, “cooked” and distributed crack for Santiago.2 (App. 64, 66, 68, 70, 72).

       For the foregoing reasons, we conclude that adequate evidence supported the

District Court’s determination that Santiago was an “organizer, leader, manager, or

supervisor in any criminal activity” under U.S.S.G. § 3B1.1(c). The order of the District

Court will be AFFIRMED.




  2
    Santiago also contends that the District Court should have applied the “safety valve”
provisions, 18 U.S.C. § 3553(f)(4) and U.S.G.G § 5C1.2(a)(4), and granted an additional
two-level decrease in the base offense level under U.S.G.G § 2D1.1(b)(11), rather than
impose the statutory minimum sentence of 120 months. The District Court correctly
concluded that the “safety valve” provisions were inapplicable, and that imposition of the
statutory minimum sentence was mandatory, because Santiago was a manager of criminal
activity under § 3553(f)(4) and § 5C1.2(a)(4).


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