                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                     UNITED STATES COURT OF APPEALS
                          for the Fifth Circuit                     August 13, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                              Nos. 03-20562
                                 03-20565
                                 03-20579




UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,


                                  VERSUS


JESUS LORENZO AYALA (03-20562),
MANUEL LORENZO GARCIA (03-20565),
ARMANDO PEREZ (03-20579),


                                                  Defendants-Appellants.



              Appeals from the United States District Court
               for the Southern District of Texas, Houston
                                H-02-CR-36



Before JOLLY, DAVIS, and JONES, Circuit Judges,

W. EUGENE DAVIS, Circuit Judge:*

      Jesus     Lorenzo   Ayala   (“Ayala”),    Manuel    Lorenzo     Garcia

(“Garcia”), and Armando Perez (“Perez”) challenge their sentences

imposed following their entry of guilty pleas to possession with

intent to distribute and conspiracy to possess with intent to

  *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
distribute marijuana.         They argue that evidence the district court

relied on from a government informant used to compute the amount of

marijuana in question was unreliable and insufficient to satisfy

the preponderance of the evidence standard.                Because the district

court judge did not hear testimony from the informant, after the

government argued that the informant was not credible, we conclude

the   district     court    erred   in   relying     on   that    evidence.      We,

therefore,    vacate       the   sentences    and    remand      these   cases   for

resentencing and to give the district court an opportunity to

examine the credibility of the government informant.



                                         I.

      Terry Blevins (“Blevins”) was involved in a drug trafficking

scheme with Ayala, Garica, and Perez in which he used his 1993 Ford

pick-up truck to transport marijuana between Roma and Houston,

Texas.    The truck bed had a false bottom and hidden compartment

that could be used to conceal contraband.                 According to Blevins,

Garcia    and/or    an    associate   Eduardo       Aguirre   (“Aguirre”)     would

contact Blevins by telephone and explain that they needed him to

make a delivery.         Blevins would drive his truck to a restaurant in

Roma, contact Garcia and Aguirre to tell them he was arriving, and

hand off his truck to Ayala and Perez.                Blevins would stay in a

Roma motel, the Roma Inn or MVP Motel, until his truck was returned

to him.    He would then drive his truck, now full of marijuana, to

the instructed location in Houston, followed by Garcia, and/or

                                         2
Aguirre, Ayala, and Perez in a separate vehicle.

      According to Blevins, upon arriving in Houston he would hand

the truck over to Ayala and Perez who would drive the truck to an

undisclosed location and unload the drugs.            Defendants would then

return the truck to Blevins and pay him $3,000 for his services.

      Blevins informed the Drug Enforcement Agency (“DEA”) of this

drug trafficking operation, and on December 18-19, 2001 the                 DEA

surveilled an entire transaction between Blevins and defendants.

Agents followed the truck from Roma to Houston while Blevins was

driving, and then followed the truck to the residence where the

drugs were    unloaded    by   defendants.      The   DEA   agents   arrested

defendants along with other associates who were helping to unload

the contraband.     Later that evening the DEA obtained a warrant to

search the residence where the drugs were unloaded and seized 384.7

kilograms of marijuana and numerous scales, bags, and cellophane

that could have been used to divide up the contraband for sale.1

      On January 18, 2002 Ayala, Garcia, Perez, and additional

coconspirators     were   indicted    for    possession     with   intent    to

distribute a controlled substance under 21 U.S.C. § 841(a)(1),

841(b)(1)(B)(vii), and 18 U.S.C. § 2, and conspiracy to possess

with intent to distribute a controlled substance in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846.             Each defendant



  1
    Agents also seized 61 kilograms of marijuana from the freezer of a trailer
on the property pursuant to a consensual search. It could not be determined,
however, whether those drugs came from the defendants in this case.

                                      3
pleaded guilty to both counts of the indictment on October 18,

2002.   Subsequently, the United States Probation Office prepared a

presentence investigation report for each of the defendants.                   The

report recommended approximating “the quantity of the controlled

substance [involved in the case]” thus enhancing the defendants’

sentences, because the amount of contraband “seized d[id] not

reflect the scale of the offense[.]” U.S.S.G. § 2D1.1. cmt. n. 12.

     In making this approximation the PSR primarily relied upon the

testimony of informant Blevins. Blevins asserted that he was asked

to make a delivery twice a week from June or July 2001 to September

2001 and once a week after September 11, 2001.                   The DEA agents

investigation also revealed that Blevins had stayed at the Roma Inn

or MVP Motel a total of ten times from September to December 2001.

The DEA further determined in its investigation that Blevins’s Ford

Truck   was    able    to   carry   453.6   kilograms     of   marijuana.      The

probation officer also learned that Blevins was detained in a

November 2001 traffic stop in which a state trooper discovered

Blevins’s pickup truck’s hidden compartment and seized a small

quantity      of   loose    marijuana   found   there.         Based   upon   this

information the probation officer estimated that Blevins had made

eight additional deliveries of 384 kilograms each before the

delivery resulting in arrest, for a total of 3461.9 kilograms of

marijuana.         This total was used in computing the base offense

levels in the PSR.

     The      defendants     objected   to    the   PSR    arguing     that    the

                                        4
information from Blevins, who was then a confidential informant,

was not reliable and that the estimates of the amount of marijuana

transferred in the past were overly speculative.              The government

also    challenged   the   PSR   objecting   to   the   use   of   historical

quantities of marijuana in the computation of the defendants’ base

offense levels since it believed that Blevins was deceitful and

unreliable and that the details of prior deliveries had not been

corroborated by sufficient information and investigation.              As such

the government did not believe that the approximated amounts were

supported by proof by a preponderance of the evidence.

       The judge, upon hearing testimony of one of the DEA agents but

not    Blevins,   overruled   both   the   government’s   and      defendants’

objections to the PSR and sentenced all defendants based upon the

quantities set forth in the PSR.

       In this appeal, defendants argue that the district court erred

in accepting the PSR’s estimates of drug quantity over both the

government’s and defendants’ objections because the amounts of

marijuana had not been established by a preponderance of the

evidence.    The defendants ask us to vacate their sentences and

remand the cases for resentencing.           The government now argues,

contrary to its position before the district court, that the

district court did not err by adopting the PSR over the parties’

objections thus enhancing the base offense level with the increased

amounts testified to by Blevins.



                                      5
                                 II.

     The sentencing guidelines require the court to approximate the

amount of drugs at issue in a case where either there has been no

drug seizure or the amount seized does not reflect the scale of the

offense.    United States Sentencing Guidelines § 2D1.1, cmt. n. 12.

Estimates of the amount of drugs in controversy are fact questions

which must be decided to determine relevant conduct under the

guidelines.     We review such findings for clear error.     United

States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998); United States

v. Torres, 114 F.3d 520, 527 (5th Cir. 1997).

     The government must prove facts relevant to sentencing, like

the drug quantity estimate in this case, by a preponderance of the

evidence.     United States v. Huskey, 137 F.3d 283, 291 (5th Cir.

1998).   Thus, the issue becomes whether the district court clearly

erred in finding by a preponderance of the evidence that 3461.9

kilograms of marijuana is the amount of marijuana at issue in this

case.

     Defendants’ primary arguments focus on the fact that the

government conceded below that it could not prove the estimated and

enhanced drug quantities by a preponderance of the evidence because

of the unreliability of the informant Blevins.       The defendants

assert both that it is the government’s burden to prove relevant

conduct by a preponderance of the evidence and that the district

court erred in ignoring the government’s objection.      They argue


                                  6
further     that    the    government     is    judicially       estopped   from    now

supporting the district court’s drug quantity estimate.

       We   are    not     convinced     by     the    defendant’s      arguments     as

presented.     There is nothing about the government’s concession per

se that would preclude the district court from adopting the drug

quantity estimate in the PSR.             Courts are not bound by government

concessions.        Alexander v. United States, 390 F.2d 101, 108 (5th

Cir. 1968); United States v. Shelton, 325 F.3d 553, 560 & n.10 (5th

Cir.   2003).        Nor    are   we    bound    by     the    government’s     earlier

concessions via judicial estoppel.                     Courts have frowned upon

application of the doctrine of judicial estoppel in the criminal

context and we see no reason to bind the government to its earlier

concession.        See Nichols v. Scott, 69 F.3d 1255, 1272 & n.33 (5th

Cir. 1995).        As such we decline to vacate defendants’ sentences

based purely upon the government’s objections to the PSR below.

       We do find, however, that the district court’s estimate of the

amount of drugs at issue was clearly erroneous.                   The district court

refused to hear Blevins’s live testimony despite the government’s

assertion that the informant had repeatedly lied to them while

assisting    the     government     in    other       cases.     Instead    the    court

discounted this information and accepted the probation officer’s

account in the PSR.

       The government points out that some corroborating evidence was

presented     supporting      the      PSR’s    findings.         DEA   Agent     Nelson


                                           7
testified that he believed Blevins was a reliable informant in this

case despite his deceit in other cases where he served as an

informant.        The   probation   officer    uncovered     hotel    receipts

reflecting ten visits by Blevins to Roma, Texas, which corresponded

to Blevins’s account of the smuggling transactions. The government

also produced evidence of Blevins’s November 2001 arrest in which

the police discovered small amounts of loose marijuana in the

secret   compartment     in   Blevins’s    truck.    But   without   Blevins’s

testimony, this evidence has little or no probative value.                 When

the prosecutor in this case, who had extensive contacts with

Blevins, and while acting as an officer of the court, explained why

Blevins could not be trusted, we conclude the district court erred

in crediting Blevins’s information without hearing his testimony.

Accordingly, we find that the district court clearly erred in

finding by a preponderance of the evidence that defendants were

responsible for 3,461.9 kilograms of marijuana.



                                    III.

     For the reasons stated above we vacate defendants’ sentences

and remand to the district court for resentencing.              The court may

sentence defendants either on the quantity of drugs seized or hear

Blevins’ testimony and sentence defendants based on the court’s

evaluation   of    Blevins’    credibility    with    respect   to   any   drug

quantities in addition to the drugs seized.

     We, therefore, vacate defendant’s sentences and remand this

                                      8
case to the district court for further proceedings consistent with

this opinion.

VACATED.

REMANDED.




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