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


7-30-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4389




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"USA v. Grass" (2007). 2007 Decisions. Paper 681.
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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                    __________

                        No. 05-4389
                        __________

             UNITED STATES OF AMERICA

                              v.

                   NICHOLAS C. GRASS
                   a/k/a NICKY GRASSO

                       Nicholas Grass,

                                Appellant
                        __________

         Appeal from the United States District Court
           for the Eastern District of Pennsylvania
             (D.C. Criminal No. 00-cr-00120-01)
          District Judge: Hon. Eduardo C. Robreno
                         __________

      Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                       June 14, 2007

Before: McKEE, STAPLETON, and NYGAARD, Circuit Judges.

                (Opinion Filed: July 30, 2007)

                        __________

                         OPINION
                        __________
MCKEE, Circuit Judge:

       Nicholas Grass appeals the sentence that was imposed following his conviction for

offenses arising from his involvement in a conspiracy to distribute methamphetamine.

The only issue raised on appeal is whether the sentencing court erred in determining the

quantity of that controlled substance for purposes of sentencing. For the reasons that

follow, we will affirm.1

                                                I.

       Inasmuch as we write primarily for the parties, we need not set forth the factual or

procedural background except insofar as may be helpful to our brief discussion. Grass

argues that the evidence of drug quantity was too tenuous to allow the court to hold him

responsible for ten pounds of methamphetamine.

       In his initial brief, Grass argued that the Government must establish facts relevant

only to sentencing by proof that is “at least ‘clear and convincing,’ if not by proof beyond

a reasonable doubt.” Appellant’s Br. at 19. However, he made that argument before our

decision in United States v. Grier, 475 F.3d 556 (3d. Cir. 2007)(en banc). In the Reply

Brief filed after Grier, Grass concedes that we have “authoritatively determined that a

preponderance of reliable evidence [is] the applicable burden of proof in the district

court.” Reply Br. at 1. He nevertheless maintains that the contradictions and

inconsistencies on this record cannot satisfy even that standard.



       1
           We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                                2
       We review a sentencing court’s findings of drug quantity for purposes of

sentencing for clear error. United States v. Sau Hung Yeung, 241 F.3d 321, 322 (3d Cir.

2001). If a sentence rests upon an unsupported or clearly erroneous finding of fact, it is

deemed “unreasonable” and cannot stand. United States v. Cooper, 437 F.3d 324, 330 (3d

Cir. 2006).

       The Sentencing Guidelines Commentary Provides that where “there is no drug

seizure or the amount seized does not reflect the scale of the offense, the sentencing judge

shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1,

Application Note 12. Consequently, the District Court must “determine the amount and

kind of controlled substance for which [the] defendant should be held accountable and

then . . . impose a sentence that varies depending on the amount and kind.” Edwards v.

United States, 523 U.S. 511, 513-14, (1998). The evidence, “which need not be

admissible at trial, must possess ‘sufficient indicia of reliability to support its probable

accuracy.’” United States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 2002) (citing United States

v. Miele, 989 F.2d 659, 663 (3d Cir. 1993). “[T]he sentencing court must carefully

scrutinize the government’s proof to ensure that its estimates are supported by a

preponderance of the evidence.” United States v. Paulino, 996 F.2d at 1545.

       Here, the District Court listened to the evidence that was presented at Grass’s

original trial and retrial as well as the sentencing hearing.2 The District Court concluded


       2
         Grass concedes that the sentencing court could consider evidence from the initial trial as
well as the retrial that he won on appeal. See Appellant’s Br. at 7 (The ‘facts’ that were before

                                                3
that Grass was responsible for a total of ten pounds of methamphetamine based upon

testimony that he received two deliveries of five pounds each on two separate occasions.

That testimony was corroborated by taped conversations involving coconspirators. For

example, during the August 11th conversation, McKee told Haefele that Nick was “sitting

on money.” 2App at 385. At trial, McKee explained that this referred to a payment of

$50,000 that Grass still owed for the second five-pound distribution of “meth,” that Grass

had received on credit. Although Grass argues that that testimony is less than credible and

that it is inconsistent with the “grand total,” Appellant’s Br. at 12, that the cooperating

witnesses claimed to have delivered, we believe that the quality and quantity of the

evidence before the District Court is sufficient to survive review for clear error.

        Although (as defense counsel meticulously elaborates in his brief) the record is

not without conflict and contradiction, the District Court’s resolution of those conflicts

and contradictions is not clearly erroneous. Rather, the District Court examined the

government’s proof “to ensure that its estimates are supported by a preponderance of the

evidence.” United States v. Boone, 279 163, 184 (3d Cir. 2002). See 2App at 732a. Grass

argues that the District Court’s implicit rejection of all “of [his] arguments why the ten-

pound determination was unreliable[]” cannot stand absent more explanation than the

District Court provided. Appellant’s Br. at 7. The District Court simply explained “that

the conflict in the testimony, to the extent that there is a conflict, is not sufficient to bring




the sentencing court are found in the record of two trials, . . .”.).

                                                   4
the proof below the level of a preponderance of the evidence.” 2App. at 732a.

       Under U.S.S.G. § 1B1.3(a)(1)(A), a defendant’s guideline range is determined on

the basis of “all acts and omissions committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant.” A defendant is accountable for

all quantities of a controlled substance that he is directly involved with. In the case of

jointly undertaken activity, the defendant is responsible for the quantity of drugs that are

reasonably foreseeable and within the scope of the jointly undertaken criminal activity.

U.S.S.G. § 1B1.3, commentary, application note (2)(ii).

       The District Court considered all of the evidence that was presented as well as the

competing arguments of defense counsel and the Government and imposed a sentence

based upon the court’s conclusion that the preponderance of the evidence established that

Grass received two five pound deliveries of methamphetamine on two different

occasions. That finding was based upon the court’s resolution of the conflicts and

ambiguities in the record, and its conclusion is supported by the record. Accordingly, we

can not conclude that the District Court’s conclusion that Grass was responsible for ten

pounds of methamphetamine was clearly erroneous.

                                              II.

       For the reasons set forth above, we will affirm the judgment of sentence.




                                              5
