                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  April 14, 2008
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-5090
          v.                                            (N.D. of Okla.)
 ETHELWALDO TORRES                                (D.C. No. CR-06-131-JHP)
 RODRIGUEZ, a/k/a Waldy,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.


      Ethelwaldo Torres Rodriguez pleaded guilty to possession with an intent to

distribute a controlled substance. At sentencing, the district court found

Rodriguez had possessed 6.99 kilograms of methamphetamine during the course

of his criminal conduct. Based on this finding, the court sentenced Rodriguez to

250 months imprisonment.

      Rodriguez contests the basis for the court’s finding of 6.99 kilograms. He

argues the government’s primary witness was not credible and certain statements


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Rodriguez made to police should not have been considered at sentencing. Absent

reliance upon that evidence, Rodriguez argues his base offense level would have

been much lower under the United States Sentencing Guidelines.

      We find no error in the court’s analysis. Exercising jurisdiction under 28

U.S.C. § 1291, we therefore AFFIRM.

                                    I. Background

      Rodriguez pleaded guilty to possession with an intent to distribute

methamphetamine. After accepting Rodriguez’s guilty plea, the district court

ordered the probation office to gather information relevant to the sentencing

decision. In accordance with Rule 32 of the Federal Rules of Criminal Procedure,

a probation officer conducted a presentence investigation and prepared a

presentence report for the court.

      A. Presentence Report

      The probation officer’s presentence report (PSR) contained facts pertaining

to the amount of drugs Rodriguez had possessed during the offense, as well as

Rodriguez’s criminal background. The amount of drugs was estimated at 6.99

kilograms, which was calculated over a period of time covering Rodriguez’s drug

deliveries, from mid-2004 to early 2006. A methamphetamine dealer, Larry

McDonald, supplied most of the facts supporting this estimate. Rodriguez’s

criminal background revealed multiple prior convictions. Based on the amount of




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drugs and his criminal background, the probation officer recommended a range of

imprisonment to the district court of 235 to 293 months.

      As additional support, the probation officer also included in the PSR

statements made by Rodriguez on the night of his arrest. When arrested,

Rodriguez told police he had purchased one-half pound to two pounds (226.8

grams to 907.2 grams) of methamphetamine each month for the immediately

preceding eight months. In aggregate, Rodriguez’s estimate amounted to as much

as 7.26 kilograms of methamphetamine. The probation officer included

Rodriguez’s statements in the PSR, but did not rely upon them for purposes of

calculating a sentencing recommendation.

      After the PSR was filed, Rodriguez lodged one primary objection. He

objected to the use of McDonald’s statements to establish Rodriguez had

possessed 6.99 kilograms of methamphetamine. Rodriguez argued McDonald’s

statements were not credible. Neither party objected to the portion of the PSR

that included Rodriguez’s statements that he had possessed up to 7.26 kilograms

of methamphetamine over an eight-month period.

      B. Sentencing Hearing

      At the sentencing hearing, the prosecution called three witnesses to the

stand to establish the facts set forth in the PSR. McDonald testified in accordance

with his earlier statements concerning his drug transactions with Rodriguez. He

stated specifically that Rodriguez had possessed 10 to 15 pounds (4.53 to 6.80

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kilograms) of methamphetamine from approximately the summer of 2004 to

January, 2006. McDonald’s wife and another witness, Jeffrey Harper, provided

additional testimony corroborating McDonald’s statements. The defense called an

ATF agent to rebut McDonald’s testimony.

      After the hearing, the district court made a factual finding that Rodriguez

had possessed 6.99 kilograms of methamphetamine. The court relied on

McDonald’s testimony at the hearing, as well as Rodriguez’s statements to the

police on the night of his arrest. The court explicitly found McDonald was

credible, thereby rejecting the defendant’s contentions to the contrary. Based on

the 6.99 kilogram amount (as well as Rodriguez’s criminal history), the court

found the appropriate Guidelines range of imprisonment was 235 to 293 months.

The court sentenced Rodriguez to 250 months imprisonment.

                                  II. Discussion

      Rodriguez challenges the district court’s finding that he possessed 6.99

kilograms of methamphetamine. At sentencing, the government has the burden of

proving the amount of drugs possessed by the defendant by a preponderance of

the evidence. United States v. Hernandez, 509 F.3d 1290, 1298 (10th Cir. 2007).

A district court’s drug quantity determination will be upheld unless “clearly

erroneous,” which, in other words, means “we are left with the definite and firm

conviction that a mistake has been made.” United States v. Todd, 515 F.3d 1128,

1135 (10th Cir. 2008). Rodriguez argues that absent two errors made by the

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district court, the government would have failed to meet its burden. In particular,

he argues the district court clearly erred by: (1) finding McDonald’s testimony

credible, and (2) relying upon Rodriguez’s statements to police. We examine

each issue in turn.

      A. McDonald’s Credibility

      “Our review of a district court’s determination of a witness’s credibility at

sentencing is extremely deferential.” United States v. Payton, 405 F.3d 1168,

1171 (10th Cir. 2005). “The credibility of a witness at sentencing is for the

sentencing court, who is the trier of fact, to analyze.” United States v. Virgen-

Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003) (quoting United States v.

Deninno, 29 F.3d 572, 578 (10th Cir. 1994)). A district court may credit a

witness’s testimony regarding drug quantities if the testimony contains “a

minimum indicia of reliability.” United States v. Edwards, 69 F.3d 419, 438

(10th Cir. 1995).

      Rodriguez challenges McDonald’s testimony because of alleged factual

errors regarding when McDonald and Rodriguez met for some of the transactions

and McDonald’s estimates of the drug quantities. As an initial matter, Rodriguez

is correct that McDonald erred on the exact dates of his association with

Rodriguez. McDonald testified at the sentencing hearing that he dealt with

Rodriguez during a time when Rodriguez was for the most part in jail (summer of




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2004 to February of 2005). The district court candidly recognized the

discrepancy but concluded it did not destroy McDonald’s credibility.

      McDonald provided sufficient other background facts to establish his

credibility. These facts included: (1) some of the transactions occurred after

Rodriguez was released from prison; (2) during that time, McDonald and

Rodriguez purchased about a pound of methamphetamine per month; and (3) the

cost of the methamphetamine was approximately $9,000/pound. The court also

recognized: (1) McDonald’s wife and a fellow drug distributor, Harper,

corroborated McDonald’s primary testimony; (2) McDonald had previously told

police officers he dealt with Rodriguez for about a year, distributing an amount of

about ten pounds (4.5 kilograms) of methamphetamine; and (3) Rodriguez’s own

statements to police corroborated the amounts identified by the witnesses at the

sentencing hearing. In addition, the large sums of cash found at Rodriguez’s

home when he was arrested further bolstered McDonald’s testimony that

Rodriguez was dealing in large quantities of methamphetamine.

      After listening to all four of the witnesses who testified at the sentencing

hearing, and observing their demeanor and memory, the court concluded

McDonald was sufficiently credible as to drug quantities despite errors in his

testimony. We see no reason to overturn the district court’s determination that

McDonald’s testimony contained a minimum indicia of reliability and was

therefore credible. See, e.g., United States v. Browning, 61 F.3d 752, 754 (10th

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Cir. 1995) (upholding district court’s credibility determinations because the

witnesses’ testimony contained a “minimum indicia of reliability”).

       We therefore affirm the district court on this issue.

       B. Rodriguez’s Statements

       We review the district court’s reliance upon Rodriguez’s statements at

sentencing for clear error. United States v. Garcia, 78 F.3d 1457, 1462 (10th Cir.

1996). A district court has considerable discretion in finding facts relevant to

determining a defendant’s sentence. “The determination of a convicted offender’s

sentence is a matter within the discretion of the sentencing judge.” Id. This court

has never read either the Guidelines or the Federal Rules of Criminal Procedure

as “limiting the judge’s ability to determine facts relevant to the sentencing

decision.” Id. at 1463 n.6.

       Rodriguez argues the district court should not have relied on his statements

to police in determining his sentence. He contends Rule 32 of the Federal Rules

of Criminal Procedure limits the court’s discretion to consider facts not relied

upon by the probation officer in calculating a sentencing recommendation in the

PSR.

       The argument is unpersuasive on several scores. First, we have repeatedly

held that a district court has considerable discretion to find facts relevant to

determining a defendant’s sentence. In United States v. Garcia, 78 F.3d 1457

(10th Cir. 1996), for example, we affirmed the district court’s decision to hear

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testimony from two confidential informants even though both parties believed the

informants were not credible, and the government did not rely on them in its

sentencing calculation. We nonetheless determined the court’s decision to call

the witnesses to the stand was within the scope of its power and duty to gather all

facts relevant to the sentencing decision. Id. at 1462–63. We noted the

considerable discretion and responsibility a district court shoulders in the area of

sentencing, concluding: “The judge remains ultimately responsible for

determining the facts and must establish the relevant facts even if all the parties

argue to the contrary.” Id. at 1463 n.6.

      Second, nothing in Rule 32 prevents a district court from relying upon facts

in the PSR simply because the probation officer writing the PSR chooses not to.

See Fed. R. Crim. Proc. 32. Nor is this a case of unfair surprise or unreliable

evidence. See, e.g., United States v. Rakes, 510 F.3d 1280, 1286 (10th Cir. 2007)

(observing Rule 32 aims to (1) give the parties notice of evidence the court will

rely upon in sentencing, and (2) minimize the chance the court will consider

unreliable evidence). Because Rodriguez’s statements were contained in the PSR

submitted to the court, both sides were on notice the district court could rely upon

them in its sentencing decision. If Rodriguez thought his statements were

unreliable or inadmissible, he was obliged to contest them. See, e.g., United

States v. Cereceres-Zavala, 499 F.3d 1211, 1215–16 (10th Cir. 2007) (“[T]o

invoke the district court’s Rule 32 fact-finding obligation, the defendant is

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required to make specific allegations of factual inaccuracy.” (internal quotation

marks omitted)).

      Finally, we note that the government offered to continue the hearing so the

parties could challenge the court’s findings in the PSR pertaining to Rodriguez’s

statements, but Rodriguez chose to proceed to sentencing. Because we find no

error in the district court’s reliance upon Rodriguez’s statements to the police in

corroborating the amount of drugs he possessed during the course of his criminal

conduct, we affirm the district court on this issue.

                                  III. Conclusion

      For the reasons set forth above, we AFFIRM.

                                        Entered for the court,

                                        Timothy M. Tymkovich
                                        Circuit Judge




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