                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               JAN 7 1998
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

 v.                                                     Case No. 97-6149
                                                        (D.C. 96-CR-199)
 KENNETH JONES,                                   (Western District of Oklahoma)

               Defendant-Appellant.



                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Defendant Kenneth Jones pled guilty to the crime of possession with intent

to distribute one ounce of cocaine base. A Presentence Report (“PSR”) was filed

      *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
which held Mr. Jones accountable for an additional 19.24 ounces of cocaine base

seized from his co-defendant, which increased his base offense level. The PSR

further recommended an increase of two additional levels for Mr. Jones’s

leadership role in the offense. Mr. Jones filed objections to the PSR. After an

evidentiary hearing, the district court overruled the objections and sentenced Mr.

Jones in conformity with the recommendations in the PSR. Mr. Jones appeals his

sentence, and we affirm.

      We review the district court’s factual findings for clear error. United

States v. Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997); see also 18 U.S.C. §

3742(e) (when reviewing a sentence, the court of appeals shall accept the district

court’s findings of fact unless they are clearly erroneous). Findings are clearly

erroneous when they are “without factual support in the record, or if after

reviewing all the evidence we are left with the definite and firm conviction that a

mistake has been made.” United States v. Beaulieu, 893 F.2d 1177, 1182 (10th

Cir. 1990). “We review the district court’s interpretation and application of the

sentencing guidelines de novo.” Pappert, 112 F.3d at 1078.



                           I. STATEMENT OF FACTS

      The Drug Enforcement Agency (“DEA”) alerted the Tulsa Police

Department to the possibility that a drug courier would arrive in Tulsa on an


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American Airlines flight from Dallas on June 7, 1996. Aplt’s App. at B-5 to -6

(Tr. of Sentencing Hr’g dated April 16, 1997) [hereinafter referred to as

“Transcript”]. When the flight arrived, Tulsa Police Officer Harold Wells located

the courier’s suitcase and conducted a canine search. Id. at B-10. Two dogs

alerted on the suitcase. Id. Officer Wells then placed the suitcase back on the

conveyor belt to send it to the baggage claim area. Id. at B-11.

      At the baggage carousel, a woman named Nikia Hilliard claimed the

suitcase in question. Id. at B-14. Officer Wells testified that Officer Gray saw

Ms. Hilliard converse with Mr. Jones prior to claiming the bag. Id. at B-12 to -

13. Officer Gray overheard Mr. Jones tell Ms. Hilliard to go over to the carousel

and claim the suitcase when he saw the carousel start to move. Id. at B-13 to -14.

As she was waiting for the bag to come around, Ms. Hilliard continued to look at

Mr. Jones, who was standing at a pay phone nearby. Id. at B-14 to -15. When

she claimed the suitcase, Officer Wells approached her, showed her his badge,

and told her that he was a police officer. Id. at B-15. After receiving Ms.

Hilliard’s consent to search the bag, officers found crack cocaine hidden inside a

toy. Id. Officer Wells field-tested the substance and it tested positive for crack

cocaine. Id. at B-16.

      When Officer Wells showed Ms. Hilliard his badge, Mr. Jones left the

baggage claim area, went down an escalator, exited the airport, and began running


                                          3
across the parking lot. Id. Officer Gray apprehended Mr. Jones and asked him if

he knew Ms. Hilliard. Id. He stated that he did not know her. Id. at B-17.

      Officer Wells, in the meantime, had escorted Ms. Hilliard to an airport

security office. She stated that Mr. Jones had given her the bag in Los Angeles

and instructed her to take it to Tulsa, at which time she was to surrender it to him

and be paid one thousand dollars. Id. When asked what Mr. Jones was wearing,

she stated that he was wearing khaki pants and a white shirt, which is what he was

wearing when Officer Gray apprehended him at the airport. Id.

      When Officer Gray brought Mr. Jones to the security office, Ms. Hilliard

identified him as the man who had instructed her to bring the crack cocaine to

him in Tulsa. Id. at B-17 to -18. Mr. Jones continued to deny knowing her,

telling the officers that Ms. Hilliard was a friend of his cousin’s. Id. at B-18.

Eventually, however, when officers gave Mr. Jones and Ms. Hilliard an

opportunity to converse with one another, Mr. Jones began speaking to Ms.

Hilliard in an affectionate tone, telling her that he loved her, that things would be

alright, and that he would take care of her. Id. at B-20. Both Mr. Jones and Ms.

Hilliard were arrested and charged with possession with intent to distribute crack

cocaine. Id. at B-21. Ms. Hilliard pleaded guilty to these charges in state court.

Id. at B-22.




                                           4
      Mr. Jones failed to appear for his hearing on those charges in state court.

Id. Mr. Jones, however, had been under investigation since February 1996. Id. at

B-40. In July 1996, a controlled buy of one ounce of crack cocaine was arranged

between Mr. Jones and a cooperating witness. Id. That is the crime for which

Mr. Jones was charged in a one-count information, and to which he pled guilty in

the instant case.

      A sentencing hearing was held on April 16, 1997. The district court

sentenced Mr. Jones to a term of imprisonment of 235 months and a five-year

term of supervised release. Id. at B-67. Mr. Jones raises several points of error

arising out of his sentencing hearing. We turn now to a discussion of these

points.



                                 II. DISCUSSION

A. Enhancement for the Additional 19.24 Ounces

      1. Weight and Nature of the Seized Contraband

      Mr. Jones argues that there was a lack of reliable evidence as to the weight

and nature of the substance found within the suitcase. As to the nature of the

substance, Officer Wells testified that he field-tested it immediately after it was

seized and that it tested positive for crack cocaine. “The government need not

introduce scientific evidence to prove the identity of a substance.” United States


                                          5
v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th Cir. 1990). For sentencing

purposes, the positive field test was sufficient evidence for the district court to

conclude that the substance was, in fact, cocaine base.

      As to the weight, the government need only prove the weight of a

controlled substance by a preponderance of the evidence. See United States v.

Deninno, 29 F.3d 572, 580 (10th Cir. 1994). In order to establish the weight of

the crack cocaine, the government introduced Exhibit 4, an inventory report

prepared by the Tulsa Police Department. See Aplt’s App. at B-71. The report

contains a list of everything seized from the bag Ms. Hilliard claimed at the

airport. The report lists the weight in grams of each crack rock found in the bag.

Mr. Jones argues that this report lacks sufficient indicia of reliability because it

does not contain a signature. However, sentencing proceedings are not governed

by the Federal Rules of Evidence. Beaulieu, 893 F.2d at 1179. The district court

found that, on its face, the inventory report was sufficiently reliable and noted

that the rule pertaining to authentication of documents was not applicable to the

sentencing proceeding. Transcript at B-54. We conclude that the trial court did

not err in finding that the suitcase contained 19.24 ounces 1 of crack cocaine.




      1
       The inventory report listed the weight in terms of grams. The PSR converted the
545.47 grams into 19.24 ounces. See Aplt’s App. at A-4.

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      2. Attribution of the Seized Contraband to Mr. Jones

      Mr. Jones argues that the district court erred when it attributed to him the

crack seized in Ms. Hilliard’s suitcase for sentencing purposes. We disagree.

There is ample factual support in the record on which to base a finding that Mr.

Jones was involved with Ms. Hilliard’s trafficking activity. Ms. Hilliard stated

that Mr. Jones gave her the suitcase and instructed her to take it to Tulsa.

Furthermore, there is evidence tending to corroborate Ms. Hilliard’s statement.

Mr. Jones was present at the baggage claim area during the interdiction. He

conversed with Ms. Hilliard at the airport, and he directed her to claim the

suitcase when the carousel started to move. As Ms. Hilliard was waiting to claim

the suitcase, she continued to look back at Mr. Jones. When Officer Wells

approached Ms. Hilliard, Mr. Jones fled. After he was apprehended, Mr. Jones

first denied knowing Ms. Hilliard; however, in the airport security office, he

spoke with Ms. Hilliard in a manner that suggested they were more than mere

acquaintances. In sum, we conclude that the district court committed no error

when it attributed the crack cocaine in Ms. Hilliard’s suitcase to Mr. Jones for

sentencing purposes.




                                          7
B. Enhancement for the Role of Organizer

      Pursuant to U.S.S.G. § 3B1.1(c), the district court added two levels to Mr.

Jones’s base offense level for his leadership role in the offense. According to §

3B1.1(c), the sentencing court may increase the base offense level by two levels

“[i]f the defendant was an organizer, leader, manager, or supervisor in any

criminal activity” that did not involve five or more people or was not otherwise

extensive. U.S.S.G. Manual § 3B1.1(c) (1997). “We have held that section

3B1.1(c) is satisfied upon a mere showing that the defendant exercised any degree

of direction or control over someone subordinate to him in the distribution

scheme.” United States v. Baez-Acuna, 54 F.3d 634, 639 (10th Cir. 1995)

(internal quotation marks omitted).

      As already discussed, Ms. Hilliard stated that Mr. Jones directed her to

travel with the suitcase from California to Oklahoma and to deliver it to him

there. Mr. Jones argues the district court erred when it relied on this

uncorroborated hearsay statement of Ms. Hilliard to conclude that Mr. Jones

played a leadership role in the offense. For the reasons stated above, we find that

Ms. Hilliard’s statement was, indeed, corroborated, and therefore it contained

sufficient indicia of reliability. See Beaulieu, 893 F.2d at 1181 (stating that

reliable hearsay may be used at sentencing to determine appropriate punishment).




                                          8
Thus, we conclude the district court did not err when it enhanced Mr. Jones’s

sentence for his role as organizer of the criminal enterprise at issue.

      Accordingly, we AFFIRM the district court’s decision. The mandate shall

      issue forthwith.



                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




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