               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0079n.06

                                         No. 17-1210

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Feb 15, 2018
UNITED STATES OF AMERICA,                      )                          DEBORAH S. HUNT, Clerk
                                               )
        Plaintiff-Appellee,                    )         ON APPEAL FROM THE
                                               )         UNITED STATES DISTRICT
v.                                             )         COURT FOR THE EASTERN
                                               )         DISTRICT OF MICHIGAN
BERNARDO SANTANA,                              )
                                               )
        Defendant-Appellant.                   )                 OPINION
                                               )
                                               )


Before: MOORE, COOK, and McKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge.                 This case arises from a dispute at

sentencing regarding the size of Defendant-Appellant Bernardo Santana’s role in a heroin-

trafficking conspiracy. Santana, who had pleaded guilty and admitted to helping traffic between

one and three kilograms of heroin, claimed that he was a first-time offender and little-used

middleman who ought to be dealt with leniently; the Government, citing the grand-jury

testimony of two cooperating defendants, disagreed. Santana now challenges the district court’s

reliance on those two cooperators’ statements in overruling Santana’s objections and sentencing

him to 180 months’ imprisonment. Reviewing the district court’s conclusions deferentially, as

we must on a challenge like this one, we AFFIRM Santana’s sentence.
No. 17-1210, United States v. Santana


                                     I. BACKGROUND

        Bernardo Santana was born in the Dominican Republic in 1965 and became a naturalized

U.S. citizen in 1997, living in and around Detroit. Presentence Investigation Report (“PSR”) at

8–9.1 He reports having returned to the Dominican Republic to reside in 2006, id. at 9, and there

is no evidence to the contrary. Prior to his involvement in this case, Santana had no criminal

record. Id. at 8.

        On June 28, 2006, members of the U.S. Drug Enforcement Agency (“DEA”) arrested a

Detroit-area drug distributor. CD-1 Grand Jury Testimony at 23. (The parties have dubbed this

distributor “CD-1” to protect his identity, and we accordingly do as well.) After electing to

cooperate with the Government’s investigation, CD-1 revealed, among other relevant details,

information that led to the arrest of a second Detroit-area drug distributor (“CD-2”). DEA agents

arrested CD-2 on June 24, 2008, discovering approximately two kilograms of heroin and over a

million dollars in cash at his residence. CD-2 Grand Jury Testimony at 5. CD-2 also agreed to

cooperate with the Government.

        On October 22, 2008, CD-2 testified to a grand jury about a heroin-importation operation

of which he had been a customer. CD-2 Grand Jury Testimony at 2. He described a scheme

whereby a courier would deliver between a half-kilogram and four kilograms of heroin, usually

(though not strictly) once per month, and generally calling a day or two before to signal the


        1
        Like several other documents at issue in this case, Santana’s PSR was sealed and lacks
both a public docket number and sequential page-identification numbers. Where such
information is lacking, this opinion cites only the relevant page numbers within the sealed
documents themselves.


                                               2
No. 17-1210, United States v. Santana


impending delivery. Id. at 9–10; see also id. at 39 (explaining that lapses between deliveries

could go “two months, three months,” or even “six months”). CD-2 stated that the heroin was

often concealed in shoes, id. at 17, though at times it was concealed beneath clothes, id. at 26.

CD-2 also explained that a regular courier (also named Bernardo, it turns out, see id. at 28–29)

was at times accompanied by another person who acted as an interpreter, id. at 21–22, and that

two other people also at times came to deliver heroin or collect money, id. at 28–29.

       Importantly for this case, CD-2 identified one of the people who occasionally collected

money as “the main guy’s wife,” and CD-2 in turn identified “the main guy” as Bernardo

Santana. Id. at 29, 31; see also id. at 33–34. CD-2 reported meeting Santana through “an

acquaintance . . . named Terrance Chambers” in 1998 or 1999 and described Santana as “the

boss of” the various couriers. Id. at 31; see also id. at 34. CD-2 said that he had met Santana in

Detroit, but explained that Santana was Dominican and had moved back to the Dominican

Republic, choosing to oversee the trafficking operation from there. Id. at 31–34. CD-2 further

testified that he had initially received “small amounts” of heroin from Santana, id. at 37, which

he had tested in the market before deciding to become a regular buyer, id. at 38. All in all, CD-2

estimated, he had received more than 100 kilograms of heroin from Santana’s organization over

the past decade. Id. He guessed that Santana’s wife had come to collect money from him “[i]n

excess of fifty times.” Id. at 39.

       In early 2009, using a wiretap, DEA agents learned that Santana had been in cell-phone

contact from the Dominican Republic with two other heroin buyers identified by CD-1 and CD-

2: Dwayne Toland and Burton Norfleet. PSR at 6. Speaking with each by phone, Santana


                                                3
No. 17-1210, United States v. Santana


admits, he agreed to ensure that Toland and Norfleet received between one and three kilograms

of heroin. PSR at 6; Addendum to PSR at 2; R. 38 (Def.’s Sentencing Mem. at 6–7) (Page ID

#126–27); see also R. 39 (Gov’t Sentencing Mem. at 3–5) (Page ID #220–22). In April 2009,

DEA agents seized heroin, trafficking paraphernalia, and guns from Toland’s house, as well as

over $133,000 that they found hidden in a vehicle that had arrived and been parked in Toland’s

garage the night before. R. 39 (Gov’t Sentencing Mem. at 4–5) (Page ID #221–22).

       CD-1, meanwhile, testified to a grand jury on October 7, 2009. CD-1 Grand Jury

Testimony at 2. Like CD-2, CD-1 testified to knowing Terrance Chambers, whom CD-1 also

identified as having introduced him to Santana. Id. at 8–9. (CD-1 believed that the introduction

had occurred in 2006, and though he did not recall “exactly what month,” he remembered that “it

was warm outside” at the time. Id. at 9.) Again like CD-2, CD-1 told the grand jury that Santana

was from the Dominican Republic and had returned there, id. at 9, 37, and stated that he too had

initially received “samples” from Santana, id. at 9–10. He likewise reported that he “didn’t see”

Santana any more after one or two initial deliveries, id. at 15, 39, that he instead received

monthly deliveries from couriers (the principal one of whom used an interpreter) who would call

in advance of delivery, id. at 15–16, and that he would often give money to Santana’s wife to pay

for the heroin, id. at 14. All in all, CD-1 estimated that he had received “between 25 to 30”

kilograms of heroin from Santana’s operation during the year or so in which he had purchased

from them. Id. at 23.

       CD-1 further testified that he was aware that CD-2 was also a Detroit-area customer of

Santana’s, and that Santana would at times brush off CD-2’s complaints about quality by noting


                                               4
No. 17-1210, United States v. Santana


that CD-1 was “having no problem.” Id. at 24. CD-1 stated that the heroin he received through

Santana’s operation was generally sewn directly into clothes, id. at 17–18, but he acknowledged

that he had also received heroin concealed in “[t]he heel of a shoe,” id. at 30. CD-1 reported

that, after he was arrested, one of Santana’s couriers had occasionally stopped by his house

asking for him, but that the courier did not return after CD-1 told his grandmother to explain that

he had been “locked up.” Id. at 32.

       On March 29, 2011, a grand jury indicted Santana on one count of conspiring to possess

heroin with intent to distribute it and conspiring to distribute heroin, in violation of 21 U.S.C.

§§ 841(a)(1),2 846. In August 2014, Santana was taken into custody in the Dominican Republic,

and in February 2015, he was extradited to the United States. R. 38 (Def.’s Sentencing Mem. at

5) (Page ID #125). He agreed to plead guilty, see R. 22 (Plea Agreement) (Page ID #62–69), but

disputed the Government’s asserted drug quantity of more than 90 kilograms and the

Government’s assertion that he qualified as a manager/supervisor, contending instead that he

qualified for a reduction (even below the otherwise-applicable statutory minimum) under the

U.S. Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) §§ 2D1.1(b)(17), 5C1.2, otherwise

known as the “safety valve,” see R. 22 (Plea Agreement at 3, 10) (Page ID #64, 71).

       The Government filed a sentencing memorandum reaffirming its view that Santana

should be found responsible at sentencing “for at least 90 kilograms of heroin” and that he

“should be categorized as a manager/supervisor under USSG § 3B1.1(b).”              R. 39 (Gov’t
       2
        Violations of 21 U.S.C. § 841(a) involving “1 kilogram or more of a mixture or
substance containing a detectable amount of heroin” carry a mandatory minimum of 10 years’
imprisonment and a statutory maximum of life in prison. 21 U.S.C. § 841(b)(1)(A).


                                                5
No. 17-1210, United States v. Santana


Sentencing Mem. at 5) (Page ID #222). It referenced in its memo, and separately provided to the

district court, the transcripts of CD-1’s and CD-2’s grand-jury testimony. See id. at 3 & n.1

(Page ID #220). The Government also noted that the probation department, while agreeing with

regard to drug quantity, had concluded that Santana’s sentence should be even higher because he

qualified, in the probation department’s view, as an “organizer/leader.” Id. at 5 (Page ID #222).

The Government accordingly calculated Santana’s sentencing range as 235–293 months of

imprisonment, while noting that the probation department had scored the range as 262–327

months of imprisonment.

       Santana filed a sentencing memorandum disputing these allegations and calculations, R.

38 (Def.’s Sentencing Mem. at 1) (Page ID #121), and maintained his objections to any

culpability beyond serving as a middleman for Burton and Norfleet for between one and three

kilograms of heroin, Addendum to PSR at 1–7. In his sentencing memorandum, Santana argued

that he “always worked at low paying jobs, never had any substantial property and assets,” and

“during the time period of the conspiracy, lost his house, car, and family because he had no

money.” R. 38 (Def.’s Sentencing Mem. at 4–5) (Page ID #124–25). Santana further stated that

if the Government were to “follow the money here and in the Dominican Republic,” it would

find that “in addition to losing his house and car, once in the Dominican Republic, Mr. Santana

lived in a small rented dwelling, had no car, [and] worked for his family’s oil company at

minimum wages.”      Id. at 5 (Page ID #125).      Instead, he argued, the only evidence the

Government had was “the co-defendants’ version given in order to save themselves.” Id. In

support of his objections, along with fourteen letters on his behalf, Santana attached


                                               6
No. 17-1210, United States v. Santana


documentation of the loss of his house and car, as well as documentation that backed up his

assertions regarding his employment and residence in the Dominican Republic. Id. at 11–18,

90–95 (Page ID #131–38, 210–15). Santana thus argued that “his role in the conspiracy . . . to

act as a middleman on behalf of Mr. Norfleet and Mr. Toland” was “consistent with all of the

physical evidence and the financial lifestyle of Mr. Santana.” Id. at 6 (Page ID #126). He

proposed 57–71 months of imprisonment as his proper Guidelines range and requested credit of

twenty-nine months “for time served, in addition to a substantial variance because of the

International Human Rights Act violations” that he asserted he had suffered during the six

months that he spent in custody in the Dominican Republic.3 Id. at 1, 9 (Page ID #121, 129).

       At sentencing, both Santana and the Government initially relied primarily on their

sentencing memoranda, and the district court concluded that it “agree[d] with the government

with respect to both the quantity and the leadership role”—determining, in other words, that

Santana was responsible for a drug quantity of more than 90 kilograms and that he qualified for a

three-level enhancement as a manager/supervisor.4 R. 48 (Sentencing Tr. at 5) (Page ID #370);

see also id. at 4 (Page ID 369).


       3
         Santana had earlier in his memorandum described to the district court having been
“forced to sleep on the concrete floor” near a “hole in the ground for bathroom purposes”
alongside four other “men in a three person cell,” with “no air conditioning even though the
temperature in the facility would get very hot” and “lead paint falling from the walls” during
these six months of custody in the Dominican Republic. R. 38 (Def.’s Sentencing Mem. at 5–6)
(Page ID #125–26). Santana does not discuss that issue on appeal, however, and therefore we do
not address it further.
       4
         Technically, the Government used the phrase “manager/organizer,” R. 48 (Sentencing
Tr. at 5) (Page ID #370), which appears to meld “manager/supervisor” (a three-level increase)
with “organizer/leader” (a four-level increase), see U.S.S.G. § 3B1.1(a)–(b). In full context,

                                               7
No. 17-1210, United States v. Santana


       Santana’s lawyer then asked to be heard and, with the district court’s permission,

reiterated Santana’s arguments against the heightened drug quantity and the manager/supervisor

enhancement, id. at 6–7 (Page ID #371–72), pointing both to the “tremendous benefits” that the

two cooperating defendants had received for implicating an ostensible “kingpin” like Santana

and to Santana’s financial woes, employment situation, and lifestyle during the relevant time

period, id. at 8 (Page ID #373). “If he, in fact, was supposed to be the kingpin of a conspiracy

that took place involving over 100 kilos of heroin and getting hundreds of thousands, maybe

millions of dollars crossing his hands,” Santana’s lawyer asked, “where is that?” Id. at 8–9

(Page ID #373–74). “When he was arrested, he was living in an apartment that probably cost

three, $400 a month, working menial jobs for the gas and oil company that was down in the

Dominican Republic,” Santana’s attorney continued. “Again, people don’t live like that if

they’re kingpins involving millions of dollars.” Id. at 10 (Page ID #375).

       The district court then asked to hear from the Government, which likened Santana’s

“claim that this only involved between 1 and 3 kilograms of heroin” to “defendants who claim

that they just happen to be the unluckiest person in the world to commit the crime only when

investigators are looking.”   Id. at 13 (Page ID #378).      The Government further clarified,

however, that “this was not a financial-based investigation,” and that, because “Santana was in

the Dominican Republic,” there was “less information than” would have been available “had Mr.

however, given the existing disagreement between the Government and the probation department
and the applicable enhancements, the Government’s statement “that Mr. Santana is accurately
classified as a, at least a manager/organizer, which is a three-point bump, which the government
scored him in the plea agreement,” makes clear that the Government meant
“manager/supervisor.” See R. 48 (Sentencing Tr. at 5) (Page ID #370).


                                                8
No. 17-1210, United States v. Santana


Santana been living in the Detroit metropolitan area during the right period.” Id. at 15 (Page ID

#380). The Government added that “even if it is true that Mr. Santana was not making a lot of

money, the fact that he was perhaps a bad businessman doesn’t take away from the seriousness

of the crime,” id. at 16 (Page ID #381), given the dangers of heroin and the evidence provided by

the cooperating defendants, id. at 16–17 (Page ID #381–82).

       In pronouncing its sentence, the district court observed:

       This case is a little puzzling only in that it’s hard to understand why Mr. Santana
       was living in the conditions that he was if he was this big drug kingpin, but the
       evidence that he was, in fact, the leader, organizer, et cetera, is very substantial.
       Whenever we have cooperating witnesses, they have something to gain by it, but
       here everyone seems to agree that Mr. Santana was the boss, and that the amounts
       were far greater than the 1 to 3 kilos that he insists upon.

Id. at 19 (Page ID #384). The court ultimately decided to “vary downward slightly,” id. at 20

(Page ID #385), imposing a sentence of 180 months’ imprisonment plus five years of supervised

release, id. at 21 (Page ID #386). Santana now appeals his sentence.

                                        II. DISCUSSION

       Santana argues that the cooperating defendants’ statements regarding his role in the

heroin-trafficking conspiracy were insufficiently reliable, and thus that his due-process rights

were violated when the district court imposed a sentence in reliance on those statements. For the

reasons that follow, giving required deference to the district court, we disagree and instead

AFFIRM Santana’s sentence.




                                                9
No. 17-1210, United States v. Santana


A. Standards of Review

       Trial judges have “wide discretion . . . in considering the evidence submitted at

sentencing.” United States v. Silverman, 976 F.2d 1502, 1508 (6th Cir. 1992) (en banc). When

finding facts relevant to sentencing determinations, they need use only a preponderance-of-the-

evidence standard. See, e.g., United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006). They are

not bound to rules of evidence in such proceedings, and thus hearsay is permissible. See, e.g.,

United States v. Darwich, 337 F.3d 645, 656 (6th Cir. 2003). Moreover, they may consider

hearsay “without any confrontation requirement.” Silverman, 976 F.2d at 1511. But even so, we

have made clear, “due process requires that some evidentiary basis beyond mere allegation in an

indictment be presented to support consideration of such conduct as relevant to sentencing.” Id.

at 1504 (quoting United States v. Smith, 887 F.2d 104, 108 (6th Cir. 1989)).5

       We have also provided some guidance on how much evidentiary basis due process

requires. “As a matter of due process,” we have explained, “factual matters may be considered

as a basis for sentence only if they have some minimal indicium of reliability beyond mere

allegation.” Id. (citation and punctuation omitted). Similarly, “hearsay is permissible at a

sentencing hearing so long as it has some minimum indicia of reliability.” Darwich, 337 F.3d at

656. We have called this minimum-indicia (or “sufficient indicia”) standard “a relatively low
       5
        The Guidelines, it bears noting, impose this limit themselves. See U.S.S.G. § 6A1.3(a)
(“In resolving any dispute concerning a factor important to the sentencing determination, the
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.”). “In Silverman,” however, we “concluded that this standard was
also required as a matter of due process.” United States v. Moncivais, 492 F.3d 652, 659 (6th
Cir. 2007).


                                                10
No. 17-1210, United States v. Santana


hurdle.” United States v. Greene, 71 F.3d 232, 235 (6th Cir. 1995). But the question of how we

review a district court’s application of this standard for purposes of finding facts at sentencing

presents—as the parties’ divergent treatment of the issue reveals, compare Appellant’s Br. at 13–

14, with Appellee’s Br. at 7—a small knot to untangle. In other words, what kind of review do

we apply to a sentencing court’s (at least implicit) determination that there were sufficient indicia

of reliability to meet the mandates of due process?

       To begin, it is worth taking account of some nearby signposts. It is well established that

we “review[] the district court’s application of the [U.S.S.G.] de novo and the district court’s

findings of fact at sentencing for clear error.” United States v. Tocco, 306 F.3d 279, 284 (6th

Cir. 2002), cert. denied, 539 U.S. 926 (2003). Accordingly, the quantity of drugs attributable to

a defendant at sentencing is, as a factual question, reviewed for clear error. See, e.g., United

States v. Young, 553 F.3d 1035, 1051 (6th Cir. 2009). Our review of a district court’s imposition

of a leadership-role sentencing enhancement under U.S.S.G. § 3B1.1, meanwhile, is simply

“deferential,” given the “factual nuances” involved in the question. United States v. Washington,

715 F.3d 975, 982–83 (6th Cir. 2013).6 And “[a] due process claim raising a mixed question of

law and fact is reviewed de novo.” United States v. Sanders, 452 F.3d 572, 576 (6th Cir. 2006).

       At the same time, turning to the central question here, we have not been entirely

consistent or precise when it comes to the standard for evaluating challenges to the reliability of
       6
         We have, it bears noting here, found the qualifications for an “organizer” enhancement
satisfied where a defendant admitted “that he set up a cocaine transaction,” United States v.
Williams, 894 F.2d 208, 214 (6th Cir. 1990), and we have likewise upheld such an enhancement
where it appeared possible that “someone else was also a leader of [a] conspiracy” on the
grounds that “more than one person can be an organizer or leader,” Washington, 715 F.3d at 984.


                                                 11
No. 17-1210, United States v. Santana


statements introduced at sentencing, which in turn support some of the factual determinations

just discussed. At times, we have characterized the sufficient-indicia test as a freestanding

inquiry sufficient to pass clear-error review, such that a reviewing court need merely ask whether

the sufficient-indicia test was met to determine whether there was any clear error. See United

States v. Reid, 357 F.3d 574, 582 (6th Cir. 2004); United States v. Gessa, 57 F.3d 493, 496 (6th

Cir. 1995). At other times, we have instead stated the question as whether a district court clearly

erred in determining that the minimum-indicia test was met. See United States v. Melesio, 532 F.

App’x 596, 599 (6th Cir. 2013); United States v. Manis, 344 F. App’x 160, 164 (6th Cir. 2009);

United States v. Hunt, 487 F.3d 347, 350, 353 (6th Cir. 2007). Still other times, we have stated

the question as whether a district court abused its discretion in judging statements reliable. See

United States v. Bates, 315 F. App’x 591, 594 (6th Cir. 2009); United States v. Moncivais, 492

F.3d 652, 658 (6th Cir. 2007). And we have added that “[t]o the extent that [a] Defendant’s

claims sound in due process, we review them de novo.” Moncivais, 492 F.3d at 658. In light of

this thicket of standards, it is understandable that the parties themselves either elide or disagree

on the relevant standard to apply here.

       To clarify: when facing a due-process challenge (like Santana’s) to a district court’s

reliance on statements for the purposes of finding facts at sentencing, we review the district

court’s reliance on such statements—that is, its conclusion that those statements had sufficient




                                                12
No. 17-1210, United States v. Santana


indicia of reliability—for clear error.7 This standard accords with our circuit’s rule for stare

decisis, see Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), as

clear-error review appears to have been the standard used in the earliest published case on point

after our circuit clarified en banc the broader doctrine encompassing this question in Silverman.

See United States v. Gibson, 985 F.2d 860, 864 (6th Cir. 1993) (observing, in the context of

defendant’s challenge to sentencing court’s reliance on inculpatory statements incorporated into

PSR, that “we review the district court’s factual determination concerning the reliability of

witness testimony under the clearly erroneous standard”). It also avoids the potential incongruity

of applying clear-error review to an obviously factual question like the quantity of drugs

attributable to a defendant while applying some other standard to statements that entirely

undergird, as here, that determination.8 And it recognizes the deference we accord trial judges

on such fact-bound issues, see, e.g., Silverman, 976 F.2d at 1508–09, in close harmony with our

recent cases applying an abuse-of-discretion standard.9


       7
        Of course, what due process more generally requires—for example, whether a given
practice or procedure violates due process—remains a legal question that receives de novo
review. But that is not the type of claim that Santana presses here.
       8
         Perhaps seeking to avoid such incongruity, the Government here construes Santana’s
challenge as targeting the district court’s calculation of the quantity of drugs attributable. See,
e.g., Appellee’s Br. at 6–7. But while the two questions ultimately converge here, it is
nevertheless worth formally noting that Santana does not characterize his argument that way.
Instead, he argues that “his due process rights were violated when the sentencing judge adopted
the government’s relevant conduct argument” by relying on “unreliable hearsay from
cooperating sources which the government was unable to corroborate.” Appellant’s Br. at 12.
We accordingly focus our analysis on that framing.
       9
        Indeed, the conceptual gap between abuse of discretion and clear error can appear
vanishingly small. Compare, e.g., Penney v. United States, 870 F.3d 459, 461 (6th Cir. 2017)

                                                13
No. 17-1210, United States v. Santana


       With that established, we note that a finding is clearly erroneous if it leaves us “with the

definite and firm conviction that a mistake has been committed.” Darwich, 337 F.3d at 663

(quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). On the other hand, “[i]f the

district court interprets the evidence in a manner consistent with the record, we are required to

uphold its decision even if we would have reached the opposite conclusion.” Id.

B. Santana’s Sentence

       In light of the foregoing, Santana’s challenge hinges on whether the district court clearly

erred in deeming CD-1’s and CD-2’s grand-jury testimony sufficiently reliable to support the

district court’s factual findings. See, e.g., Hunt, 487 F.3d at 353; Appellant’s Br. at 12, 17–25.

We conclude that the district court did not clearly err, and thus affirm Santana’s sentence.

       At the outset, we note briefly two arguments that the Government advances to try to

avoid or change this question altogether: First, it argues that “the district court was permitted to

rely on the PSR because Santana offered nothing other than bare denials.” Appellee’s Br. at 7.

Second, it argues that the standard of review should be plain error, because “Santana . . . never

raised a due process claim below.” Appellee’s Br. at 12. Neither argument is compelling.




(“An abuse of discretion occurs when a district court commits a clear error of judgment, such as
applying the incorrect legal standard, misapplying the correct legal standard, or relying upon
clearly erroneous findings of fact. We will only find an abuse of discretion when our review
leaves us with a definite and firm conviction that the trial court committed a clear error of
judgment.” (citations and quotation marks omitted)), with Anderson v. Bessemer City, 470 U.S.
564, 573 (1985) (“[A] finding is ‘clearly erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” (citation omitted)).


                                                14
No. 17-1210, United States v. Santana


        First, while the Government is right that “[w]hen a defendant fails to produce any

evidence to contradict the facts set forth in the PSR, a district court is entitled to rely on those

facts when sentencing the defendant,” United States v. Geerken, 506 F.3d 461, 467 (6th Cir.

2007), that is not what happened here. Though Santana did not produce a smoking gun to vitiate

the cooperating witnesses’ testimony altogether, he pointed to facts to call into question the

veracity of those accounts: the cooperating witnesses’ motives to lie, as well as the incongruity

between implicating Santana as a kingpin and Santana’s evidently pauperized financial situation,

employment, and lifestyle. See R. 38 (Def.’s Sentencing Mem. at 4–6, 11–18, 90–95) (Page ID

#124–26, 131–38, 210–15); see also R. 48 (Sentencing Tr. at 6–10) (Page ID #371–75).

Moreover, it is foundationally the Government’s burden, where contested, to “establish[] the

[relevant] enhancement factors by a preponderance of the evidence,” United States v. Feinman,

930 F.2d 495, 500 (6th Cir. 1991), and we have many times before treated a defendant’s

challenge to the reliability of statements used against him at sentencing as being sufficient to

preserve that question for more than plain-error review, see, e.g., Bates, 315 F. App’x at 594

(reviewing reliability of hearsay statements introduced through law-enforcement testimony);

Hunt, 487 F.3d at 352 (reviewing reliability of co-defendants’ hearsay statements introduced

through law-enforcement testimony); Moncivais, 492 F.3d at 658 (reviewing reliability of proffer

statements challenged for lack of reliability). Because Santana challenged the reliability of the

statements set forth against him, we review the district court’s conclusion that those statements

were in fact reliable.




                                                15
No. 17-1210, United States v. Santana


       Second, plain-error review does not apply here.           Although “failure to raise a

constitutional challenge before the district court” does, as the Government notes, “result[] in

plain error review,” United States v. Doxey, 833 F.3d 692, 709 (6th Cir. 2016), we have not

required defendants to “utter the words ‘due process’” to preserve such challenges to their

sentences. See Darwich, 337 F.3d at 656 (quoting United States v. Strayhorn, 250 F.3d 462, 467

(6th Cir. 2001)).    Rather, where a defendant clearly challenges a judge’s fact-finding at

sentencing, a due-process challenge is sufficiently preserved. See id. Here, as in Darwich,

Santana “consistently objected, both in writing and orally, to the PSR’s computation of a specific

drug amount,” id., challenging the reliability of CD-1’s and CD-2’s testimony in both his

sentencing memorandum and at the sentencing hearing. See R. 38 (Def.’s Sentencing Mem. at

4–6) (Page ID #124–26); R. 48 (Sentencing Tr. at 6–10) (Page ID #371–75). Plain-error review

is not applicable.

       Nevertheless, given our still-deferential standard of review, the Government has the

better side of this case on the merits. Santana argues that the district court’s reliance on “two

large scale drug dealers trying to curry favor with the government” was impermissible given

their motives to lie and the lack of “a scintilla of corroboration” to support their stories. See

Appellant’s Br. at 23. But as the Government points out, see Appellee’s Br. at 9–11, Santana

overlooks the fact that these two witnesses’ stories corroborated each other. Statements by

different cooperating witnesses are sufficiently reliable, we have explained, when “given

independently” and some relatively lengthy amount of time apart, when they both “corroborate

each other” in at least some relevant details, and when those statements also match corroborative


                                               16
No. 17-1210, United States v. Santana


circumstantial evidence that can be gleaned from the defendant’s personal conduct. See Hunt,

487 F.3d at 353 (finding sufficient indicia of reliability where statements by cooperating

witnesses were given “months apart,” both “includ[ed] such details as the fact that one kilogram

of cocaine supplied by [the defendant] was returned because it was of poor quality,” and both

matched already-established conduct by the defendant); see also Moncivais, 492 F.3d at 659

(deeming a co-defendant’s hearsay statement sufficiently reliable based in part on its having

been “richly detailed” and “both internally and externally consistent”).

       Here, the grand-jury testimony of CD-1 and CD-2 meet these demands. The two sets of

statements, given under oath and under penalty of perjury, occurred nearly a year apart. CD-1

Grand Jury Testimony at 2; CD-2 Grand Jury Testimony at 2. The two cooperating witnesses

told very similar stories about Santana’s role in the trafficking operation, including with regard

to such details as Santana’s nationality and residences, the use of shoes, the timing of deliveries,

the provision of samples, Santana’s wife’s role in the operation, the introduction from Terrance

Chambers, and Santana’s main courier (including that courier’s use of an interpreter). Compare

CD-1 Grand Jury Testimony at 8–10, 14–16, 24, 30, 37, with CD-2 Grand Jury Testimony at 14–

17, 21–22, 24, 29, 31–34, 37–38.10 And their two accounts fit closely with Santana’s preexisting



       10
         Santana does point to one potential inconsistency that is worth discussing briefly: he
cites a DEA report that ascribes to CD-1 the claim that CD-1 met with Santana in Michigan in
March 2007 and that Santana came to CD-1’s home after CD-1’s 2007 arrest—a timeline that is
inconsistent with Santana’s “uncontested” assertion that he returned to the Dominican Republic
in 2006. Appellant’s Br. at 7 & n.3; see also id. at 21–22. But there are a few reasons that
Santana’s argument fails. First, “[i]n general, the appellate court should have before it the record
and facts considered by the District Court,” United States v. Barrow, 118 F.3d 482, 487 (6th Cir.
1997), and therefore our common practice in a challenge like this one is to “review[] the

                                                17
No. 17-1210, United States v. Santana


admission that he arranged the sale of between one and three kilograms of heroin—an unlikely

amount for a one-off transaction.      Cf. Manis, 344 F. App’x at 166 (“In this case, Manis

completely ignores the corroborative force of his own statements . . . .”). In light of all that, we

cannot say that the district court clearly erred in treating CD-1’s and CD-2’s statements as

sufficiently reliable.

        Nor do CD-1’s and CD-2’s potential motives to lie render their testimony insufficiently

reliable. Santana cites Lee v. Illinois, 476 U.S. 530 (1986), for example, for “the time-honored

teaching that a codefendant’s confession inculpating the accused is inherently unreliable,” id. at

546, but we have turned aside that exact argument and citation before, see Moncivais, 492 F.3d


evidence properly before the district court at sentencing,” see, e.g., United States v. Currier, 473
F. App’x 469, 473 (6th Cir. 2012). Because it does not appear that the DEA report in question
was before the district court as evidence at sentencing, we should hesitate before finding clear
error based on information that the district court could not have even taken into account. But
even acknowledging that we might take judicial notice of evidence showing a clear inaccuracy or
miscarriage of justice, cf. Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007,
1012–13 (6th Cir. 2003) (discussing supplementation of the record under a court’s equitable
powers), this is not such a case. Rather, the probative value of Santana’s asserted inaccuracy is
quite small. There is good reason to believe, for example, that the notes in the DEA report
reflect a misperception of what CD-1 said: there were “two Bernardo[]s” allegedly involved in
this trafficking operation, CD-2 Grand Jury Testimony at 29, and CD-1’s testimony to the grand
jury indicates that CD-1 rarely saw Santana after an initial meeting in 2006 while suggesting
instead that it was the other Bernardo (the courier) whom CD-1 saw regularly at his home and
who came by CD-1’s house after CD-1 was arrested. See CD-1 Grand Jury Testimony at 9, 15,
31–32, 37. The report, in other words, may have mixed up the two Bernardos—an
understandable mistake if, for example, CD-1’s recounting of these particular details was
imprecise. But even if we were to assume that the report accurately reflects what CD-1 told the
DEA, that hardly renders CD-1’s testimony unreliable. Though the Government never
contradicted Santana’s assertion that he had moved back to the Dominican Republic, we do not
see why Santana’s post-2006 residence in the Dominican Republic precludes the possibility that
Santana could have gotten on a plane and made a brief trip to Michigan. In short, this purported
inconsistency—if even a genuine inconsistency it is—does not change the result of this case.


                                                18
No. 17-1210, United States v. Santana


at 659. Rather, as we explained there, “co-conspirators’ hearsay statements are admissible at

sentencing, notwithstanding the fact that such statements may be ‘suspect’ on account of the co-

conspirators’ ‘explicit or implicit desire to secure favorable treatment from the police.’” Id.

(quoting Hunt, 487 F.3d at 352–53). Such statements, while potentially self-serving, are not, we

have made clear, “inherently unreliable” or “presumptively inadmissible at sentencing.” Id. at

660.

       None of this means that our precedents give district courts a blank check to accept

whatever they hear at sentencing. They must still, for example, view co-conspirators’ statements

with “special suspicion,” Hunt, 487 F.3d at 352 (citation omitted), and they must still assure

themselves of sufficient corroborative evidence, see, e.g., United States v. Gibbs, 182 F.3d 408,

441–42 (6th Cir. 1999). But this is not a case where, for example, the district court had nothing

to go on but the probation department’s conclusory statements, see United States v. Lowenstein,

108 F.3d 80, 83–84 (6th Cir. 1997), nor a case where there has been a showing that the evidence

is “extensively and materially false,” see Stewart v. Erwin, 503 F.3d 488, 494 (6th Cir. 2007)

(citation omitted), nor a case where the inculpatory statements themselves appeared potentially

inconsistent or unreliable, see Gibbs, 182 F.3d at 441. Simply put, the statements at issue here

were sufficiently reliable for the district judge to rely on them in finding facts at Santana’s

sentencing.

       Meanwhile, though the evidence that Santana put forward regarding his financial

situation, employment, and lifestyle gives us pause, as it apparently did the district judge, see

R. 48 (Sentencing Tr. at 19) (Page ID #384), it does not leave us “with the definite and firm


                                               19
No. 17-1210, United States v. Santana


conviction,” see, e.g., Darwich, 337 F.3d at 663 (citation omitted), that the district court erred in

relying on the grand-jury testimony of CD-1 and CD-2. And while that evidence may belie the

idea that Santana was indeed some kind of powerful “kingpin,” see Appellee’s Br. at 2, the

district court’s judgment was not that Santana was a kingpin, but rather that he was responsible

for conspiring to sell more than 90 kilograms of heroin and that he had served as a manager or

supervisor in that conspiracy, see R. 48 (Sentencing Tr. at 5) (Page ID #370). The district court

did not clearly err in relying on the hearsay testimony before it to conclude as much.

                                       III. CONCLUSION

       Santana pleaded guilty and admitted to arranging the sale of between one and three

kilograms of heroin to buyers in the Detroit area, with full knowledge that two cooperating

witnesses had, in testimony before a grand jury, ascribed to him a much larger role in an ongoing

heroin-trafficking conspiracy. Because those cooperating witnesses’ sworn statements were

independently given, internally and mutually consistent, and circumstantially consistent with the

large amount of heroin that Santana had already admitted to helping traffic, we hold that the

district court did not clearly err in deeming them sufficiently reliable to support the court’s

factual findings at Santana’s sentencing. We therefore AFFIRM Santana’s sentence.




                                                 20
