United States of America v. Sergio Dominguez also known as Cesar

St. Louis, MO - Criminal defense lawyer represented defendant charged with a conspiring to distribute 50 grams or more of actual methamphetamine.

Section 2D1.1(b)(5) provides for a two-level enhancement if "the offense

involved the importation of . . . methamphetamine” and "the defendant is not subject

to an adjustment under § 3B1.2 (Mitigating Role).”2

At sentencing, the district court

took evidence about the application of the enhancement, including testimony from

Brandon Kirkley ("Kirkley”) of the Grand Island Police Department, who was one of

the investigators in Dominguez's case.

Kirkley testified that law enforcement worked with a confidential informant

("CI”) who made thirteen controlled buys from Dominguez and his co-conspirators.

In the course of his dealings with the CI, Dominguez related that he was working with

the Sinaloa drug cartel in Mexico. Another cooperating individual reported that

Dominguez had informed him the drugs sold in Grand Island came from Sinaloa. In

addition, law enforcement placed a GPS tracker on Dominguez's car, which showed

the car was in Mexico three times during the investigation and that on two of those

occasions controlled buys took place shortly thereafter. Kirkley also testified that the

investigation failed to identify any conspirator other than Dominguez who made

frequent trips to the southwest United States and Mexico. Finally, the court received

into evidence three exhibits containing a summary of Dominguez's travel to Mexico

from the GPS tracker, and summaries of two conversations the CI had while making

controlled buys from the cooperating individual and Dominguez. Based on this

evidence, the district court found the two-level increase under § 2D1.1(b)(5) was

warranted.

2Dominguez did not receive a mitigating role reduction.

-2-

Dominguez argues on appeal that Kirkley's testimony about his statements to

the CI and the cooperating individual is unreliable because it is double hearsay and

because the cooperating individual was not fluent in English. These arguments are

unavailing because the Rules of Evidence do not apply to sentencing proceedings,

and "hearsay evidence, even double hearsay, can be used at sentencing proceedings

if it bears sufficient indicia of reliability to support its probable accuracy.” United

States v. Ngombwa, 893 F.3d 546, 557 (8th Cir. 2018) (cleaned up). As a general

principle, when hearsay evidence at sentencing is corroborated, it is sufficiently

reliable. Id. There is ample corroborating evidence in the record to support the

district court's finding that Dominguez was affiliated with the Sinaloa cartel and that

he was importing drugs into the United States from Mexico. There is no indication

in the record of communication difficulties between law enforcement and the

cooperating witness. The hearsay evidence was sufficiently reliable to be considered

by the court when determining whether the sentencing enhancement was applicable.

Dominguez also argues the district court erred in finding his trips to Mexico

were related to the importation of methamphetamine. Findings of fact are reviewed

for clear error. United States v. Rivera-Mendoza, 682 F.3d 730, 733 (8th Cir. 2012).

"Reversal under clearly erroneous review requires a 'definite and firm conviction that

a mistake has been committed.'” Id. (quoting United States v. Martinez,

446 F.3d 878, 881 (8th Cir. 2006)). Although Dominguez offered an innocent

explanation for his presence in Mexico, the district court reasonably made a

determination that Kirkley's testimony was more credible than the claim that

Dominguez trips were to visit family.

We affirm the judgment of the district court.