United States of America v. Mario Lee, a/k/a Mo

This appeal comes from a

district court’s imposition of a 218-month sentence on Mario Lee

for conspiracy to distribute and possession with intent to

distribute 100 grams or more of a mixture or substance containing

heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Lee only

attacks his sentence as procedurally unreasonable. Concluding, as

we do, that the district court did not commit any error, we affirm.

A. Background1

On February 7, 2014, Mario Lee was released from prison

in New York, having been convicted for selling crack cocaine to an

undercover police officer. Within months of his release, federal

and state law enforcement in Maine discovered that Lee was

participating in an ongoing conspiracy to distribute heroin there.

Lee would obtain heroin from outside Maine and would transport it

back to Maine to be distributed by himself and others. On

September 3, 2015, Lee was arrested. He was charged with four

counts of distribution of heroin, and one count of conspiracy to

distribute heroin. Facing a possible life sentence, Lee pled

guilty to one count of conspiracy to distribute and possession

with intent to distribute 100 grams or more of a mixture or

1 We draw these facts, where relevant, from the record before

us on appeal, in particular the pre-sentence report (PSR), the

criminal complaint to which Lee pled guilty, the plea hearing

transcript, the sentencing transcript, and the parties’ sentencing

memoranda and exhibits before the district court. See United

States v. Santiago-Serrano, 598 F. App'x 17, 18 (1st Cir. 2015).

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substance containing heroin, in violation of 21 U.S.C. §§ 841(a)(1)

and 846. The plea agreement struck by the government and Lee, due

to Lee’s undisputed career offender status under U.S.S.G. § 4B1.1,

had the effect of setting his guideline range at 120 to 240 months.

At Lee’s sentencing, and in its sentencing memorandum,

the government presented and summarized evidence from its

investigation to support a 1.3 kilogram drug quantity

determination, as recommended by the PSR. This evidence included

the grand jury testimony or interviews of nine witnesses who

connected Lee to large quantities of heroin.2 Lee objected to the

drug quantity estimates in the PSR based on the government’s

witness statements.3 Unlike other cases where drug quantity comes

up as an issue, in this case the district court noted, and counsel

for the government and Lee agreed, that Lee’s PSR objections would

not affect the guidelines calculations because Lee’s undisputed

status as a career offender under U.S.S.G. § 4B1.1 superseded those

considerations. However, the district court said that drug

2 These witnesses are identified in the record as: Source of

Information (SI)-1, -2, -3, -4, -5, -5H (husband of SI-5), -6,

-7, and -8.

3 We note that below Lee also disputed the PSR’s

recommendation of an enhancement for his role in the conspiracy.

The PSR recommended that he receive a four-level enhancement as an

organizer or leader of criminal activity involving five or more

participants or that was otherwise extensive under U.S.S.G. §

3B1.1(a). As he does not challenge the district court's imposition

of this enhancement on appeal, we say no more.

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quantity could be relevant to the actual sentence imposed under

the 18 U.S.C. § 3553(a) factors.

To hear Lee tell it, the witnesses’ statements, which

were not subject to cross-examination in the grand jury or the

prosecutor’s office, had inconsistencies. These inconsistencies

all amounted to arguing either that the witnesses exaggerated the

period of time they were acquainted with Lee when he was selling

heroin in Maine or the amount of heroin the witnesses knew Lee had

possessed. Lee concluded that that made them too unreliable to be

considered. While noting these discrepancies, the district court

found that the witnesses’ statements were credible, corroborating

locations, associates, and drugs connected to Lee, and adopted the

PSR’s recommended 1.3 kilograms as the drug quantity. The district

court considered the drug quantity in imposing Lee’s 218-month

sentence rather than a more lenient one.

B. Discussion

On appeal, Lee complains only about the drug quantity

the district court attributed to him. According to Lee, SI-1, SI-

2, SI-3, SI-4, and SI-5, whose testimony supported the PSR’s drug

quantity recommendation, were inherently unreliable. Even worse,

Lee says that considering these unreliable statements would risk

“double counting,” incorrectly ballooning the drug amounts

attributable to him by considering the testimony of multiple

witnesses that could relate to the same drugs. To Lee, considering

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this evidence despite the shortcomings he identified was

procedural sentencing error. As a part of his argument that the

witness statements are unreliable, Lee believes that the witness

statements are especially so because they are out-of-court

statements from either grand jury testimony or proffer interviews

with the government. Thus, Lee concludes, if the district court

had required the government to produce these witnesses for live

testimony at sentencing, as he requested below, the district court

could not have possibly believed them.

We must ensure that the sentence imposed by the district

court was “procedurally sound.” United States v. Dávila-González,

595 F.3d 42, 47 (1st Cir. 2010) (citing United States v. Martin,

520 F.3d 87, 92 (1st Cir. 2008)). A district court commits a

procedural error in sentencing if it "fail[s] to calculate (or

improperly calculate[s]) the Guidelines range, treat[s] the

Guidelines as mandatory, fail[s] to consider the § 3553(a) factors,

select[s] a sentence based on clearly erroneous facts, or fail[s]

to adequately explain the chosen sentence." Gall v. United States,

552 U.S. 38, 51 (2007). When making a drug quantity finding, the

sentencing court’s responsibility is to “make reasonable estimates

of drug quantities, provided they are supported by a preponderance

of the evidence.” United States v. Mills, 710 F.3d 5, 15 (1st

Cir. 2013). We review those estimates “deferentially, reversing

only for clear error.” Id. We will only find clear error when

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our review of the whole record “form[s] a strong, unyielding belief

that a mistake has been made.” Cumpiano v. Banco Santander P.R.,

902 F.2d 148, 152 (1st Cir. 1990).

Evidence supporting the drug quantity determination may

be considered regardless of its admissibility at trial, so long as

it has “sufficient indicia of reliability to support its probable

accuracy.” U.S.S.G. § 6A1.3(a). The sentencing court has a lot

of discretion in deciding what evidence is reliable enough to be

considered for sentencing purposes. See Mills, 710 F.3d at 15-

16; United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir.

2010); United States v. Green, 426 F.3d 64, 66 (1st Cir. 2005).

Having laid out our deferential review of drug quantity

findings, and the sentencing court’s broad discretion in reviewing

the evidence before it at the sentencing hearing, we start with

Lee’s argument that the witness statements, as out-of-court

statements, are inherently less reliable for sentencing purposes,

and that the government should have been compelled to produce the

witnesses for cross examination. Lee’s argument is way off base.

A defendant’s rights under the Confrontation Clause do not attach

during sentencing. United States v. Díaz-Arias, 717 F.3d 1, 26-

27 (1st Cir. 2013). And for a while now, we have held that a

sentencing court may consider hearsay statements of confidential

informants if they otherwise show sufficient indicia of

reliability. See Green, 426 F.3d at 67; United States v. Tardiff,

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969 F.2d 1283, 1287 (1st Cir. 1992), superseded by amendment to

U.S.S.G. on other grounds, U.S.S.G. § 3B1.3, as recognized in

United States v. Reccko, 151 F.3d 29, 33 (1st Cir. 1998). We see

no error here.4

The witnesses’ statements concerning Lee’s heroin

distribution were detailed, internally consistent, and mutually

corroborative in important ways. In particular, the statements

were mutually corroborative about the specific locations where he

stashed and sold heroin, including multiple descriptions of a

trailer on Essex Street in Bangor, Maine, restaurants in Bangor

such as the “Sea Dog” and “Carolina’s,” a residence at Maxim Court

in Bangor, and a residence in Old Town, Maine. Multiple witnesses

also corroborated the names of Lee’s associates and “runners” (drug

deliverers). We have already held that a sentencing court can

rely on evidence with indicia like this. See Green, 426 F.3d at

4 Lee’s reliance on United States v. Carl, 593 F.3d 115 (1st

Cir. 2010), does not help him escape the clear precedent permitting

the use of hearsay statements, including confidential ones. While

in Carl, the statements of drug addicts who bought crack cocaine

from the defendant were subject to cross-examination at trial

before being used for drug quantity purposes at sentencing, nothing

in that opinion would suggest that cross-examination at trial is

dispositive or even considered in our deferential review of the

sentencing court. See id. at 122-23. As long as the information

the government uses is reliable, there is no presumption or

preference for live testimony subject to cross-examination rather

than any other. See Mills, 710 F.3d at 15-16 (“[T]he court can

consider all kinds of relevant information regardless of

admissibility at trial . . . provided it has ‘sufficient indicia

of reliability to support its probable accuracy.’” (quoting

U.S.S.G. § 6A1.3(a)).

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67 (affirming sentencing court’s reliance on statements

corroborating names of associates and locations used by

defendant). Some witnesses also personally witnessed Lee

possessing and distributing heroin himself. We have affirmed

reliance on evidence showing far less. See United States v.

Zapata, 589 F.3d 475, 485-86 (1st Cir. 2009) (affirming drug

quantity on basis of intercepted phone calls discussing drug

quantity in code when defendant was never found in possession of

drugs). The alleged inconsistencies Lee identifies – all relating

to the witnesses’ knowledge of the amount of time Lee was in Maine

or how many drugs he was connected to – are not enough to torpedo

the district court's findings. In fact, some of the

inconsistencies are just mistakes that the witness corrected

later.5 It is not clear error that the sentencing court weighed

other indicia of reliability and found them to be more significant.

See Mills, 710 F.3d at 16 & n.4.

Any possibility of a reversible error due to witness

reliability or double counting is negated even more by the

5 The insignificance of the flaws Lee picks out of the

testimony is made even clearer by this example. SI-1 testified

that she met Lee in 2012 or 2013, which, as Lee seizes upon, would

have been impossible as he was incarcerated in New York at that

time. As the government points out, SI-1 corrected this belief

later in her testimony, amending that she had dealt with Lee for

eighteen months to two years. Inconsistencies like these do not

compete in weight or relevance with the factors the district court

found reliable in the witness testimony, and that we find reliable

here.

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narrowness of the drug quantity calculation. In an act of lenity

to Lee’s benefit, the PSR’s 1.3 kilogram drug quantity accounted

for the possibility of any exaggerations or double counting by the

witnesses in its estimate. The PSR: (i) only considered a sixmonth

window of SI-1’s transactions with Lee, accounting for when

Lee was released from prison in New York and when it was alleged

he was not in Maine for eight months; (ii) did not consider the

suitcases of heroin Lee’s cousin delivered to him as corroborated

by SI-4 in order to avoid double counting; (iii) only considered

a six-month window of transactions corroborated by SI-5, even

reducing the drug quantity per transaction, to ensure lenity;

(iv) for no stated reason but to Lee’s benefit, did not consider

any drug quantities corroborated by SI-6, SI-7, or SI-8; and

(v) discounted the “bundles” of heroin Lee sold to represent .25

grams each in the calculation, rather than 1 gram as multiple

witnesses testified. In sum, the sentencing court adopted the

PSR’s “modest and defensible assumptions” to avoid precisely the

errors Lee claims were made. Cintrón-Echautegui, 604 F.3d at 7.

The district court’s reliance on the witness statements and its

adoption of a narrowly tailored drug quantity determination

supported by that evidence were reasonable. We see no clear error.

For the reasons explained above, the sentence is

affirmed.