United States v. Smith, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
JUL 28 1999
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 97-3266
(D.C. No. 95-40083-03)
(D. Kan.)
LEXIE LEE SMITH,

Defendant-Appellant.
ORDER AND JUDGMENT *

Before BRORBY, McKAY and EBEL, Circuit Judges.
Defendant-Appellant Lexie Lee Smith pled guilty to federal drug offenses
and was sentenced to 188 months imprisonment. He now appeals his sentence,
arguing that the district court erred in determining his relevant conduct for
purposes of establishing his base offense level. We affirm.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). 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Judgment is not binding precedent, except under the doctrines of law of the case,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.
*
BACKGROUND
Smith was part of a crack cocaine trafficking operation in eastern Kansas.
He was named in an 82-count indictment along with James Wardel Quary, Lester
Smith, Lori Smith, and Eddie Merritt. Bernard Preston, Elinor Preston, and
Demond Bridges, also codefendants, were named in an earlier indictment.
Smiths case is part of a trio of related appeals concerning this distribution ring.
The background facts relating to the drug conspiracy are set forth in companion
cases, United States v. Watkins, No. 97-3216, and United States v. Quary, No. 973213, and will not be repeated here.
The facts pertinent to this case are as follows. Smith and codefendant
James Wardel Quary appeared for trial on February 4, 1997. During jury
selection, Smith reached a plea agreement with the government whereby Smith
agreed to plead guilty to counts 2, 3, 4, and 71 of the third superseding
indictment. Counts 2, 4, and 71 charged Smith with possession with intent to
distribute, respectively, 0.3 grams, 0.7 grams, and 8.2 grams of cocaine base, all
in violation of 21 U.S.C. 841(a)(1); count 3 charged Smith with controlling a
building for the purpose of storing 0.3 grams of cocaine base, in violation of 21
U.S.C. 856.
Smiths presentence investigation report (PSR) stated that Smith had
participated in a large drug trafficking operation headed by Smiths codefendant,
-2-
James Quary, and involving approximately 25 coconspirators and as many as 75

sellers. The PSR concluded that over the duration of the conspiracy, the
operation distributed 9.93 kilograms of cocaine base. The PSR imputed this
entire quantity to Smith pursuant to U.S.S.G. 1B1.3(a), which set Smiths base
offense level at 38.
Smith objected to the PSR, contending that his base offense level should
not have been established based on the drug quantities distributed by the entire
operation, but rather, should have reflected only the approximately 10 grams of
cocaine base involved in the transactions in which Smith directly participated.
The district court overruled Smiths objection, but did grant a three-level
reduction in the base offense level for acceptance of responsibility, and reduced
Smiths criminal history category from III to II. The court then sentenced Smith
at the bottom of the applicable guideline range, or 188 months on each count, and
ordered all sentences to run concurrently. Smith now appeals, again challenging
the drug quantity amount used to establish his base offense level.
DISCUSSION
Smith contends that the district court erred in adopting the PSRs
conclusion that all drug quantities possessed and/or sold during the Quary
conspiracy were reasonably foreseeable to Smith under U.S.S.G. 1B1.3(a).
Smith asserts that there was insufficient evidence presented to the district court
-3-
that these quantities existed, in that the drug quantities were based on unreliable
hearsay evidence, and in that the admission of this hearsay evidence violated his
confrontation rights. He argues in the alternative that the sale or possession of
these quantities were not reasonably foreseeable to him.
We review the district courts drug quantity calculation for clear error, and
will not disturb it absent no support in the record, or where upon review of the
evidence we are firmly convinced that the district court made an error. United
States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998). We find no such
error in Smiths case.
When calculating a defendants base offense level in a drug distribution
case, the district court is not limited to the amount of contraband with which the
defendant was personally involved. See Cruz Camacho, 137 F.3d at 1225.
Rather, the court may sentence the defendant based on the total amount of drugs
which he reasonably foresaw or which fell within the scope of his particular
agreement with the conspirators. Id. (internal quotations omitted); see also
U.S.S.G. 1B1.3, comment 2 ([I]n the case of a jointly undertaken criminal
activity, [the defendant is accountable for] all reasonably foreseeable quantities of
contraband that were within the scope of the criminal activity that he jointly
undertook.). Thus, in determining a defendants base offense level, a
sentencing court may look beyond the charges alleged in the indictment, see
-4-
United States v. Underwood, 982 F.2d 426, 429 (10th Cir. 1992), and may
consider conduct on dismissed counts that are part of the same course of conduct
or common scheme or plan. See United States v. Roederer, 11 F.3d 973, 979 (10th
Cir. 1993); see also United States v. Watts, 519 U.S. 148, 154 (1997) ([A]
sentencing court may consider conduct of which a defendant has been
acquitted.).
The government must prove the quantities of drugs for sentencing
purposes by a preponderance of the evidence, and the evidence relied upon must
possess a minimum indicia of reliability. Cruz Camacho, 137 F.3d at 1225. For
purposes of establishing the quantity of crack cocaine attributable to Smith, the
government introduced at sentencing the trial transcripts of the testimony of
Bernard Preston (who testified at both Betty Watkins and James Quarys trials
pursuant to a plea agreement), and Demond Bridges and Elinor Preston (who both
testified at Quarys trial pursuant to plea agreements). Smith submits that such
evidence was unreliable hearsay and that its admission denied him his Sixth
Amendment right to confront and cross examine the witnesses against him. Both
contentions fail.
First, it is clear that a sentencing court may consider hearsay evidence, so
long as it bears a minimum indicia of reliability. See United States v. Beaulieu,
893 F.2d 1177, 1181 (10th Cir. 1990) ([R]eliable hearsay -- including testimony
-5-
from a separate trial -- may be used at sentencing to determine the appropriate

punishment.). Second, it is equally clear that a defendants Sixth Amendment
right to confront witnesses does not extend to sentencing proceedings. See
United States v. Powell, 973 F.2d 885, 893 (10th Cir. 1992); Beaulieu, 893 F.2d
at 1180.
The writer of Smiths presentence report had access to the governments
entire investigative file in this multi-defendant conspiracy, including the trial
transcript testimony in United States v. Quary. The sentencing judge in Smiths
case handled the Quary trial. He was familiar with the facts of that case, and
heard firsthand the testimony of Bernard Preston, Elinor Preston, and Demond
Bridges at that trial, all of whom were coconspirators of Smith. The district court
in this case specifically found that all of the information on which the court relied
met or exceeded required standards of reliability, (see R. vol. III at 18 (Sent.
Tr.)), and we find nothing in the record to suggest otherwise. Accordingly, we
find no error in the district courts drug quantity calculation or base offense level
determination.
AFFIRMED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-6-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

LEXIE LEE SMITH,

ORDER AND JUDGMENT *

James Quary, and involving approximately 25 coconspirators and as many as 75

from a separate trial -- may be used at sentencing to determine the appropriate

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