IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-50764

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE DRELL DAVIS,

Defendant-Appellant.

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Appeal from the United States District Court for the

Western District of Texas

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February 7, 1996

Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Defendant-appellant Joe Drell Davis ("Davis") pleaded guilty

to possession with intent to distribute crack cocaine in violation

21 U.S.C. § 841(a)(1). On appeal he challenges only his sentence,

alleging that the district court erred in finding that seven ounces

(198.45 grams) of crack cocaine were attributable to him. Davis

challenges the sentence on two grounds. First, he questions

whether the information used to calculate the quantity of cocaine

he sold was grounded in sufficient indicia of reliability since it

was based on a statement provided by a confidential informant who

later contradicted th e statement at Davis' sentencing hearing.

Second, he argues that the quantity of cocaine attributed to him-2-

should reflect the amount of cocaine he actually sold instead of

the amounts he negotiated to sell. Based on our determination that

the district court's finding was not clearly erroneous and that the

court correctly applied the sentencing guidelines, we affirm Davis'

sentence.

I

Davis was the subject of an undercover sting operation

conducted by the Killeen, Texas Police Department. On July 27,

1994, while under surveillance by police officers, Davis negotiated

the sale of two ounces (56.7 grams) of crack cocaine to a

confidential informant, Jody Wils on ("Wilson"). Wilson actually

bought slightly less than two ounces of crack cocaine (46.40

grams). He paid Davis $1,900. Davis was arrested and charged with

distribution of crack cocaine in violation of 21 U.S.C. §

841(a)(1). Davis pleaded guilty as charged.

Prior to the sting operation, Wilson told the police that he

had been purchasing cocaine from Davis about twice a month over the

five month period prior to Ju ly 27, 1994. Wilson stated that he

would purchase "two ounces every two weeks [or] sometimes I might

buy one ounce a week." Wilson also said that he generally

purchased crack cocaine, but also occasionally bought powder

cocaine. The police relayed this information to the U.S. Probation

Office.

After Davis' guilty plea, Davis' probation officer prepared a

Presentence Report ("PSR") attrib uting seven ounces of crack-3-

cocaine to Davis. The probation officer reached this conclusion by

adding the amount of crack cocaine Davis negotiated for sale to

Wilson in the sting operation (two ounces or 56.7 grams) to the

amount of crack cocaine the officer estimated that Davis had sold

to Wilson over the five-month period preceding the sting (five

ounces or 141.75 grams). In order to generate the latter estimate,

the officer assumed that Davis sold drugs to Wilson in ten separate

transactions, each involving only one ounce of cocaine. The

officer further estimated that only half of the ten transactions

i nvolved crack cocaine, in order to allow for Wilson's statem ent

that "occasionally he bought powder cocaine." Using seven ounces

of crack cocaine as the t otal amount of controlled substances

involved, the PSR assigned Davis a base offense level of 34 and an

imprisonment range of 151-188 months.

Wilson testified at Davis' sentencing hearing. Under oath he

stated that he purchased crack cocaine from Davis on July 27, 1994,

and that he knew Davis for f ive months. He also stated that he

purchased drugs "maybe four or five times" from Davis in the

preceding five months, and that the "cocaine deals ranged from a

half-ounce to two ounces." Wilson also testified on direct

examination that sometimes the transactions involved powder

cocaine.

On cross-examination, Wilson confirmed his statement, used in

the PSR, that he "would buy two ounces every two weeks, sometimes

I might buy one ounce a w eek." When asked about the discrepancy-4-

between his testimony and his statements to the police, Wilson

explained that his earlier estimate for the PSR was "a range," and

that his testimony differed because "its not something that I wrote

down on a calendar." He also responded that "I told [the police

that my earlier statement] was an approximation."

In sentencin g Davis, the district court adopted the factual

findings and guideline application in the PSR. The district court

sentenced Davis to 151 months in jail, the minimum imprisonment

time at the corresponding offense level. Davis now objects to the

amount of crack cocaine attribute d to him by the PSR and the

district cour t and, therefore, to the base offense level and

imprisonment range applicable to him.

II

Davis first contends that the information provided by Wilson

to the police and incorporated into the PSR regarding Davis' crack

sales to Wilson prior to July 27, 1994, lacks sufficient indicia of

reliability to support its p robable accuracy, as required under

U.S.S.G 6A1.3. Davis urges that the estimates used in the PSR have

n o corroboration because they were based on statements by Wilson

that Wilson later contradicted at the sentencing hearing. Instead,

Davis argues that Wilson's testimony at the hearing is controlling

and requires the district court to find that he sold no more than

three ounces of crack prior to the sting, which would result in a

reduction of his base level offense, and a corresponding decrease1 Specifically, Davis maintains that Wilson's te stimony (a)

limited the total number of drug transa ctions between Davis and

Wilson before July 27, 1994, to five transactio ns, and (b)

established that only half of these t ransactions, at most three,

involved crack cocaine. Because each transaction involved between

"a half-ounce [and] two ounces," Davis urges that "[t]he figure of

one ounce would . . . be reasonable to use." Plugging in the

numbers that Davis asserts are reliable (five sales of cocaine

consisting of one ounce each, three of which involved crack

cocaine), only three ounces (or 85.05 grams) of crack may be

attributed to Davis prior to July 27. This amount, together with

that in the controlled buy, equals a total of 141.05 grams, giving

Davis an offense level of 32 and a sentence guideline range of 121-

151 months.

-5- in the imprisonment range applicable to him. 1 The use of any

amount of crack greater than three ounces lacks sufficient indicia

o f reliability, Davis maintains, and requires this court to find

clear error on the part of the district court in sentencing him.

"A district court's findings about the quantity of drugs

implicated by the crime are factual findings reviewed under the

`clearly erroneous' standard." United States v. Rivera , 898 F.2d

442, 445 (5th Cir. 1990). In our review, we take into account the

district court's "wide discretion in the kind and source of

information [it] considers in imposing sentence." U nited States v.

Garcia

. 693 F.2d 412, 416 (5th Cir. 1982). Under the clearly

erroneous standard, "[i]f the district court's account of the

evidence is plausible in light of the record viewed in its entirety

the court of appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have weighed the

evidence differently." A nderson v. City of Bessemer City

, 470 U.S.

564, 574 (1985).-6-

A dist rict court has wide discretion in determining which

evidence to consider and which testimony to credit. U .S. v.

Edwards

, 65 F.3d 430 (5th Cir. 1995). For sentencing purposes, the

district court may consider any relevant evidence "without regard

to its admissibility under the rules of evidence applicable at

trial, provided t hat the information has sufficient indicia of

reliability to support its probable accuracy." U.S.S.G. § 6A1.3;

U.S. v. Mi chael , 894 F.2d 1457, 1461-62 (5th Cir. 1990). Facts

used by the district court for sentencing purposes have "some

indicia of reliability" where they are "reasonably reliable." U .S.

v. Shacklett

, 921 F.2d 580, 585 ( 5th Cir. 1991). "The defendant

bears the burden of demonstratin g that information the district

court relied on in sentencing is `materially untrue.'" U nited

States v. Vela , 927 F.2d 197, 201 (5th Cir. 1991).

In United States v. Young

, 981 F.2d 180 (5th Cir. 1993), we

found that a sentencing court's determination as to the amount of

drugs involved in defendants' offenses was supported by r eliable

information. We did so despite the defendants' claim that the

district court improperly relied on the officers' hearsay testimony

about the sta tements of certain confidential informants and the

fact that one defendant presented evidence that te nded to rebut

information provided by the confidential informants. The

government provided corroboration in the form of evidence obtained

from its own investigation concerning the defendants' involvement

in drug d ealing and the informants' past record of reliability,-7-

without specifically corroborating the drug amounts reported by the

informants. We noted in Young that, although faced only with the

paucity of defendants' rebuttal testimon y

, the district court

nevertheless halved the amount of drugs reported by the informants

to "tak[e] into account uncertainty and the pos sibility of

exaggeration." Id. at 186.

In the present case, Wilson gave conflicting testimony at the

sentencing hearing as to the aggregate number of purchases he made

from Davis prior to July 27. He stated on direct examination that

he purchased drugs from Davis "maybe four or five times," a

departure from his statement for the PSR. On cross-examination,

however, he confirmed that he had purchased drugs from Davis over

a five -month period in which he "would buy two ounces every two

weeks, sometimes I might buy one ounce a week." He explained the

conflict in his own testimony by noting that his purchases were

"not something that I wrote down on a calendar."

The district court carefully evaluated Wilson's conflicting

testimony at the sentencing hearing and chose to credit one of

Wilson's accounts about the number of times he purchased crack from

Davis prior to July 27, to the rejection of Wilson's other account.

Faced with Wilson's own conflicting reports, the district court was

free to evaluate the testimony and to make this credibility choice.

We see no error in the district court's determination that Wilson's

cross-examination testimony was more worthy of creden ce than his

direct testimony and conclude that Davis sold Wilson cocaine on ten2 We especially note that the PSR and the district court made

allowances for the amount of crack sold in each trans action.

Wilson stated variously that he would purchase one or two ounces during each sale (his statement for the PSR), and that the

purchases ranged from "one-half ounce to two ounces" (W ilson's

hearing testi mony). The PSR, adopted by the district court,

assumed sales of one ounce each in order "[t]o allow Davis the

benefit of the doubt." This assumption falls at the bottom of the

range Wilson provided for the PSR and roughly in the middle of the

range Wilson gave at the sentencing hearing.

-8- occasions, five of which involved crack. This is especially true

in the light of the fact that this credibility choice finds

corrobor ation in the factual account of the crack sales

incorporated into the PSR. Thus, it is clear that under our

standard of review the information the district court use d to

determine the quantity of drugs sold by Davis was rea sonably

reliable.

Our conclusion that the district court committed no error is

further buttressed by the fact that, as in Young

, the district

court here took into account the uncertainty of Wilson's report of

Davis' crack sales when it adopted the PSR. Specifically, Wilson

stated for the PSR and testified at the sentencing hearing that he

"occasionally would buy powder coca ine." This testimony would

support as few as two or three purchases of powder cocaine and as

many as seven or eight sales of crack. Nevertheless, the PSR and

the district court discounted the amount of crack Davis sold to

Wilson by assuming only five transactions involving crack. 2 Given

the trial court 's conservative estimate, we must say that the-9-

court's attribution to Davis of seven ounces of crack cocaine is

not clearly erroneous.

III

Davis next contends that the district court erred by

attributing to him the fu ll two ounces he negotiated to sell to

Wilson on July 27, 1994. Instead, Davis argues that he should be

charged with the actual amount he sold (46.4 grams or slightly less

than less than two ounces).

We revie w the application of the sentencing guidelines d e

novo. U nited States v. Edwards ,65 F.3d 430 (5th Cir. 1995). A

district court may attribute to a defendant convicted of possession

with intent to distribute the amount of an unconsummated

transaction, unless the defendant did not intend or was not

reasonably capable of producing that amount. U nited States v.

Garcia

, 889 F.2d 1454, 1457 (5th Cir. 1989), cert. denied

, 494 U.S.

1088 (1990). In this case, Davis has offered no testimony to

support his contention that he did not intend to sell Wilson two

ounces or that he was not capable of doing so. We therefore affirm

the district court's decision to use the negotiated amount.-10- IV

We thus hold, based on all of the evidence available for the

district court's consideration, that the determination that seven

ounces of crack cocaine were attributable to Davis was not clearly

erroneous. The sentence of Joe Drell Davis is therefore

A F F I R M E D.