1

 Pursuant to U.S.S.G. § 1B1.11, we will use the 2006 United States

Guidelines Manual.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, :

: CRIMINAL NO. 4:04-CR-10

v. :

: (Judge McClure)

CHRISTOPHER P. DeSIVO :

MEMORANDUM

January 9, 2007

BACKGROUND:

On August 25, 2005, a jury in the Middle District of Pennsylvania found

defendant Christopher P. DeSivo (“DeSivo”) guilty of four counts related to a

conspiracy to manufacture and distribute methamphetamine, possession of a

firearm, witness tampering, and obstruction of justice. On October 20, 2005, the

United States Probation Office (“probation office”) issued DeSivo’s original

presentence report, which was later updated on February 28, 2006.

The probation office used the 2005 United States Sentencing Commission

Guidelines Manual to determine defendant’s total offense level.1

 Relying on the

trial testimony of several witnesses, the probation office concluded that at least 1.5

kilograms but less than 5 kilograms of methamphetamine was involved in

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defendant’s methamphetamine conspiracy. Pursuant to U.S.S.G. § 2D1.1(c)(3),

this amount resulted in a base offense level of 34. The probation office added eight

levels to this amount - two levels for Desivo’s possession of a 9mm assault rifle in

connection with his drug distribution activities, see U.S.S.G. § 2D1.1(b)(1); four

levels for Desivo’s role as leader of criminal activity involving five or more

persons, see U.S.S.G. § 3B1.1(a); and two levels for DeSivo’s obstruction of

justice, see U.S.S.G. § 3C1.1. After determining DeSivo was not entitled to any

offense level reductions, the probation office concluded that DeSivo’s total offense

level was 42.

The probation office then determined DeSivo’s criminal history category

score, which, based on his extensive criminal history, resulted in a base score of

sixteen. The probation office then added two points because the instant offense

occurred while the defendant was on parole, see U.S.S.G. § 4A1.1(d); and added

one point because the defendant committed the offense less than two years after

being released from imprisonment for a prior conviction, see U.S.S.G. § 4A1.1(e). 

The net result was nineteen criminal history points, which meant the defendant’s

criminal history category was VI. With a total offense level of 42 and a criminal

history category of VI, the presentence report determined DeSivo’s sentencing

guideline imprisonment range to be 360 months to life.

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Not surprisingly, DeSivo has filed numerous objections challenging the

basis for this imprisonment range. On November 2, 2005, DeSivo filed, pro se,

eleven pages of objections, followed by fifteen pages of supplemental objections

filed, again pro se, on January 30, 2006. The probation office filed an addendum

responding to these objections. The court then scheduled a hearing and a briefing

schedule for arguments regarding DeSivo’s objections. After granting DeSivo’s

numerous requests to delay the briefing and hearing, Desivo and the government

filed their respective sentencing memoranda, and the court heard arguments on

DeSivo’s objections on December 6, 2006. During the December 6th hearing, the

parties were given an opportunity to present argument and any evidence supporting

those arguments. Sentencing has been postponed pending the court’s ruling on

defendant’s objections. 

DISCUSSION:

I. Standard for Sentencing 

The Supreme Court’s ruling in United States v. Booker, 543 U.S. 220 (2005)

made the United States Sentencing Guidelines advisory. Post-Booker, the Third

Circuit has directed the district courts to follow a three part process when applying

these advisory guidelines:

(1) Courts must calculate defendant’s Guidelines sentence in the same manner as

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they would have before Booker.

(2) In doing so, they must formally rule on the motions of both parties and state on

the record whether they are granting a departure and how that departure affects the

Guidelines calculation, and take into account our Circuit’s pre-Booker case law,

which continues to have advisory force.

(3) Finally, they are to exercise their discretion by considering the relevant 28

U.S.C. § 3553(a) factors in setting the sentence they impose regardless whether it

varies from the sentence calculated under the Guidelines.

United States v. Jackson, 467 F.3d 834, 837 (3d Cir. 2006) (quotation marks,

brackets, and citations omitted) (quoting United States v. Gunter, 462 F.3d 237,

247 (3d Cir. 2006).

In his pro se objections, DeSivo originally objected not only to the

Guideline calculations, but also made request for specific departures. See

(DeSivo’s Obj., Rec. Doc. 196, ¶ 29). During the December 6th hearing, however,

defense counsel and the government agreed that those departure requests were not

really departure requests, but rather arguments that were relevant to the factors

enunciated in 28 U.S.C. § 3553(a). See Obj. Hr’g Tr. 5-, 95-6, December 6, 2006. 

For this reason, we deal only in this memorandum with step one of the sentencing

process, and will consider the objections DeSivo makes with respect to the

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2 DeSivo has objected to almost every paragraph in the presentence report,

including matters having no bearing on his ultimate sentence, such as the docketing

number referenced for a prior criminal matter. For purposes of this memorandum,

we rely almost exclusively on the arguments made by defense counsel during oral

arguments. We note that any objection made by Desivo that is not explicitly

addressed in this memorandum is deemed overruled. 

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calculations rendered in the presentence report. The arguments presented in

DeSivo’s pro se downward departure requests are rejected in their capacity as

departure requests. Those arguments, however, will be considered at a future

sentencing hearing in so far as they pertain to the factors in 28 U.S.C. § 3553(a). 

II. Sentencing Guideline Calculation

DeSivo makes the following four main arguments in challenging the

calculations rendered in the presentence report: (1) the presentence report

impermissibly inflated the amount of methamphetamine attributable to DeSivo, (2)

the presentence report incorrectly attributed a leadership role to DeSivo in the

commission of the methamphetamine conspiracy, (3) the presentence report

incorrectly applied an enhancement for his weapon possession conviction and

obstruction of justice conviction, and (4) the presentence report miscalculated his

criminal history score.2

 We will discuss each argument in turn, and make an

independent determination as to whether the calculations made in the presentence

report are supported by the evidence.

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 Defense counsel later conceded that the current law requires the

preponderance standard, and wanted merely to preserve the objection in his

memorandum. We note the objection is overruled, but is preserved for appeal, if

necessary.

6

Before doing so, we note that we are required to apply the preponderance of

the evidence standard. See U.S. v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). In

his sentencing memorandum, DeSivo argues that a higher standard should apply. 

This argument is clearly misplaced, as the Third Circuit has as recently as

November 2006 reiterated twice that when finding facts to determine the

sentencing range under the Sentencing Guidelines, the district courts need only

apply the preponderance of evidence standard. See United States v. Wilson, 2006

U.S. App. LEXIS 27179 at *6 (3d Cir. November 1, 2006) (unpublished); U.S. v.

Fowers, 2006 U.S. App. LEXIS 27374, at *5 (3d Cir. November 3, 2006)

(unpublished).3

1. Calculation of Methamphetamine Amount

In justifying the amounts of methamphetamine attributable to DeSivo, the

government and the probation office rely exclusively on the trial testimony of

several witnesses. As a result, the court must make credibility determinations

regarding the testimony of these witnesses to ensure that the evidence proffered

possesses “sufficient indicia of reliability to support its probable accuracy.” 

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U.S.S.G. § 6A1.3; United States v. Gibbs, 190 F.3d 188, 203 (3d. Cir. 1999). In

addition to making the typical credibility determinations necessary to assess the

believability of a witness, the court must also consider any bias or interest a

witness may have regarding his or her testimony. 23 C.J.S. Criminal Law § 1490

(2006). However, a “sentencing court may credit testimony that is ‘totally

uncorroborated and comes from an admitted liar, convicted felon, or large scale

drug-dealing, paid informant.’” United States v. White, 360 F.3d 718, 720 (7th Cir.

2004) (internal citations omitted). 

A court is also permitted to estimate the amount of drugs involved in a

particular operation. Gibbs, 190 F.3d at 203. Because doing so results in an

approximation, however, the court should “err on the side of caution when

choosing between two equally plausible estimates.” United States v. August, 86

F.3d 151, 154 (9th Cir. 1996). 

The court will consider the testimony of each relevant witness separately,

determine the amount of methamphetamine attributable to DeSivo from each

witness, and then add each amount together to determine his base offense level

under the Sentencing Guidelines.

A. Freeman Smith

Freeman Smith was an experienced cook of methamphetamine. During his

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 Pseudoephedrine pills include sudafed and the generic version of sudafed.

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testimony, he described in detail how he manufactured the drug. See Trial Tr. vol.

2, 98:23-99:21, August 17, 2005. He testified that he learned from watching

someone a couple times make methamphetamine, and then “picked it up from

there.” Id. at 99:22-24. Smith testified that he and DeSivo cooked

methamphetamine between five and ten times at Smith’s house and an additional

three times at DeSivo’s house. See id. at 107:24-108:10. During each of these

cookouts, Smith stated that he and DeSivo would yield four ounces (113.4 grams)

of methamphetamine by using a thousand pseudoephedrine pills.4

 See id. at

108:11-20. He also testified that he supplied DeSivo with methamphetamine

between ten to twenty times, each time providing DeSivo with “an ounce to two or

three or four ounces.” Id. at 109:6-22. Based on this testimony, the government

attributes between 30 to 60 ounces to DeSivo - 20 ounces for five instances in

which Smith and DeSivo cooked four ounces, and ten ounces for the ten additional

times Smith supplied DeSivo with methamphetamine.

DeSivo objects to this calculation, first arguing that it was impossible for

Smith and DeSivo to produce four ounces of methamphetamine from a thousand

pseudoephedrine pills. To support this position, DeSivo introduced into evidence a

lab report from the Drug Enforcement Agency (DEA), which DeSivo apparently

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 While we suspect that the resulting amount represents actual

methamphetamine, we do not formally find this to be the case. 

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recovered from another criminal matter. Obj. Hr’g Tr. 9-10. Based on drug

precursors seized from DeSivo’s vehicle in that matter, the DEA conducted lab

tests to determine the 100% theoretical yield of d-methamphetamine from 912

tablets of pseudoephedrine. See Obj. Hr’g Tr. exhibit D-1, p. 3. Using a

hypothetical ratio of .920 of methamphetamine for each pure gram of

pseudoephedrine, the report indicates that 49.90 grams of methamphetamine were

possible from the 912 tablets of pseudoephedrine. DeSivo argues that because the

DEA was only able to theoretically yield 49.90 grams from 912 pills, it is

impossible for Smith and him to have actually produced more than twice that

amount - 113.4 grams (i.e. 4 ounces) - using just 88 more pills. 

We find Desivo’s DEA lab report inconclusive. Fatal for DeSivo is that the

report does not indicate whether the resulting “theoretical” methamphetamine

amount is actual methamphetamine or methamphetamine mixture. If actual

methamphetamine, then the report would be wholly irrelevant as we are

determining DeSivo’s sentencing range based on methamphetamine mixture.5

Without indicating whether it tested for actual or a mixture of methamphetamine,

the report is too ambiguous to have any bearing here. 

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Nevertheless, out of an abundance of caution, we find that Smith was able to

yield only one ounce of methamphetamine per thousand pills of pseudoephedrine,

instead of the four ounces Smith’s testimony suggests. Testimony from other

witnesses indicated that one ounce was the average a cook could yield from a

thousand pills. See Saxbury testimony, Trial Tr. vol. 2, 205:6-10 (indicating that

he was able to get only an ounce of methamphetamine per thousand pills); Talda

testimony, Trial Tr. vol. 5, 87:8-16, August 22, 2005 (same); Moore testimony,

Trial Tr. vol. 3, 33:6-21, August 18, 2005 (testifying able to get less than an ounce

using between 700 to 1000 pills). In fact, John Teneyck, who was familiar with

cooking methamphetamine, testified that “if you know what you’re doing, you can

get an ounce out....if you’re not real good, you are going to get less.” Trial Tr. vol.

3, 98:15-18. While we recognize that Smith was an experienced cook, his claim

that he was able to yield four times more than what a good cook could yield

appears suspect in light of other witness testimony. At most, his claimed high rate

of return is equally plausible with the notion that he could only yield the one ounce

return yielded by other cooks applying similar methods. When facing two equally

plausible estimates, we are constrained to err on the side of caution and give the

defendant the benefit of the doubt. Therefore, we find that Smith and DeSivo

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 On November 17, 2006, DeSivo requested funds to obtain a chemical

expert, in part to determine whether it was possible for Smith and him to produce

four ounces of methamphetamine per thousand pills. See (Rec. Doc. No. 230);

Obj. Hr’g Tr. 16-7. We originally denied that motion. (Rec. Doc. No. 234). 

DeSivo asked for reconsideration, which we also denied. (Rec. Doc. Nos. 236,

238). In light of our decision today regarding Smith’s testimony, DeSivo’s request

for a chemical expert, which we already denied, is now rendered moot. 

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yielded one ounce per thousand pills.6 

DeSivo also argues that he only cooked with Smith four times. We note that

not only does Smith’s testimony clearly indicate that DeSivo and Smith cooked at

least five times, but that in fact the testimony supports eight times - five at Smith’s

house, and three at Desivo’s residence. DeSivo points to no contradictory

testimony by either Smith or another witness. Therefore, at least five times is

attributable, if not more. 

Finally, DeSivo argues Smith’s testimony concerning his supplying

activities is too speculative. Specifically, DeSivo argues that the court should

discount the number of times Smith supplied DeSivo because, when asked to

estimate whether he supplied DeSivo more than six times, Smith stated the

following: “yeah probably. I don’t know, ten to 20 times, I’d say.” Trial Tr. vol.

2, 109:13-17. DeSivo also argues as speculative Smith’s testimony regarding the

amount of methamphetamine he gave DeSivo because Smith prefaced the amount

with the term “probably.” 

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 DeSivo’s arguments are unpersuasive. The use of qualifiers do not relegate

Smith’s uncontradicted testimony to speculative status. Instead, these qualifiers at

worst suggest that Smith was estimating his and DeSivo’s drug supplying

activities, which the court, after hearing Smith on the stand and assessing his

credibility as a witness, considers credible enough to meet a preponderance of the

evidence standard. Therefore, we find that Smith supplied DeSivo at least ten

times with an ounce (28.35 grams) of methamphetamine each time. 

In sum, we will attribute 425.25 grams to DeSivo: 141.75 grams for five

instances in which Smith and DeSivo cooked one ounce of methamphetamine (5 x

28.35 grams), and 283.5 grams for the ten instances Smith supplied DeSivo with at

least an ounce of the drug (10 x 28.35 grams). 

B. Mark Saxbury

During trial, Mark Saxbury testified that he met DeSivo through a mutual

acquaintance named Billy Fenton. Trial Tr. vol. 2, 165. According to Saxbury,

DeSivo supplied him with anyhdrous ammonia “like two to three times,” which

Saxbury used to make “about an ounce” of methamphetamine each time. Id. at

168:14-169:24. The government argues this testimony establishes that 2 to 3

ounces (56.7-85.05 grams) of methamphetamine should be attributed to DeSivo for

sentencing purposes. In contrast, DeSivo argues that this testimony fails to meet

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the preponderance of the evidence standard, largely because Saxbury prefaced his

statements “two to three times” and “an ounce” with the qualifiers “like” and

“about,” respectively. See Obj. Hr’g Tr. 39:23-40:19. 

As was the case for his similar argument regarding Smith’s testimony,

DeSivo’s argument here is unpersuasive. Like Smith, Saxbury’s uncontradicted

testimony is not rendered speculative simply because he prefaced his comments

with qualifiers. After assessing the credibility of the witness when on the stand,

and keeping in mind the lower threshold the government needs to meet under a

preponderance of the evidence standard, we conclude Saxbury’s testimony

properly attributes 56.7 grams (two ounces) of methamphetamine to DeSivo for

sentencing purposes.

C. Darin Moore and Orin Talda

Darin Moore, Orin Talda, and DeSivo cooked methamphetamine together on

at least one occasion behind Darin Moore’s residence. Trial Tr. vol. 3, 32-33. 

Talda testified that normally he would get an ounce of methamphetamine from a

thousand pills. Trial Tr. vol. 5, 87:8-16. The government, relying primarily on

Orin Talda’s testimony, argues that the group’s cooking activities during this

instance yielded one ounce (28.35 grams) of methamphetamine. See Obj. Hr’g Tr.

43. DeSivo does not dispute that this cooking instance occurred, but rather

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challenges the amount yielded. In support of his argument, he points to Darin

Moore’s testimony, noting that Moore unequivocally stated that the group had

cooked “less than an ounce.” Trial Tr. vol. 3, 33:6-21. When compared to Orin

Talda, who qualified his comments by stating that he “thinks” they cooked an

ounce, see Trial Tr. vol. 5, 84:15-6, DeSivo argues that attributing an ounce of

methamphetamine to this cooking instance would be too speculative.

We agree with DeSivo. Similar to Smith and Saxbury, Talda estimated the

amount of drugs manufactured. Unlike Smith’s and Saxbury’s testimony,

however, testimony from another witness - Darin Moore - directly contradicts

Talda’s testimony. Moore unequivocally stated that this particular cooking

instance yielded less than an ounce. Further, Moore testified that the group used

between 700 to 1,000 pills. Because Talda testified that they yielded only an ounce

of methamphetamine per 1,000 pills, Moore’s suggestion that the group may have

used fewer than 1,000 pills would support DeSivo’s argument that this cooking

instance yielded less than an ounce of methamphetamine. As a result, we find that

this cooking instance yielded less than an ounce of methamphetamine.

 To determine exactly how much less, we will estimate using the average

amount of methamphetamine these cooks were able to yield from a thousand pills,

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 Although we do not find Talda credible regarding how much the group

yielded in this specific cooking instance, we find his testimony credible regarding

the group’s general yield from a thousand pills.

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which Talda testified was an ounce.7 Moore testified that in this particular cooking

instance the group used between 700 and 1,000 pills. Because we are required to

give DeSivo the benefit of the doubt and be conservative in our estimates, we will

use the low end of 700 pills. By using 30% fewer pills than normal, we estimate

this particular cooking instance yielded 30% less of methamphetamine than

normal. Because these cooks typically yielded an ounce (28.35 grams) of

methamphetamine for 1,000 pills, we conclude that in this instance they yielded

70% of an ounce of methamphetamine, or 19.84 grams.

Talda testified to another cooking instance with DeSivo, this time behind

Talda’s trailer with a woman named “Jessie.” See Trial Tr. vol. 5, 86:7-87:16. 

During this instance, Talda and DeSivo yielded an ounce of methamphetamine. Id. 

Although DeSivo in his pro se objections challenges this amount, defense counsel

during oral argument conceded that this amount is attributable to DeSivo. See Obj.

Hr’g Tr. 45-6. Therefore, we will attribute 28.35 grams of methamphetamine to

DeSivo for this cooking instance.

Talda also testified that he received an eighth of an ounce of

methamphetamine every other day from DeSivo. Trial Tr. vol. 5, 88:7-14. DeSivo

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does not dispute this testimony, but instead argues that the trial transcript does not

reveal the length of the period during which Talda received this eighth of an ounce,

and therefore the whole testimony should be deemed speculative. Obj. Hr’g Tr.

46-7. The government disagrees, and argues that Talda testified that DeSivo

supplied Talda for at least six months. Id. at 48-9.

The dispute revolves around the following testimony. After testifying that

DeSivo would deliver the drugs to Talda’s house, Talda and the prosecutor had the

following exchange:

Q: Do you know whether Chris DeSivo was working during this time

period you’re telling us about when you were making meth and when

he was dropping it off at your house?

A: I really don’t. I mean, I got him a job with Empire Insulation. We

were working together for, I don’t know, six months. I quit. And I

don’t know if he was still for Empire or not.

Q: Did there come a point when he stopped working at Empire with you?

A: I quit first.

Trial Tr. vol. 5, 89:21-90:5.

We agree with DeSivo that the above testimony does not support a finding that he

supplied Talda for six months. Talda’s testimony only establishes that he and

DeSivo worked together for six months. It does not establish that during that time

DeSivo was supplying Talda with drugs. He could have started to supply Talda

before they worked together, during, or after Talda quit his job. Unfortunately, the

prosecutor never ascertained testimony clarifying the time period. Without such

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evidence, we find it too speculative to attribute any methamphetamine amounts to

DeSivo for this supplying activity.

We attribute 48.19 grams of methamphetamine to DeSivo from Moore and

Talda’s testimony - 19.84 grams from the 700 pills DeSivo, Moore and Talda used

in one cooking instance, and 28.35 grams for the ounce manufactured during one

cooking instance with DeSivo, Talda and Jessie. 

D. Robert Jordan

Robert Jordan testified that he received between an eighth to a quarter of an

ounce of methamphetamine from DeSivo at least ten times. Trial Tr. vol. 5,

115:15-117:4. Based on this testimony, the government attributes 7 grams to

DeSivo for two of these ten times in which he supplied Jordan. DeSivo concedes

that he supplied this amount to Jordan. Obj. Hr’g Tr. 52. Therefore, we will

attribute 7 grams (2 x 1/8 ounce) to DeSivo for this supplying activity.

The government also attributes one ounce (28.35 grams) to DeSivo for an

instance in which Jordan and DeSivo cooked “maybe an ounce, ounce and half” of

methamphetamine. Trial Tr. vol. 5, 117:13-118:24. DeSivo argues this amount is

too speculative, but does not suggest why or offer evidence supporting this

argument. We disagree, and find Jordan’s testimony regarding this amount to be

credible enough to meet the preponderance of evidence standard. 

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Therefore, we attribute 35.35 grams (7 + 28.35 grams) to DeSivo for his

drug manufacturing and selling activities with Robert Jordan.

E. Jacob “Wig” White

 Jacob White testified that he received methamphetamine from DeSivo

every other day for at least a month. Trial Tr. vol. 5, 129:19-131:1, 132:8-10. In

those instances, White stated he would receive “[s]ometimes an eight ball [eighth

ounce]. Sometimes a quarter. Sometimes half ounce.” Id. at 130:4-5. DeSivo

argues that because White was not sure exactly how much he received, White’s

testimony is too speculative to be attributable to DeSivo. Obj. Hr’g Tr. 54-55.

We disagree. White’s testimony supports the fact DeSivo supplied White

with at least an eighth of an ounce of methamphetamine every other day for a

month. Simply because White testified that DeSivo sometimes supplied him with

more does not prevent the court from using the lower amount of an eighth of an

ounce. DeSivo offers no evidence to contradict this amount, and we find White’s

testimony to be credible. 

Therefore, we will attribute 52.5 grams (15 x 3.5 grams) to DeSivo from

White’s testimony.

F. John Teneyck

John Teneyck testified that he received methamphetamine from DeSivo on

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several occasions. DeSivo concedes that he supplied Teneyck with a total of 63.7

grams of methamphetamine - twice with an eighth of an ounce (7 grams), and then

two other times with an ounce each (56.7 grams). Obj. Hr’g Tr. 58:20-59:2. 

Teneyck also testified that DeSivo indirectly supplied him on four to six other

occasions - two to three times with a quarter of an ounce through Scott

Swackhammer, see Trial Tr. vol. 3, 69:10-70:4, and two to three times with an

eighth of an ounce through Robert Jordan, see id. at 73:4-22. DeSivo argues these

amounts are too speculative because Teneyck received them indirectly.

We disagree. Teneyck testified that he was in direct contact with DeSivo,

and that he had an understanding with DeSivo that Swackhammer and/or Jordan

would facilitate buys between Teneyck and DeSivo. Trial Tr. vol. 3, 69:3-14;

71:11-15. Such testimony is credible testimony that establishes Teneyck had

personal knowledge that his indirect purchases came from DeSivo. 

Therefore, we will attribute the following amounts to DeSivo for these

indirect purchases - half an ounce (14 grams) for the two quarter ounce buys

facilitated through Swackhammer, and a quarter of an ounce (7 grams) for the two

eighth of an ounce buys facilitated through Jordan. The total amount of

methamphetamine attributable to DeSivo from Teneyck’s testimony is 84.7 grams.

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G. Mark Marcoccia

Mark Marcoccia testified that DeSivo supplied him with methamphetamine

approximately ten to fifteen times. See Trial Tr. vol. 3, 171:22-5, 174:4-16. In

those instances, DeSivo supplied Marcoccia with at least an eighth of an ounce,

and on a couple of occasions DeSivo gave Marcoccia an ounce. Id. at 174:4-16,

174:19-175:3. Despite testimony justifying much more, the government asks the

court to attribute only the two ounces (56.7 grams) Marcoccia received from

DeSivo for those couple of occasions when he received more than an eighth of an

ounce. DeSivo argues that the testimony supporting this amount is too speculative. 

We disagree. When asked about the couple of times in which he received

more than an eighth of an ounce, Marcoccia testified that he received “maybe an

ounce at a time.” Id. at 174:25. Marcoccia reaffirmed this amount. Id. at 175:1-3.

Although he qualified his original answer with the word “maybe,” we find, as we

did for Smith and others, that his testimony is credible enough to meet the

preponderance of the evidence standard. We again note that DeSivo has not

offered any contradicting evidence, and although the burden is on the government,

we find that they have met this burden. 

Therefore, we attribute 56.7 grams of methamphetamine from Marcoccia’s

testimony to DeSivo.

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I. Ricky Johnson/Mark Worthington

 Ricky Johnson testified that he received an ounce (28.35 grams) of

methamphetamine from DeSivo through Mark Worthington. DeSivo advances the

same argument as he did for Teneyck, suggesting Johnson’s indirect purchases are

too speculative to attribute to DeSivo. As was the case with Teneyck’s testimony,

we find Johnson’s testimony credible on this point, and overrule DeSivo’s

objection. Johnson testified that he accompanied Worthington to DeSivo’s house,

Worthington entered DeSivo’s house, and came back with an ounce of

methamphetamine. Trial Tr. vol. 3, 10:10-11:4. This testimony is enough to

establish by a preponderance that DeSivo was the supplier of that ounce. 

Therefore, we attribute 28.35 grams of methamphetamine to DeSivo from

Johnson’s testimony.

J. Chad Peters

Chad Peters testified that he worked on DeSivo’s garage, and that DeSivo

would at times repay him with methamphetamine. Trial Tr. vol. 5, 51:19-53:4. 

For two months, DeSivo paid Chad Peters at various times a gram a day of

methamphetamine. Id. at 54:3-19. On several occasions they cooked the drug

together, including two instances whereby DeSivo gave Chad Peters a couple of

grams of methamphetamine. Id. at 59:8-21. In addition, Peters testified that he had

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partied 20-30 times with DeSivo, which sometimes included the use of

methamphetamine supplied by DeSivo. Id. at 59:22-60:13. When asked what was

the most methamphetamine he ever saw at DeSivo’s house, Peters stated “I don’t

know. Probably, I don’t know, a half ounce probably. Fifteen grams probably at

the most.” Id. at 59:25-60:1. Peters reaffirmed the fifteen gram amount later

during his testimony. See id. at 63:20-22. As a result, the government argues

fifteen grams is attributable from Peters’ testimony. DeSivo argues that the

equivocal nature of Peters’ testimony renders this amount speculative.

We again disagree with DeSivo, finding that, after taking into consideration

all of Peters’ testimony, fifteen grams is a credible amount to attribute to DeSivo. 

Peters’ testimony establishes that DeSivo was a frequent supplier of

methamphetamine to Peters, with DeSivo sometimes paying Peters with

methamphetamine for work done around DeSivo’s house, and other times

supplying Peters during the many parties the pair had. In this context, Peters’

assertion that he saw fifteen grams at DeSivo’s house is credible, despite the

equivocal language used by Peters to make this assertion. Again, the government

need only meet the preponderance of the evidence standard. The relationship

shared between Peters and DeSivo, coupled with the fact Peters reaffirmed his

initial assertion of fifteen grams, is enough evidence to meet this standard. 

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23

Therefore, we attribute 15 grams of methamphetamine to DeSivo from this

testimony.

K. Michelle Roberts

Michelle Roberts was the girlfriend of a gentleman named Billy Fenton. She

testified that she and her boyfriend would use an eighth of an ounce (3.5 grams) of

methamphetamine a day, for four to six months. Trial Tr. vol. 6, 10:22-4; 12:10-

18, August 23, 2005. She further testified that the drugs came from DeSivo. Id. at

15:9-11. DeSivo does not challenge that the drugs came from him, but rather

argues that because Roberts stated she sometimes got more and sometimes got less

than an eighth of an ounce, her testimony is speculative. We again reject this

argument, noting that Roberts’ testimony amply supports the government’s

assertion that the whole amount testified to by Roberts should be attributed to

DeSivo. 

Therefore, we attribute 420 grams (120 days (4 months) x 3.5 grams = 420

grams) to DeSivo from Roberts’ testimony.

L. Robert Landmesser

Robert Landmesser testified that DeSivo supplied him with

methamphetamine indirectly through Kyle Frisbee. Trial Tr. vol. 3, 134:21-25. He

also testified that he used methamphetamine with DeSivo. Id. at 135:15-22. 

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24

Landmesser testified that on three separate occasions he received an ounce (28.35

grams) of methamphetamine from DeSivo through Frisbee. Id. at 146:22-147:14. 

Landmesser also testified that he received on five different occasions at least a

gram of methamphetamine in the same indirect manner. Id. at 147:14-22. Finally,

he testified that he saw between one to two ounces of meth at DeSivo’s residence. 

Id. at 135:15-136:4. DeSivo argues that Landmesser’s indirect purchases are too

speculative. 

Once again, we reject this argument. Landmesser testified that Frisbee

specifically told him that he could get from DeSivo as much meth as Landmesser

wanted. Id. at 146:22-25. We find this testimony to be credible enough to meet

the preponderance standard and establish that DeSivo was the source of

Landmesser’s drug purchases, in part because of the extensive evidence put on by

the government regarding DeSivo’s overall supplying activities. 

Therefore, we attribute 118.4 grams of meth to DeSivo from Landmesser’s

testimony - 85.05 grams total for each ounce sold to Landmesser on three different

occasions, 5 grams total for each gram sold to him on five different occasions, and

the 28.35 grams he witnessed at DeSivo’s residence.

The following table summarizes the amount of methamphetamine we

attribute to DeSivo from each witness:

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Witness Totals

Name Amount (grams)

Freeman Smith 425.25 

Mark Saxbury 56.7 

Darren Moore/Orin

Talda

 48.19 

Robert Jordan 35.35 

Jacob White 52.5

John Teneyck 84.7

Mark Marcoccia 56.7

Ricky Johnson/Mark

Worthington

 28.35

Chad Peters 15

Michelle Roberts 420

Robert Landmesser 118.4

Total 1,341.14

 As indicated, the total attributable amount is 1,341.14 grams of methamphetamine,

which is less than the probation office’s finding that more than 1.5 kilograms but

less than 5 kilograms of methamphetamine was involved in DeSivo’s

methamphetamine conspiracy. Under U.S.S.G. § 2D1.1(c)(4), 1,341.14 grams of

methamphetamine results in a base offense level of 32, which we find is DeSivo’s

base offense level.

2. Leadership Enhancement

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26

DeSivo also challenges the four level enhancement he received under the

presentence report for his leadership role in the conspiracy. U.S.S.G. § 3B1.1(a)

requires a four level enhancement to a defendant’s offense level “if the defendant

was an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” DeSivo argues that he was not a leader

or organizer of anybody, and that he merely would, when needed, contact someone

to help cook and/or distribute methamphetamine. He further argues that his

relationship with the various coconspirators was at best akin to an independent

contractor, whereby he exerted no control or authority. Obj. Hr’g Tr. 85-87. The

government disagrees, and argues that DeSivo was a leader and/or organizer

because he would bank roll the illegal activity, line up the cooks, the ingredients,

the buyers and suppliers, and generally was responsible for recruiting accomplices. 

Id. at 90-94. 

To be considered an organizer or leader in the Third Circuit, “the defendant

must have exercised some degree of control over others involved in the

commission of the offense.” United States v. Heibling, 209 F.3d 226, 243 (3d Cir.

2000) (quoting United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992)). 

Other factors considered include the decision-making authority of defendant, the

nature of participation in the commission of the offense, the recruitment of

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27

accomplices, the claimed right to a larger share of fruits of the crime, the degree of

participation in planning or organizing the offense, and the nature and scope of the

illegal activity. U.S.S.G. § 3B1.1 cmt. 4. Evidence of every factor is not a

prerequisite for a finding under U.S.S.G. § 3B1.1. United State v. Bates, 54 F.3d

125, 128 (3d Cir. 1995). Rather, the court need only find sufficient authority to

justify the enhancement. Id. at 129. 

 Futher, the defendant must have organized or led one or more participants. 

U.S.S.G. § 3B1.1 cmt. 2. A participant is defined as “a person who is criminally

responsible for the commission of the offense, but need not be convicted.” 

U.S.S.G. § 3B1.1 cmt. 1. 

 Based on testimony from more than a dozen witnesses, there is no question

that there were at least five participants involved in DeSivo’s conspiracy to

manufacture and distribute methamphetamine. Rather, the issue here is whether

DeSivo led or organized at least one participant by exerting some degree of control

over that person. The government argues that at the very least DeSivo exercised

sufficient control over his wife, Anne Marie DeSivo. 

We agree. Anne Marie DeSivo, at age 18, married the then 42-year old

DeSivo one month before DeSivo’s methamphetamine conspiracy began. Trial Tr. 

vol. 3, 186; vol. 4, 81:13-17, August 19, 2005. Prior to her marriage, Mrs. DeSivo

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8

 Although this answer was in response to a specific question concerning

another charge - DeSivo’s attempt to obstruct justice by having Mrs. DeSivo lie on

his behalf - her response describes the general relationship shared by the couple. 

See also id. at 30:22 (“I always just did what Chris wrote to me.”). 

28

had never tried methamphetamine, nor was involved in the methamphetamine

trade. Trial Tr. vol. 71:10-23. As Mrs. DeSivo testified, she “always believed what

[DeSivo told her] and done [sic] everything he has said for [her] to do.”8

 Id. at

41:10-13. Mrs. DeSivo’s primary job was to obtain the ingredients necessary to

manufacture methamphetamine - sudafed pills, batteries, ether, roto, etc. Trial Tr.

vol. 3, 193:6-11; see also Smith testimony, Trial Tr. vol. 2, 103 (stating that Mrs.

DeSivo supplied the pills); Moore testimony, Trial Tr. vol. 3, 39 (stating that

DeSivo would direct his wife to get the pills). Sometimes, DeSivo would give her

money he earned from prior sales of methamphetamine to help her purchase these

ingredients. Trial Tr. vol. 3, 190:2-18. Other times she would steal for him. Id. at

191:11-15. In a video taken while the couple was hiding out, DeSivo refers to his

wife as “my chief cook,” which Mrs. DeSivo stated meant she was his sidekick. 

Id. at 204:1-205:5; Trial Tr. vol. 4, 62:23-63:22. 

This testimony establishes that DeSivo exerted sufficient control over the

actions of Mrs. DeSivo, who would do anything he asked, which included

purchasing and stealing ingredients used to manufacture methamphetamine.

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DeSivo’s own words suggest she was treated like an employee, as she was his

“chief cook” for methamphetamine. Not only was he responsible for directing her

actions, he was responsible for recruiting her as an accomplice, as she was never

involved in the methamphetamine trade prior to her marriage to him. By recruiting

his wife into the methamphetamine trade and proceeding to exert considerable

control over her involvement in his methamphetamine manufacturing endeavors,

DeSivo acted as an organizer and leader of at least one participant in his

conspiracy.

DeSivo’s sentencing memorandum implicitly argues that to qualify for the

four level enhancement, DeSivo must be found to have organized or led at least

five participants, not merely one. This interpretation of U.S.S.G. § 3B1.1(a),

however, is not only unsupported by the guideline’s language and commentary, but

is contradicted by caselaw. 

U.S.S.G. § 3B1.1(a)’s language is clear. It states the defendant must have a 

leadership role in the criminal activity only. Even though that activity must

involve at least five participants, U.S.S.G. § 3B1.1(a) does not state that the

defendant must have led or organized all five or more participants. The guideline

could have done so by switching “criminal activity” and “five or more

participants,” thereby having section 3B1.1(a) read as follows: “if the defendant

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30

was an organizer or leader of five or more participants involved in a criminal

activity....” U.S.S.G. § 3B1.1(a) is not worded in this manner, however. Instead,

section (a)’s explicit language demonstrates that the defendant need not be a leader

or organizer of five or more participants to qualify for a four level enhancement. 

This interpretation is further supported by comment 2 of U.S.S.G. § 3B1.1. 

Comment 2 states that “[t]o qualify for an adjustment under [section 3B1.1], the

defendant must have been the organizer, leader, manager, or supervisor of one or

more other participants.” By its terms, comment 2 is intended to be read in

conjunction with all of section 3B1.1. Reading section 3B1.1(a) and comment 2

together, a defendant will qualify for a four level enhancement when leading or

organizing at least one participant in criminal activity involving five or more

participants. 

This interpretation has been adopted by several courts. See United States v.

Antillon-Castillo, 319 F.3d 1058, 1060 (8th Cir. 2003) (noting that a defendant

need not lead all other participants in order to be a leader under section 3B1.1(a));

United States v. Mijangos, 240 F.3d 601, 604 (7 th Cir. 2001) (interpreting section

3B1.1(a) as requiring a defendant to have organized or in some way directed

another member of the conspiracy); see also United States v. Morris, 1998 U.S.

App. LEXIS 10139, at *4 (4 th Cir. 1998) (unpublished) (holding that section

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31

3B1.1(a)’s language “does not require that a defendant have direct control or

supervisory power over five or more independent conspirators”, and quoting

comment 2 to stand for the proposition that a defendant need only lead one

participant to qualify for the four level enhancement). DeSivo’s argument

suggesting that section 3B1.1(a) requires that a defendant lead or organize five or

more participants runs counter to section 3B1.1(a)’s language, comment 2, and the

relevant caselaw. 

Because we find that DeSivo led and organized his wife - a participant in the

conspiracy that included five or more participants - DeSivo is subject to a four

level enhancement under U.S.S.G. § 3B1.1(a). We adopt the presentence report on

this point, and add four offense levels to DeSivo’s base offense level of 32,

resulting in an offense level of 36.

 3. Weapons Possession and Obstruction of Justice

In his pro se written objections, DeSivo argues that the presentence report

improperly assessed enhancements for his obstruction of justice conviction and

weapons possession conviction. For each conviction, he received a two level

enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) and U.S.S.G. § 3C1.1,

respectively. DeSivo argues that there was not sufficient evidence to support these

enhancements.

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This argument has no merit. We note that a jury, deliberating under a

beyond a reasonable doubt standard, convicted DeSivo for both weapons

possession and obstruction of justice. After reviewing the evidence independently

under a much lower preponderance standard, we agree with the jury verdict and

therefore find the presentence report properly granted DeSivo a total four level

enhancement for his weapons possession and obstruction of justice convictions. 

This brings his total offense level to 40.

4. Criminal History

DeSivo argues, again in his pro se written objections, that the presentence

report incorrectly stated his criminal history category as a category VI. 

Specifically, DeSivo objects to paragraphs 57-60 and 62-65 in the presentence

report. We will discuss each main objection in turn.

Pursuant to U.S.S.G. § 4A1.1(a), paragraphs 57 and 58 of the presentence

report awarded a total of six criminal history score points to DeSivo. In paragraphs

17 and 18 of his original objections, DeSivo argues this is a miscalculation because

the convictions described in paragraphs 57 and 58 were unclassified

misdemeanors. He also argues that paragraph 57 does not accurately reflect

information from relevant official court records, and that paragraph 58

misconstrues the actual charge upon which he was convicted.

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9

 The two sentences described in paragraph 58 are treated as one sentence

for calculating DeSivo’s criminal history score because they were imposed in

related cases. See U.S.S.G. § 4A1.2(a)(2).

33

None of his arguments has any merit because it is the maximum sentence

that determines the number of criminal history points awarded under U.S.S.G. §

4A1.1(a), not simply the charge or its classification. U.S.S.G. § 4A1.1(a) directs a

court to attribute 3 points to defendant’s criminal history score for “each prior

sentence of imprisonment exceeding one year and one month.” The phrase

“sentence of imprisonment” refers to the maximum sentence imposed. U.S.S.G. §

4A1.2(b)(1). Both paragraphs 57 and 58 describe crimes that qualify for U.S.S.G.

§ 4A1.1(a)’s three point enhancements because each crime resulted in maximum

sentences of more than a year and one month - the conviction in paragraph 57

resulted in a 3 year maximum sentence, and the two convictions detailed in

paragraph 58 resulted in maximum sentences of 3 and 4 years, respectively.9

Because DeSivo does not challenge the accuracy of these sentences, the

presentence report accurately attributes six total points. Whether or not the report

accurately reflected the charge or its classification has no bearing here, and

therefore DeSivo’s objections to paragraphs 57 and 58 are overruled.

DeSivo objects to paragraph 59 of the presentence report, arguing that the

report should have calculated 1 criminal history point instead of 3 points for a

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34

conviction resulting in a sentence of 48 hours to 23 months, 29 days of

imprisonment. As mentioned above, criminal history points are based on the

maximum sentence of a crime. Here, the presentence report correctly determined

that the maximum sentence of 23 months, 29 days resulted in 3 criminal history

points for DeSivo. Therefore, DeSivo’s objection to paragraph 59 is overruled.

 DeSivo objects to paragraph 60 of the presentence report, arguing that it

incorrectly attributed 1 criminal history point to him for a Driving While Alcohol

Impaired conviction that resulted in a fine only. U.S.S.G. §§ 4A1.1© and

4A1.2(c)(1), however, suggest otherwise and support the presentence report’s

calculations. Section 4A1.1© directs a court to add 1 criminal history point for

offenses that do not result in imprisonment. Section 4A1.1(c)(2) further explains

that misdemeanors that do not fall within certain exceptions may be counted under

Section 4A1.1©. Because Driving While Alcohol Impaired does not fall within

any of the enumerated exceptions, the presentence report correctly attributed 1

criminal history point. Therefore, we also overrule DeSivo’s objection to

paragraph 60.

Finally, DeSivo objects to paragraphs 62-65 of the presentence report,

arguing the points awarded in these paragraphs stem from facts that were not

properly placed in front of the jury, which DeSivo argues conflicts with the

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Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). 

Paragraphs 63 and 64 add three total criminal history points to DeSivo’s base

criminal history score of 16 - two points because DeSivo was on parole while the

offense occurred, see U.S.S.G. § 4A1.1(d); and one point because DeSivo

committed the instant offense less than two years after being released from

imprisonment, see U.S.S.G. § 4A1.1(e). Neither Apprendi nor any other federal

case holds that facts supporting these additional calculations have to be put in front

of the jury. In fact, the facts supporting these additions, which are facts concerning

DeSivo’s prior criminal acts, may in some circumstance not even be permitted to

reach the jury. See F.R.E. 404(b). Indeed, the practice of the federal courts have

been to consider these issues at the sentencing stage regardless of whether they

were in front of the jury at the trial stage. As a result, DeSivo’s objections to

paragraph 63 an 64 are also overruled. 

As for his objections to paragraphs 62 and 65, we also overrule them. Those

paragraphs are not substantive, but rather simply reiterate the criminal history score

sums for both DeSivo’s base criminal history score (16) and his final score (19). 

We conclude that the presentence report accurately calculated both numbers. His

total criminal history score of 19 results in a criminal history category of VI. 

In summary, DeSivo’s total offense level is 40 and his criminal history

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36

category is VI, which results in a 360 months to life sentencing guideline range. 

Although the presentence report calculated a higher total offense level (42), the

sentencing guideline range is the same. As mentioned before, DeSivo’s downward

departure requests are overruled because they include arguments more appropriate

for consideration under the factors enunciated in 18 U.S.C. § 3553(a). We will

schedule sentencing, and at that point the court will consider DeSvio’s arguments

that are relevant to the factors in 18 U.S.C. § 3553(a). 

 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

 

Case 4:04-cr-00010-MWB Document 247 Filed 01/09/07 Page 36 of 38
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, :

: CRIMINAL NO. 4:04-CR-10

v. :

: (Judge McClure)

CHRISTOPHER P. DeSIVO :

O R D E R

January 9, 2007

For the reasons set forth in the foregoing memorandum, 

IT IS ORDERED THAT:

1. DeSivo’s advisory sentencing guideline range is 360 months to life

imprisonment based on a total offense level of 40 and a criminal

history category of VI. 

2. Sentencing is scheduled for January 24, 2007 at 10:00 a.m. in

Courtroom No. 3, Third Floor, Federal Building, 240 West Third

Street, Williamsport, Pennsylvania. 

 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

 

Case 4:04-cr-00010-MWB Document 247 Filed 01/09/07 Page 37 of 38
 

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