1The Honorable Rodney W. Sippel, United State District Judge for the Eastern District of

Missouri, sitting by designation.

2The Honorable Thomas M. Shanahan, United States District Judge for the District of

Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2374

__________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the District

 * of Nebraska

Oscar Flores Alvarez, *

 *

Appellant. *

____________

Submitted: November 18, 1998

Filed: February 22, 1999

___________

Before BEAM, LAY, Circuit Judge, and SIPPEL,1 District Judge.

SIPPEL, District Judge.

Oscar Alvarez entered a conditional guilty plea to two charges of distribution of

methamphetamine, in violation of 21 U.S.C. § 841 (a) (1). At sentencing, the district court2

found a total of 990.27 grams of methamphetamine attributable to Alvarez. After adjusting
2

his base level downward three levels for acceptance of responsibility, the district court

sentenced him to 121 months imprisonment. Alvarez appeals his sentence, contending 

 (1) the district court should have held the government to a clear and convincing standard

of proof with respect to the total amount of methamphetamine attributed to Alvarez; (2) the

district court should not have considered information from government witness Juan Neri;

and (3) the government failed to prove by clear and convincing evidence, or by a

preponderance of the evidence, that 933.57 grams of methamphetamine should have been

attributed to Alvarez . We affirm.

I.

On July 17, 1996, Nebraska State Patrol officers intercepted nearly a kilogram of

methamphetamine at Eppley Airfield in Omaha, Nebraska. On that date, two men, later

identified as Victor Pena Tenorio and Meslar Montiel, attracted the officers’ attention and

were followed from the airport terminal. The two men appeared to be traveling together.

Upon separate questioning, Montiel and Tenorio denied that they knew each other. Tenorio

later testified that he had just met Montiel that day when they purchased their tickets at the

airport ticket counter. 

While reviewing Montiel’s ticket, one of the officers noted that Montiel had written

“Interstate” and “154" on the ticket jacket. Montiel was searched and released. A search

of Tenorio’s luggage, however, revealed the seized methamphetamine. Tenorio was

arrested.

Although Tenorio claims that he first met Montiel at the airport ticket counter,

Tenorio’s and Montiel’s ticket stubs indicated that they were purchased with cash on the

same day from an Anaheim travel office. Tenorio’s ticket number was the next sequential

ticket number after Montiel’s.

The next day, an agent of the Immigration and Naturalization Service (INS) received

information that a possible illegal alien with the last name of Montiel might be staying at the
3This evidence was presented in the form of transcripts from the evidence suppression

hearings in this case.

3

Interstate Inn in Council Bluffs, Iowa. INS agents went to the Interstate Inn and found

Alvarez in room 166 with two other men. One of the men gave his name as Nestor

Figueroa. The agents searched Figueroa’s room, number 157, and found the torn plane

ticket of Meslar Montiel in the trash can. The INS agents took Alvarez and

Figueroa/Montiel into custody. Evidence at the sentencing hearing suggested that Montiel and

Figueroa were the same person.

On December 18, 1996, a six count superseding indictment was returned against

Oscar Alvarez, Victor Pena Tenorio, and a third defendant, Juan Carlos Neri. Neri had been

arrested on August 7, 1996 for possession of cocaine. The indictment charged them with

conspiracy to distribute methamphetamine, conspiracy to distribute cocaine, and four

substantive counts of distribution or possession with intent to distribute either

methamphetamine or cocaine. The conspiracy charge stemmed in part from the

methamphetamine seized at Eppley Airfield. 

Alvarez pled guilty to counts three and four of the indictment which charged him with

the distribution on May 5 and May 13, 1996 of a total of 56.7 grams of methamphetamine.

A sentencing hearing was held on February 4, 1998. The district court reviewed evidence

that connected Tenorio to Montiel at the airport and Montiel to Alvarez at the Interstate Inn.3

In addition, the district court considered testimony and interview reports of law enforcement

officers about their interviews of Juan Neri after his August 7, 1996, arrest. The interview

reports memorialized statements made by Neri concerning Alvarez’s involvement in drug

dealing. Some of the interviews were attended by FBI Special Agent Edmundo Mireles.

He testified to the authenticity of the reports and to Neri’s statements therein.

Agent Mireles’s testimony and the interview reports recounted Neri’s admission that

he had purchased drugs from Alvarez and that Alvarez was involved with the drugs seized

at Eppley Airfield on July 17, 1996. Alvarez challenged the credibility of Neri’s reported

statements. Although the district court told Alvarez that the court would grant a continuance
4The district court found 990.27 grams attributable to Alvarez. This amount equals the

933.57 grams seized at Eppley Airfield on July 17, 1996, plus the 56.7 grams that Alvarez pled

guilty to distributing.

4

and would produce Neri for cross-examination on these points, Alvarez ultimately declined

the district court’s offer.

The presentence report (PSR) determined that Alvarez should have been found

responsible for a reasonably foreseeable quantity of more than a kilogram of

methamphetamine, setting his base offense level at 36. The PSR recommended that Alvarez

receive a three level increase for being the manager or supervisor in a criminal activity

which involved five or more participants or was otherwise extensive. After subtracting three

points for Alvarez’s acceptance of responsibility, the PSR calculated a total offense level

of 36. Based on this offense level and Alvarez’s Criminal History Category of II, the

guideline imprisonment range would have been 210-262 months. The government adopted

the finding and recommendations of the PSR. 

 Alvarez objected to the PSR’s calculation of his base offense level. He asserted that

his base offense level should be calculated solely on the 56.7 grams of methamphetamine

to which he pled guilty. After a three level reduction for his acceptance of responsibility,

he argued his base offense level of should have been 17. This base offense level combined

with his Criminal History Category of II would have resulted in a guideline imprisonment

range of 27-33 months. 

 On April 17, 1998, Alvarez was sentenced. The district court rejected both the

government’s and Alvarez’s sentencing calculations. Instead, the court determined that less

than a kilogram4 of methamphetamine was attributable to Alvarez. After applying a three

level deduction for acceptance of responsibility, Alvarez’s final base offense level was 31.

This level combined with his Criminal History Category of II resulted in a guideline

imprisonment range of 121-151 months for each count. The district judge sentenced

Alvarez to a term of imprisonment of 121 months on each count, to be served concurrently.
5

II.

Alvarez asserts that the district court erred in determining the drug quantity that

should be attributed to him for sentencing purposes. In particular, Alvarez claimed that the

district court erred by (1) failing to use the clear and convincing standard of proof for

relevant conduct evidence; (2) considering out of court statements made by a co-defendant

Juan Neri; and (3) attributing the 933.57 grams of methamphetamine seized at the airport

to Alvarez.

We review a district court’s drug quantity calculation for clear error. United States

v. Santana, 150 F.3d 860, 864 (8th Cir. 1998). A district court’s calculation will only be

reversed if an examination of the entire record “‘definitely and firmly convinces us that a

mistake has been made.’” Id. (citations omitted.)

A. Standard of Proof 

At Alvarez’s sentencing, the district court stated that the preponderance of the

evidence standard applied to the government’s burden of proof to establish the quantity of

controlled substance attributable to Alvarez. The Sentencing Guidelines recommend that

a district court use the preponderance of the evidence standard in resolving disputes

regarding the application of the guidelines to the facts of the case. U.S.S.G. §6A1.3,

comment. (Nov. 1998). This circuit has also held that the facts relied upon by a district court

at sentencing need be proved only by the preponderance standard. United States v. Wise,

976 F.3d 393, 400 (8th Cir. 1992). 

However, this circuit has also previously suggested that when a district court's

consideration of relevant conduct results in a drastic increase in a sentence, the

preponderance standard may not satisfy due process. See United States v. Geralds, 158 F.3d

977, 979 (8th Cir. 1998); United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991)(“the

preponderance standard the Court approved for garden variety sentencing determinations
5The original median guideline sentence was 30 months. The defendant was sentenced to

360 months imprisonment.

6

may fail to comport with due process where, as here, a sentence enhancement factor

becomes ‘a tail which wags the dog of substantive offense.’” (quoting McMillan v.

Pennsylvania, 477 U.S. 79, 88 (1986)); Wise, 976 F.3d at 401 (8th Cir. 1992)(due process

concerns must be addressed when the consideration of relevant conduct so greatly increases

a defendant’s sentence that the conduct “essentially becomes an element of the offense for

which the defendant is being punished”).

Federal case law is unsettled regarding the extent to which a sentence must be

enhanced, through relevant conduct evidence, in order to require heightened standards of

proof to support that evidence. In United States v. Galloway, 976 F.2d 414 (8th Cir.

1992)(en banc) this circuit held that a three-fold increase in the defendant’s sentencing

range, based on relevant conduct evidence, was not so extreme as to raise due process

concerns which would require a heightened standard of proof. The Third Circuit, however,

has found that a twelve-fold departure from the median of the initial guideline range, based

on sentencing factors, required the application of the clear and convincing standard of

proof.5

Alvarez contends that his applicable sentencing guideline range should be limited to

the offense to which he pled guilty, 27-33 months. He argues that the PSR’s and

government’s advocation of a 210-262 month sentencing guideline range, an almost eightfold increase at the high end of the ranges, triggers the necessity of the clear and convincing

standard to prove relevant conduct factors. Alvarez’s calculation is misleading in that it fails

to address the ultimate issue, which is, the actual sentence imposed by the district court.

The district court found Alvarez’s final sentencing guideline range to be 121-151

months. He was sentenced to 121 months. This sentence represents a four-fold departure

from the median, 30 months, of his initial guideline range. This increase, based on the

district court’s consideration of relevant conduct, is not “so extreme or overwhelming as to
7

raise due process concerns” which would require the imposition a heightened standard of

proof. Id. at 426.

B. The Reliability of Statements made by Juan Neri

At the sentencing hearing, Special Agent Edmundo Mireles testified that Juan Neri

told him that Alvarez was involved with the drugs seized at Eppley Airfield. Several

interview reports between Neri and law enforcement officers were also admitted into

evidence. These reports reflected statements made by Neri that Alvarez was at the Interstate

Inn on July 17, 1996 for the purpose of drug dealing, and that he was involved with the drug

shipment that was intercepted that day at the airport. On appeal, Alvarez challenges the

admissibility of Neri’s statements. He contends that they contain discrepancies and,

therefore, are not reliable.

Hearsay evidence is admissible at sentencing and can form the basis for sentencing

determinations. Wise, 976 F.2d at 402. Whether hearsay evidence is sufficiently reliable

to be considered for sentencing purposes depends on the particulars of each case. Id. at 403.

Testimony by a law enforcement officer regarding statements made by co-defendants may

be sufficient to attribute drug quantities to a defendant. See United States v. Kenyon, 7 F.3d

783, 785 (8th Cir. 1993)(drug agent’s calculation of drug quantity attributable to defendant

based on co-defendants’ statements could be deemed credible and sufficient to meet the

preponderance standard).

The district court could properly have found agent Mireles’ testimony credible

concerning Neri’s statements linking Alvarez to the 933.57 grams of methamphetamine

seized at the airport. Mireles’s evidence was supported in substance by Neri’s statements

to other law enforcement officers as reflected in their reports. Furthermore, Alvarez was

given ample opportunity by the district court to call Neri as a witness and challenge these

statements. Alvarez declined to do so. We find that Neri’s statements were sufficiently
8

reliable to support the district court’s consideration of those statements to determine the drug

quantity attributable to Alvarez. 

C. Amount of Methamphetamine Attributed to Alvarez

Alvarez appeals the district court’s determination of the amount of methamphetamine

attributable to him. He does not dispute that the 56.7 grams to which he pled guilty were

properly attributed to him. Rather, he challenges the attribution to him of the 933.57

grams of methamphetamine seized at Eppley Airfield. 

In calculating the quantity of drugs attributable to a defendant at sentencing, the

district court may consider, as relevant conduct under U.S.S.G. § 1B1.3, the conduct charged

in dismissed counts. United States v. Karam, 37 F.3d 1280, 1285 (8th Cir. 1994). In

exchange for his guilty plea, the government dismissed the conspiracy charges against

Alvarez. Those charges were based in part on the methamphetamine seized at the airport.

A review of the record reveals sufficient evidence to support the district court’s finding.

Therefore, we conclude that the district court’s determination that a total of 990.27 grams

of methamphetamine were attributable to Alvarez is reasonably supported by the evidence

and not clearly erroneous.

III.

For the reasons stated above, we affirm Alvarez’s sentence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.