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No. 95-2808

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Maribel Tauil-Hernandez, *

*

Defendant - Appellant. *

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Appeals from the United States

No. 95-2810 District Court for the

___________ District of Nebraska.

United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Julio Mordan, *

*

Defendant - Appellant. *

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 Submitted: February 13, 1996

 Filed: July 3, 1996

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Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

LOKEN, Circuit Judge.

The United States filed a multi-count indictment charging Maribel

Tauil-Hernandez, Julio Mordan, Eladio Rosario, Alfredo Diaz, Oswaldo

Aguirre-Helming, Monica Anderson, and Maria Diaz with narcotics and

conspiracy violations. Each defendant pleaded guilty to conspiracy to

distribute cocaine in violation of 21 U.S.C. § 846, and the government

dropped the remaining charges. Tauil-
 The HONORABLE THOMAS M. SHANAHAN, United States District

1

Judge for the District of Nebraska.

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Hernandez and Mordan now appeal their sentences. Mordan raises a

significant legal issue, whether the Fourth Amendment exclusionary rule

applies to federal sentencing proceedings. We affirm.

I. Tauil-Hernandez.

A. Drug Quantity. Tauil-Hernandez timely objected to the quantity

of cocaine attributed to her for sentencing purposes in her Presentence

Investigation Report. After an evidentiary hearing at which Rosario,

Alfredo Diaz, and two agents testified for the government, the district

court overruled this objection and attributed between five and fifteen

1

kilograms to Tauil-Hernandez. That resulted in a sentence of 120 months

in prison and five years of supervised release. Tauil-Hernandez argues

that this quantity finding is clearly erroneous because she was only

responsible for distributing between three-and-one-half and five kilograms.

That lesser quantity would reduce her statutory minimum sentence from ten

years to five, see 21 U.S.C. §§ 841(b)(1)(A) and (B), and her Guidelines

base offense level from thirty-two to thirty, see U.S.S.G. §§ 2D1.1(c)(4)

and (5).

The evidence at the sentencing hearing, viewed most favorably to the

government, established that Tauil-Hernandez met Rosario in New York City

in the fall of 1992 and persuaded him to begin distributing cocaine in

Omaha. Between October 1992 and April 1993, Tauil-Hernandez made six trips

to New York City. On each occasion, she transported 450-500 grams of

cocaine purchased by Rosario to Omaha, where the conspirators distributed

the cocaine from an apartment rented by Tauil-Hernandez. 

On April 4, 1993, police searched an Omaha motel room, seizing 3.4

grams of cocaine, a large amount of cash, and a semi-automatic
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pistol. They arrested Tauil-Hernandez as she returned to the room. Though

charges resulting from this arrest were dropped, the arrest ended TauilHernandez's dealings with Rosario. However, in November 1993, she began

transporting cocaine to Omaha for her step-brother, Alfredo Diaz. On March

17, 1994, police arrested her at an Omaha bus station returning from New

York City with 500 grams of cocaine hidden in a pillow and one gram in her

cosmetics case. 

On appeal, Tauil-Hernandez concedes that 4650 to 4750 grams of

cocaine should be attributed to her for sentencing purposes: the 2,950

grams she transported for Rosario, the 1700 to 1800 grams she transported

for Alfredo Diaz, and the 4.4 grams seized in her motel room and cosmetics

case. However, that leaves the government 250 to 350 grams short of five

kilograms. The government points to two additional transactions, which

Tauil-Hernandez argues were not part of her role in the conspiracy. First,

Rosario testified that 500 grams of cocaine were transported from San Diego

to Omaha by another courier in February 1993, while Tauil-Hernandez was

hospitalized for surgery. Second, FBI agent William Culver testified that

a cooperating customer of the conspiracy, Javier Malendez, told Culver that

Tauil-Hernandez transported a kilogram of cocaine from New York City to

Omaha in September 1993. Attributing either of these transactions to

Tauil-Hernandez would push her over the five-kilogram sentencing threshold.

When drug quantity is at issue, the government must establish at

sentencing, by a preponderance of the evidence, the type and quantity of

drugs attributable to each conspirator. See United States v. Maxwell, 25

F.3d 1389, 1397 (8th Cir.), cert. denied, 115 S. Ct. 610 (1994). We review

the district court's drug quantity findings for clear error, reversing

"only if the entire record definitely and firmly convinces us that a

mistake has been made." United States v. Sales, 25 F.3d 709, 711 (8th Cir.

1994). After careful review of the sentencing record, we conclude that

Tauil-Hernandez cannot meet this demanding standard of review. 
 Though Tauil-Hernandez received a mandatory minimum sentence, 2

this Guidelines issue was potentially relevant because possession

of a firearm precludes the sentencing court from ignoring the

statutory minimum penalty under 18 U.S.C. § 3553(f).

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A conspirator is responsible for all reasonably foreseeable acts of

others taken in furtherance of the conspiracy. See U.S.S.G.

§ 1B1.3(a)(1)(B); United States v. Flores, 73 F.3d 826, 833 (8th Cir.),

cert. denied, 1996 WL 282539 (June 24, 1996) (No. 95-9092). TauilHernandez admitted making numerous trips to transport cocaine to Omaha.

She could clearly foresee that Rosario would recruit another courier during

her hospitalization to keep the Omaha conspirators supplied with cocaine.

Indeed, there was testimony she knew of the San Diego trip and saw the 500

grams transported to Omaha. Thus, there was no clear error attributing

these additional 500 grams to Tauil-Hernandez, and we need not consider the

second disputed transaction.

In these circumstances, the district court's ultimate drug quantity

finding was not clearly erroneous. The evidence at the sentencing hearing,

viewed favorably to Tauil-Hernandez, would have supported a drug quantity

finding of less than five kilograms. But it is not our task to reweigh the

evidence unless we are firmly convinced that a mistake has been made.

Though her principal role in the conspiracy was that of a courier, TauilHernandez apparently persuaded more than one New York drug dealer to

distribute cocaine in Omaha, and she transported large quantities of that

drug over a long period of time. As the district court recognized in

sentencing her to the statutory minimum prison term, the five kilogram

quantity finding is harsh but clearly deserved.

B. Possession of a Firearm. Tauil-Hernandez next argues that the

district court erred in assessing a two-level enhancement for possession

of a firearm. See U.S.S.G. § 2D1.1(b)(1). This enhancement is

2

appropriate if the government proves that "the weapon was used to further

the conspiracy and the possession was
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reasonably foreseeable to" Tauil-Hernandez. We review those fact

determinations for clear error. See United States v. Garrido, 995 F.2d

808, 815 (8th Cir.), cert. denied, 114 S. Ct. 330 (1993).

Police found the handgun under a motel room mattress, near bundles

containing over $14,000 in cash. Tauil-Hernandez had rented the motel room

and was arrested returning to it. Rosario testified that it was the same

gun he kept under a mattress at the apartment he shared with TauilHernandez. She admitted that the conspirators distributed cocaine from

that apartment. She also knew that Rosario kept a gun in the apartment and

that conspirator Aguirre-Helming had brought the gun to the motel room. 

On this record, the district court's decision to impose a firearm

enhancement must be affirmed. The crucial inquiry is whether "it is not

clearly improbable that the weapon had a nexus with the criminal activity."

United States v. Richmond, 37 F.3d 418, 419 (8th Cir. 1994), cert. denied,

115 S. Ct. 1163 (1995). In a conspiracy case, a sufficient nexus is

established if "the weapon was found in the same location where drugs or

drug paraphernalia were stored, or where part of the conspiracy took

place." United States v. Payne, 81 F.3d 759, 763 (8th Cir. 1996). Even

crediting Tauil-Hernandez's testimony that she was afraid of the gun and

never used it, she knew that other conspirators possessed the gun in

furtherance of the conspiracy. 

C. Downward Departure. Finally, Tauil-Hernandez argues that the

district court should have granted her a downward departure under U.S.S.G.

§ 5K2.0 and 18 U.S.C. § 3553(b) because her sentence is substantially

greater than the sentences of more culpable conspirators, and because she

cooperated in unrelated government narcotics investigations, though not

enough to earn a substantial assistance departure motion. At sentencing,

the district court recognized its authority to depart but declined to

exercise that discretion, explaining that it had taken these mitigating

factors
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into account in imposing the mandatory minimum sentence. That

discretionary decision is unreviewable on appeal. See United States v.

Jenkins, 78 F.3d 1283, 1290 (8th Cir. 1996).

II. Mordan.

A. Drug Quantity. Mordan came to Omaha from New York in late 1993

and was recruited by Alfredo Diaz and Aguirre-Helming into the conspiracy.

He made two trips to New York in February 1994, returning with four ounces

of cocaine and three bottles of a cutting agent. In March, he made another

trip to New York City, where he was arrested in a taxi cab with 500 grams

of cocaine. Before Mordan pleaded guilty, the district court suppressed

these 500 grams as illegally seized. On appeal, Mordan argues that the

court then erred in basing its drug quantity finding for sentencing

purposes on this suppressed half kilogram. Excluding this quantity would

reduce his base offense level from twenty-six to eighteen, see U.S.S.G.

§§ 2D1.1(c)(7) and (11), and trigger a reduction in his forty-six-month

prison sentence. 

Mordan first argues that the court abused its discretion in granting

the government a two-week continuance of the sentencing hearing. At the

initial hearing, FBI agent Culver testified to the amount of cocaine seized

in New York, relying upon a laboratory report prepared by the New York City

Police Laboratory. Mordan objected to use of this report as unreliable

hearsay, and the court sustained that objection. See United States v.

Marshall, 940 F.2d 382, 383 (8th Cir. 1991) (per curiam). However, the

court also continued the hearing for two weeks so that the government could

produce the author of the report. That chemist testified two weeks later

in support of the statements in the report. She was vigorously crossexamined by Mordan's attorney. 

The district court did not abuse its substantial discretion in

granting this continuance. See United States v. Kopelciw, 815 F.2d
 See United States v. McCrory, 930 F.2d 63, 68-69 (D.C. Cir. 3

1991), cert. denied, 502 U.S. 1037 (1992); United States v. Tejada,

956 F.2d 1256, 1263 (2d Cir.), cert. denied, 506 U.S. 841 (1992);

United States v. Torres, 926 F.2d 321, 325 (3d Cir. 1991); United

States v. Montoya-Ortiz, 7 F.3d 1171, 1181 (5th Cir. 1993); United

States v. Jenkins, 4 F.3d 1338, 1345 (6th Cir. 1993), cert. denied,

114 S. Ct. 1547 (1994); United States v. Kim, 25 F.3d 1426, 1436

(9th Cir.), cert. denied, 115 S. Ct. 607 (1994); United States v.

Lynch, 934 F.2d 1226, 1237 (11th Cir. 1991), cert denied, 502 U.S.

1037 (1992). 

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1235, 1238 (8th Cir. 1987) (standard of review). The government was not

unreasonable in initially believing it had enough other corroboration of

cocaine quantity to establish the lab report's reliability -- Alfredo Diaz

testified that he had sent Mordan to New York to purchase 500 grams of

cocaine. When the district court ruled otherwise, the resulting two-week

delay did not prejudice Mordan, who thoroughly cross-examined the chemist.

Mordan next argues that the cocaine illegally seized in New York

should not be admissible to prove drug quantity at sentencing. This is an

issue of first impression in this circuit. Congress has told us not to

apply exclusionary rules at sentencing. See 18 U.S.C. § 3661, repeated in

U.S.S.G. § 1B1.4. Most of our sister circuits have concluded that the

Fourth Amendment's exclusionary rule does not apply in federal sentencing

proceedings, though two separate opinions have urged the contrary rule.

3

See United States v. Jewel, 947 F.2d 224, 238-40 (7th Cir. 1991)

(Easterbrook, J., concurring); Kim, 25 F.3d at 1437 (Schroeder, J.,

dissenting).

The Supreme Court has declined various invitations to extend the

Fourth Amendment exclusionary rule beyond the criminal trial. The rule

does not apply to grand jury proceedings, see United States v. Calandra,

414 U.S. 338 (1974), to INS deportation proceedings, see I.N.S. v. LopezMendoza, 468 U.S. 1032 (1984), or to civil tax proceedings, see United

States v. Janis, 428 U.S. 433 (1976). When deciding whether to extend the

rule to proceedings other than criminal trials, the Court balances the

likelihood of
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deterring Constitutional violations against the cost of withholding

reliable information from the proceedings in question. See Illinois v.

Krull, 480 U.S. 340, 347 (1987).

Extending the exclusionary rule to sentencing would have a

detrimental effect on the traditional judicial prerogative of sentencing

an offender based upon all the relevant and reliable information that is

available. See United States v. Lynch, 934 F.2d 1226, 1236 (11th Cir.

1991), cert denied, 502 U.S. 1037 (1992). Turning to the deterrence side

of the balance, there is some force to the contention that, under the

Sentencing Guidelines' relevant conduct regime, the exclusionary rule is

needed at sentencing to deter police who have lawfully obtained enough

evidence to convict from illegally seizing additional contraband in order

to greatly increase the offender's sentence. See McCrory, 930 F.2d at 70-

72 (Silberman, J., concurring), and the previously cited separate opinions

of Judges Schroeder and Easterbrook. However, we doubt that there are many

police officers who would risk the fruits of prior legitimate law

enforcement activities in so cynical a fashion. See Lynch, 934 F.2d at

1236 & n.14. More significantly, whatever increased deterrence might

result from this extension of the exclusionary rule does not, in our view,

outweigh the cost of truncating the sentencing judge's traditionally broad

inquiry into all that may be relevant and reliable in determining the

convicted defendant's appropriate punishment. See Tejada, 956 F.2d at

1263; Torres, 926 F.2d at 325. We therefore agree with the other circuits

that a sentencing court may properly consider suppressed evidence in

determining a Guidelines sentence.

B. Role in the Offense. Mordan also argues that the district court

erred in finding that he was a "minor" participant in the conspiracy,

entitled to a two-level reduction, rather than a "minimal" participant,

entitled to a three- or four-level reduction. See U.S.S.G. §§ 3B1.2(a) and

(b). Mordan claims that
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he was the least culpable member of the conspiracy because he joined later

than the others and only participated as a courier. 

"[T]he downward adjustment for a minimal participant will be used

infrequently," for example, "where an individual was recruited as a courier

for a single smuggling transaction involving a small amount of drugs."

U.S.S.G. § 3B1.2, comment. (n.2). The district court found that Mordan

made several trips to New York to purchase more than a small amount of

cocaine for his more culpable conspirators. The court's findings as to

Mordan's role in the offense are not clearly erroneous, and thus the twolevel reduction must be affirmed. See United States v. Fregoso, 60 F.3d

1314, 1329 (8th Cir. 1995) (standard of review).

The judgments of the district court are affirmed.

A true copy.

Attest:

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