___________ No. 95-2808

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Maribel Tauil-Hernandez, * * Defendant - Appellant. *

___________ 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. *

___________ Submitted: February 13, 1996 Filed: July 3, 1996

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

___________ LOKEN, Circuit Judge.

The U nited States filed a multi-count indictment charging Maribe l Ta uil-Hernandez, Julio Mordan, Eladio Rosario, Alfredo Diaz, Oswald o Aguir re-Helming, Monica Anderson, and Maria Diaz with narcotics an d conspi racy violations. Each defendant pleaded guilty to conspiracy t o distr ibute cocaine in violation of 21 U.S.C. § 846, and the governmen t dropped the remaining charges. Tauil-

### The HONORABLE THOMAS M. SHANAHAN, United States Distric t 1 

### Judge for the District of Nebraska.
-2- Herna ndez and Mordan now appeal their sentences. Mordan raises a significant legal issue, whether the Fourth Amendment exclusionary rul e applies to federal sentencing proceedings. We affirm.

I. Tauil-Hernandez.

A. Drug Quantity. Tauil-Hernandez timely objected to the quantit y of cocaine attributed to her for sentencing purposes in her Presentenc e Invest igation Report. After an evidentiary hearing at which Rosario , Alf redo Diaz, and two agents testified for the government, the distric t court overruled this objection and attributed between five and fiftee n

1 kilograms to Tauil-Hernandez. That resulted in a sentence of 120 months in prison and five years of supervised release. Tauil-Hernandez argue s that this quantity finding is clearly erroneous because she was onl y 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 fr om thirty-two to thirty, see U.S.S.G. §§ 2D1.1(c)(4) and (5).
The evidence at the sentencing heari ng, viewed most favorably to the government, establish ed that Tauil-Hernandez met Rosario in New York City in the fall of 1992 and persuaded him to begin distributing cocaine i n Omaha. Between October 1992 and April 1993, Tauil-Hernandez made six trip s to New York City. On each occasion, she transported 450-500 grams o f cocaine purchased by Rosario to Omaha, where the conspirators distributed the cocaine from an apartment rented by Tauil-Hernandez.

On Apri l 4, 1993, police searched an Omaha motel room, seizing 3. 4 grams of cocaine, a large amount of cash, and a semi-automatic

### -3-

pistol. They arrested Tauil-Hernandez as she returned to the room. Thoug h 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 Marc h 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 o f cocaine should be attributed to her for sentencing purposes: the 2,95 0 grams she transported for Rosario, the 1700 to 1800 grams she transported for Alfredo Diaz, and the 4.4 grams seized in he r motel room and cosmetics case. However, that leaves the government 250 to 350 grams short of five kilogr ams. The government points to two additional transactions, whic h Tauil-Hernandez argues were not part of her role in the conspiracy. First , Rosario testified that 500 grams of cocaine were transported from San Dieg o to Omaha by another courier in February 1993, while Tauil-Hernandez wa s hospitalized for surgery. Second, FBI agent Wil liam Culver testified that
a cooperating customer of the conspiracy, Javier Malendez, told Culver tha t Tau il-Hernandez transported a kilogram of cocaine from New York City t o Omaha i n September 1993. Attributing either of these transactions t o Tauil-Hernandez would push her over the five-kilogram sentencing threshold

.

When drug quantity is at issue, the government must establish a t 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 revie w the di strict court's drug quantity findings for clear error, reversin g "onl y 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 tha t Tauil-Hernandez cannot meet this demanding standard of review.

### Though Tauil-Hernandez received a mandato ry minimum sentence, 2 

### this Guidelines issue was potentially relevant because possession of a firearm precludes the sentencing court from ignoring th e statutory minimum penalty under 18 U.S.C. § 3553(f).
-4- A conspir ator 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. den ied , 1996 WL 282539 (June 24, 1996) (No. 95-9092). Tauil

Hernan dez admitted making numerous trips to transport cocaine to Omaha

. She could clearly foresee that Rosario would recruit another courier durin g her hospitalization t o 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 attributin g these additional 500 grams to Tauil-Hernandez, and we need not consider th e 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 T auil-Hernandez, would have supported a drug quantity finding of less than five kilograms. But it is not our task to reweigh th e evidence u nless we are firmly convinced that a mistake has been made

. Though her principal role in the conspiracy was that of a courier, TauilHern andez apparently persuaded more than one New York drug dealer t o distribute cocaine in Omaha, and she transported large quantities of that drug over a long period of time. As the district court recognized i n sentencing her to the statutory minimum prison term, the five kilogra m 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 i s 2 appropriate if the go vernment proves that "the weapon was used to further the conspiracy and the possession was

### -5-

rea sonably foreseeable to" Tauil-Hernandez. We review those fac t determinations for clear error. See United States v. Garrido , 995 F.2 d 808, 815 (8th Cir.), cert. denied , 114 S. Ct. 330 (1993).

Police f ound the handgun under a motel room mattress, near bundle s containing over $14,000 in cash. Tauil-Hernandez had rented the motel roo m and was arrested retu rning to it. Rosario testified that it was the same gun he ke pt under a mattress at the apartment he shared with Tauil

Hernan dez. She admitted that the conspirators distributed cocaine fro m that apartment. She also knew that Rosario kept a gun in the apartment an d that conspirator Aguirre-Helming had brought the gun to the motel room.

On th is record, the district court's decision to impose a firear m 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 i s established if "the weapon was found in the same location where drugs or drug paraphernalia were stored, or where part of the conspiracy too k 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
neve r used it, she knew that other conspirators possessed the gun i n furtherance of the conspiracy.

C. Downward Departure. Finally, Tauil-Hernandez argues that the district court should have granted her a downwar d departure under U.S.S.G. § 5K2.0 an d 18 U.S.C. § 3553(b) because her sentence is substantiall y greater than the sent ences of more culpable conspirators, and because she coope rated in unrelated government narcotics investigations, though no t enough to earn a subs tantial assistance departure motion. At sentencing, the dis trict court recognized its authority to depart but declined t o exerci se that discretion, explaining that it had taken these mitigatin g factors

### -6-

into a ccount in imposing the mandatory minimum sentence. Tha t dis cretionary decision is unreviewable on appeal. See United States v

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

II. Mordan.

A. Dr ug Quantity. Mordan came to Omaha from New York in late 199 3 and was recruited by Alfredo Diaz and Aguirre-He lming 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 anothe r 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 th e court then erred in basing its drug quantity finding for sentencin g purposes on this supp ressed half kilogram. Excluding this quantity would red uce 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-mont h prison sentence.
Mordan first argues that the court a bused 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 seize d in New York, relying upon a laboratory report prepared by the New York Cit y Police Laboratory. Mordan objected to use of this report as unreliabl e hears ay, and the court sustained that objection. See United States v

. Marshall , 940 F.2d 382, 383 (8th Cir. 1991) (per curiam). However, th e court also continued the hearing for two weeks so that the government coul d produce the author of the report. That chemist testified two weeks later in support of the statements in the report. She was vigorously cross

examined by Mordan's attorney.

The district court did not abuse its substantial discretion i n 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.3 d 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, 143 6 (9th Cir.), cert. denied , 115 S. Ct. 607 (1994); United States v. Lynch , 934 F.2d 1226, 1237 (11 th Cir. 1991), cert denied , 502 U.S. 1037 (1992).
-7- 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 r eliability -- Alfredo Diaz testifie d that he had sent Mordan to New York to purchase 500 grams o f cocaine. When the di strict court ruled otherwise, the resulting two-week delay did not prejudice Mordan, who thoroughly c ross-examined the chemist.

Mo rdan next argues that the cocaine illegally seized in New Yor k should not be admissible to prove drug quantity at sentencing. This is an issue o f first impression in this circuit. Congress has told us not t o 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 th e Fourth Amendment's ex clusionary rule does not apply in federal sentencing proceedi ngs, though two separate opinions have urged the contrary rule

. 3 Se e United States v. Jewel , 947 F.2d 224, 238-40 (7th Cir. 1991 ) (Easte rbrook, J., concurring); Kim , 25 F.3d at 1437 (Schroeder, J. , dissenting).

The Supreme Court has declined various invitations to extend th e Fou rth Amendment exclusionary rule beyond the criminal trial. The rul e 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. LopezMendo za , 468 U.S. 1032 (1984), or to civil tax proceedings, see Unite d States v. Janis , 428 U.S. 433 (1976). When deci ding whether to extend the rule to proceedings other than criminal trials, the Court balances th e likelihood of

### -8-

deterring Constitutional violations against the cost of withholdin g rel iable information from the proceedings in question. See Illinois v

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

Ex tending 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 , 5 02 U.S. 1037 (1992). Turning to the deterrence side of the balance, there is some force to the contention that, under th e Sentencing Guidelines' relevant conduct regime, the exclusionary rule is needed at sentencing to deter police who have lawfully obtained enoug h evidence to convict f rom illegally seizing additional contraband in order to greatly increase the offender's sentence. Se e McCrory , 930 F.2d at 70- 72 (Silberman, J., concurring), and the previous ly cited separate opinions of Judges Schroeder and Easterbrook. However, we doubt that there are man y polic e officers who would risk the fruits of prior legitimate la w enforceme nt activities in so cynical a fashion. See Lynch , 934 F.2d a t 1236 & n.14. More significantly, whatever increased deterrence migh t result from this extension of the exclusionary r ule does not, in our view, outweigh the cost of truncating the sentencing j udge's traditionally broad inquiry in to all that may be relevant and reliable in determining th e convic ted defendant's appropriate punishment. See Tejada , 956 F.2d a t 1263; Torres , 926 F.2d at 325. We therefore agr ee with the other circuits that a sentencing court may properly consider suppressed evidence i n determining a Guidelines sentence.

B. Role i n the Offense. Mordan also argues that the district court erred in f inding that he was a "minor" participant in the conspiracy , entitl ed 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) an d (b). Mordan claims that

### -9-

he was the least culpable member of the conspira cy because he joined later than the others and only participated as a courier.

"[T]he downward adjustment for a minimal participant will be use d infrequently," for example, "where an individual was recruited as a courie r 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 Morda n made sev eral trips to New York to purchase more than a small amount o f cocaine for his more culpable conspirators. The court's findings as t o 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.