UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-9043

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DOUGLAS CRAIG GOLDEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(March 17, 1994)

Before GOLDBERG, DAVIS and DeMOSS, Circuit Judges

DeMOSS, Circuit Judge:

Appellant Douglas Golden ("Golden") was involved in an

extensive marijuana distribution conspiracy that stretched from

Texas to Tennessee, Indiana, and Michigan. The conspiracy was

headed by Golden's brother, Donald. Golden was ultimately arrested

and charged for his role in the enterprise.

Golden pleaded guilty to conspiracy to possess with the intent

to distribute marijuana, in violation of 21 U.S.C. § 846. Golden's

offense level was calculated to be 32, based on an amount of

marijuana over 1,000 kilograms. U.S.S.G. § 2D1.1(3). Golden was

given a criminal history category of 3, thus making his sentence
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range 151 to 188 months. U.S.S.G., ch. 5, part A. The court

sentenced Golden to 170 months in prison. Golden appeals his

sentence, raising two issues. 

The Court's Denial of an Offense Level Reduction

Golden first argues that the district court erred in denying

him a reduction in offense level based on his acceptance of

responsibility. The district court heard evidence from Officer

Niketta Pratt, who testified that after Golden had pleaded guilty

and was out on bond awaiting sentencing, Golden arranged a meeting

between a prospective buyer and seller of marijuana in Michigan.

Golden was subsequently arrested in Michigan for possession of 20

pounds of marijuana. On the strength of this evidence, the

district court denied Golden an offense level reduction. 

Golden points out that Pratt had no personal knowledge of his

alleged involvement in the Michigan transaction and that her

knowledge of the transaction was based solely on information

received by a confidential informant. While recognizing that the

district court may properly rely on hearsay evidence when making

sentencing determinations, United States v. Billingsley, 978 F.2d

861, 866 (5th Cir. 1992), Golden nevertheless argues that it was

error for the court to rely on hearsay evidence presented by "an

interested adverse witness . . . [without any] independent

corroboration of her testimony."

A district court may rely on uncorroborated hearsay testimony

in making factual findings as long as the hearsay evidence carries

sufficient indica of reliability. U.S. v. Cuellar-Flores, 891 F.2d
 

1"[I]n the case of a jointly undertaken criminal activity (.

. . whether or not charged as a conspiracy), all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken activity" are considered by the district court

in sentencing the defendant. U.S.S.G. § 1B1.3(a)(1)(B).

3

92, 93 (5th Cir. 1989). This court has previously concluded that

information provided by an "interested adverse witness" was

sufficiently reliable. See U.S. v. Manthei, 913 F.2d 1130, 1138

(5th Cir. 1990); Cuellar-Flores, 891 F.2d at 93. We conclude that

Officer Pratt's testimony carried sufficient indicia of reliability

to support the district court's denial of Golden's requested

reduction. Golden's first point of error is denied.

The Court's Foreseeability Finding

Golden's Presentence Investigation Report ("PSR") alleged that

Golden was responsible for the total amount of marijuana

distributed by the conspiracy: approximately 6,105 pounds (2,769.23

kilograms). Golden objected to this amount, arguing that he had

only limited involvement with his brother's organization and that

during those periods when he was involved, he was accountable for

a substantially lesser amount of marijuana. The probation

department filed an addendum to Golden's PSR, alleging that the

6,105 pounds of marijuana was reasonably foreseeable to Golden and

thus, chargeable to him under U.S.S.G. § 1B1.3.1 Golden again

objected, arguing that he did not reasonably foresee the full

extent of his brother's marijuana dealings.

On November 20, 1992, the district court held an evidentiary

hearing to address Golden's objections. Officer Pratt testified at

the hearing and provided details concerning the scope of the
 

2As a "pick up" man, Golden was responsible for receiving

loads of marijuana that were transported from the Texas-Mexico

border to the Dallas area on the back of semi-trailers. Golden

received 15 such loads at approximately 200 pounds each. As a

warehouser, Golden warehoused as much as 5000 pounds of marijuana

at his residences over a one month period. As a "load driver,"

Golden drove three to five loads of marijuana from the Dallas area

to Indiana and Michigan, each load weighing between 75 and 100

pounds. No details were provided as to his role as a seller.

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conspiracy in general, as well as Golden's extensive and

significant participation therein. Officer Pratt testified that

the total amount of marijuana involved in the entire conspiracy was

approximately 6,105 pounds, or 2,796 kilograms. She testified that

Golden played a "multifaceted" role in the conspiracy as a "pick

up" man, a "load driver," a warehouser, and a seller.2 She

testified that Golden was actively involved throughout the entire

period of the conspiracy, i.e., from 1987 to January 1992, with

some periods being more active than others. Finally, she testified

that during those periods in which he was more active, Golden

"would have been aware, or familiar or could have foreseen that

other marijuana was being sold and transported and stored

throughout this conspiracy." (Trans. of Sent. Hearing, p. 31,

emphasis added). At the conclusion of the hearing, the district

court overruled Golden's objection, specifically stating that it

"credit[ed] the testimony of Agent Pratt."

While no longer challenging the factual basis for his

sentence, Golden contends that the district court violated Federal

Rule of Criminal Procedure 32(c)(3)(D)(i) by failing to articulate

a specific finding that the amount of marijuana alleged in his PSR
 

3Rule 32 provides in relevant part: "If the comments of the

defendant . . . allege any factual inaccuracy in the presentence

investigation report . . ., the court shall, as to each matter

controverted, make (i) a finding as to the allegation." Fed. R.

Crim. P. 32(c)(3)(D).

Golden does not challenge that he was involved in "jointly

undertaken criminal activity" or that the conspiracy's total

distribution of marijuana was "reasonably foreseeable" to him. See

U.S.S.G. §1B1.3(a)(1)(B). Rather, his only complaint is that the

district court failed to comply with Rule 32(c)(3)(D).

wjl\opin\92-9043.opn

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was reasonably foreseeable.3 We disagree. The district court

specifically "credit[ed]" the testimony of Officer Pratt. We hold

that by so doing, the court adopted Pratt's conclusion regarding

Golden's ability to foresee the transportation, storage and sale of

marijuana of the entire conspiracy. We hold further that the

court's adoption of this conclusion is tantamount to it finding

that Golden could reasonably foresee that 6,105 pounds of marijuana

would be distributed by the conspiracy. See United States v.

Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992) (holding that court's

adoption of facts set forth in PSR satisfied Rule 32(c)(3)(D)).

Moreover, we hold that the court's specific rejection of Golden's

objection to amount of marijuana charged in the PSR satisfies Rule

32. United States v. Sparks, 2 F.3d 574, 588 (5th Cir. 1993) ("[b]y

rejecting [defendant's] allegation that the quantity of drugs for

which the PSR held him responsible was not reasonably foreseeable

to him, the district court found that this quantity was reasonably

foreseeable to [defendant]"), cert. denied, 114 S. Ct. 899 (1994).

Golden's second point of error is denied, and we therefore

AFFIRM his sentence.