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2d 95
2 Fed.Sent.R. 112
A.
The indictment to which Sciarrino pleaded guilty charged him and coconspirators Nicholas John Dulak and Steven L. "Wally" Gladfelter with
conspiracy and possession with intent to distribute in excess of 1,000 kilograms
of marijuana. Sciarrino challenged the amount involved, and an evidentiary
hearing was held on that issue. The government presented evidence depicting
Sciarrino as a mid-level distributor who obtained marijuana from a government
witness, Billie Skinner, and passed it on to Dulak, Gladfelter, and unindicted
co-conspirators Timothy O'Donnell and Robert Lee. All of these persons
testified about amounts of marijuana but it is the testimony of Dulak with which
Sciarrino is concerned.
Testifying for the government pursuant to a plea bargain, Dulak stated that he
received no more than 800 pounds in all from Sciarrino. This was inconsistent
with Lee's testimony that Lee alone received 800 pounds from Dulak, and
Dulak's testimony that Lee was not his only customer. The government then
brought out Dulak's prior inconsistent statement to Special Agent Keith Miller
of the Drug Enforcement Administration that Dulak had purchased from
Sciarrino 1,400 pounds of marijuana.
Sciarrino urges that the Sentencing Reform Act of 1984, as implemented by the
Sciarrino can take no comfort in the Sentencing Reform Act. That statute
merely renumbered former section 3577 of Title 18, carrying forward the
identical language:
Pub.L. No. 98-473, Title II, c. II, Sec. 212(a)(1), 98 Stat.1987 (Oct. 12, 1984),
18 U.S.C. Sec. 3661. Under the pre-1987 sentencing statute the use of hearsay
in the sentencing stage of a criminal proceeding was permissible. Roberts v.
United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622
(1980); United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582
(1978); United States v. Baylin, 696 F.2d 1030, 1039 (3d Cir.1982). The state
courts may do likewise without violating due process. Williams v. Oklahoma,
358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. New York, 337
U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).
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12
The defendant was confronted with Dulak's prior inconsistent statement and
was free to offer evidence disputing it. The statement had sufficient indicia of
reliability for use for impeachment purposes even at trial. Fed.R.Evid. 613(b).
There were other corroborating circumstances. Thus while we can envision
circumstances in which evidence relied on at sentencing is so totally
untrustworthy as to violate the Townsend v. Burke due process rule, this case
clearly does not present such circumstances.
13
Thus we reject Sciarrino's contention that the district courts may never rely in a
sentencing hearing on hearsay evidence for the truth of the matter asserted.
B.
14
Alternatively Sciarrino contends that the district court's 2,094 pound finding is
not supported by the evidence. In making that finding the district court applied
a beyond-a-reasonable-doubt standard of proof, rejecting the government's
contention that a preponderance-of-the-evidence standard should apply. See
Jones v. Thieret, 846 F.2d 457, 461 (7th Cir.1988).
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16
Sciarrino also contends that the district court counted the 330 pounds twice.
We need not explore the details of the calculation, however, because the 330
pound difference would not change the applicable offense level. Under
Sentencing Guidelines Sec. 2D1.1(a)(3), trafficking from 700 to 999 kilograms
of marijuana results in an offense level of 30. A reduction of 330 pounds would
produce a total of 1,764 pounds, or 800.2 kilograms; well within the same
category.
C.
17
Hon. Alfred M. Wolin, United States District Judge for the District of New
Hon. Alfred M. Wolin, United States District Judge for the District of New
Jersey, sitting by designation