USA v. Rolando Godoy

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 24, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-10271
Non-Argument Calendar
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D.C. Docket No. 4:07-cr-00030-RLV-WEJ-2
UNITED STATES OF AMERICA,
llllllll lllllllllllllPlaintiff-Appellee,
versus
ROLANDO GODOY,
lllllllllllllllllllllDefendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 24, 2011)
Before CARNES, WILSON, and BLACK, Circuit Judges.
PER CURIAM:
Rolando Godoy appeals his 97-month sentence, which was imposed after he
pleaded guilty to one count of conspiracy to distribute at least 500 grams of

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methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Godoy
contends that the district court erred in its calculation of the quantity of drugs
attributable to him.
I.
Godoy pleaded guilty to conspiracy to distribute methamphetamine.
Because his conduct involved the sale of two different illegal substances—
methamphetamine and dimethylamphetamine—the quantity of drugs attributable
to him for his role in the conspiracy was converted to the marijuana equivalency of
those illegal drugs. See U.S.S.G. § 2D1.1(c) cmt. n.10. The presentence report
based the total drug quantity attributable to Godoy on four illegal drug
transactions in which Godoy had allegedly participated, and it listed the total
quantity as 919 kilograms of marijuana equivalency. Based on that total, which
fell between 700 and 1,000 kilograms, the presentence report set the base offense
level at 30. See U.S.S.G. § 2D1.1(c)(5) (providing a base offense level of 30 for
“[a]t least 700 KG but less than 1,000 KG of Marihuana”). Godoy raised several
objections to the presentence report including one that denied he had participated
in the four alleged drug transactions, and another asserting that the government
had not provided him with information about two of them.
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At his sentence hearing, Godoy renewed those objections. During the
sentence hearing, both sides made concessions and admissions that settled the
issues about all of the transactions except one. The government first conceded
that it was unable to prove by a preponderance of the evidence one of the alleged
transactions, which involved methamphetamine amounting to 170.1 kilograms of
marijuana equivalency. That concession left the total alleged drug quantity at
748.9 kilograms of marijuana equivalency, still above the minimum amount of 700
kilograms for a base offense level of 30. Godoy also withdrew his objections to
two of the transactions, one involving methamphetamine amounting to 538
kilograms of marijuana equivalency and another involving dimethylamphetamine
amounting to 2.9 kilograms of marijuana equivalency.
After that, the only remaining disputed transaction was one involving
methamphetamine amounting to 208 kilograms of marijuana equivalency. During
the hearing Godoy’s attorney admitted that the government had given him
information about that transaction and that he had since reviewed that information
with his client. Godoy did not, however, admit that he had participated in that
transaction or withdraw his objection to its inclusion in the presentence report.
About that transaction the presentence report stated:
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Agents identified an individual who was selling user amounts of
methamphetamine and made controlled purchases from him on March
21 and 22, 2007. Following this individual’s arrest on March 23, 2007,
he agreed to cooperate with authorities . . . . [The informant] advised he
obtained the methamphetamine sold to agents from Rolondo Godoy.
[The informant] stated the small quantity of methamphetamine seized
from his residence also came from Godoy. Subsequent analysis
determined there was . . . 10.4 grams of methamphetamine (actual) [or
208 kilograms of marijuana equivalency], which has been attributed to
Godoy.
In responding to Godoy’s objections about his participation in that
transaction, the government made a brief proffer, which essentially restated in less
detail the information alleged in the presentence report. The government said:
The agents actually executed a search warrant on the home of [the
confidential informant]. They found methamphetamine there. That
methamphetamine was seized; was tested; did show, was positive for the
presence of methamphetamine. And [the informant] stated that those
drugs had been supplied by Mr. Godoy. The drugs were purchased from
Mr. Godoy.
That proffer and the presentence report were the only support presented to the
district court regarding the disputed drug transaction. After receiving that proffer
and hearing arguments from both sides, the court stated without further
elaboration that it would “adopt the findings in the presentence report as modified
here” and that “[i]nformation has been furnished as to [the disputed drug
transaction].” The court made no further finding about Godoy’s participation in
the disputed drug transaction.
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Using the base offense level of 30 with a 3-level reduction for acceptance of
responsibility and a criminal history category of II, the court set Godoy’s advisory
guidelines range at 78 to 97 months and sentenced him to 97 months
imprisonment. Had the district court found instead that Godoy had not
participated in the disputed drug transaction, the marijuana equivalency of the
drugs attributable to him would have been 540.9 kilograms, which would have
reduced his base offense level from 30 to 28. See U.S.S.G. § 2D1.1(c)(6)
(providing a base offense level of 28 for “[a]t least 400KG but less than 700KG of
Marihuana”). The resulting guidelines range might have been 63 to 78 months
instead of 78 to 97 months.1
Godoy contends the district court erred by relying on unreliable and
unspecific evidence in calculating the quantity of drugs attributable to him.
II.
We review a determination of the quantity of drugs attributable to a
defendant only for clear error. United States v. Zapata, 139 F.3d 1355, 1357 (11th
Cir. 2005). “When a defendant challenges one of the factual bases of his sentence
It appears from the record that the 3-level reduction for acceptance of responsibility was1
recommended by the government in part because of its mistaken belief that Godoy had
withdrawn his objection denying his participation in the disputed drug transaction. It is unclear
whether the government would have recommended, or the district court would have granted, that
reduction if it had been aware that Godoy was denying participating in one or more of the drug
transactions.
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as set forth in the [presentence report], the Government has the burden of
establishing the disputed fact by a preponderance of the evidence.” Id. While the
sentencing guidelines allow a district court to “consider relevant information
without regard to its admissibility under the rules of evidence,” the information
must have “sufficient indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3(a). The necessity of requiring reliable evidence in support of the
government’s position is “particularly manifest in cases . . . where the quantity of
drugs attributed to a defendant can have a marked impact on the length of his
sentence.” United States v. Lawrence, 47 F.3d 1559, 1567 (11th Cir. 1995).
Perfunctory summaries of evidence that the government stands ready to present,
especially if there has been no trial, are generally not reliable evidence for this
purpose. See id. at 1568.
The district court clearly erred by concluding that the government had
established the quantity of drugs attributable to Godoy by a preponderance of the
evidence. The presentence report alleged only that an informant, after being
arrested for selling methamphetamine to undercover law enforcement officers, had
told the officers that he had gotten the drugs from Godoy. The government’s
proffer did nothing more than restate the allegations in the presentence report to
which Godoy had objected. The district court relied on that summary of the
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evidence. Even if that summary is considered in conjunction with the allegations
in the presentence report, it lacked the proper indicia of reliability for sentencing.
See Zapata, 139 F.3d at 1359; Lawrence, 47 F.3d at 1567–69.
The government did not present testimony or affidavits from the
confidential informant or even from the officers who had arrested the informant
and to whom he had allegedly made the statements. It did not proffer specific
evidence about the circumstances surrounding the informant’s arrest or about the
alleged drug transaction between the informant and Godoy. Nor did the
government present anything to show that there was a connection or relationship
between Godoy and the confidential informant before the informant was arrested.
The only evidence proffered by the government was the prosecutor’s conclusory
statement that the confidential informant had said that “those drugs had been
supplied by Mr. Godoy. The drugs were purchased from Mr. Godoy.” That is not
enough. See Lawrence, 47 F.3d at 1567–69 (finding the unsupported allegations
in the presentence report, “the prosecutor’s brief proffers of evidence,” and the
defendant’s testimony at their plea hearings insufficient to support the district
court’s factual findings).
Additionally, the inclusion of that quantity of drugs in this case may have
increased Godoy’s advisory guidelines range. See Lawrence, 47 F.3d at 1567.
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Without inclusion of that transaction, Godoy’s base offense level would have been
28 instead of 30, which may have led to lower guidelines range and could have
affected the district court’s calculus for the sentence it imposed. See supra at 5 &
n.1. For these reasons, we vacate Godoy’s sentence and remand for resentencing.
In doing so, we leave open the possibility that the government can prove by a
preponderance of the evidence that the disputed methamphetamine transaction was
properly attributable to Godoy. We also leave open the possibility that the
reduction for acceptance of responsibility may be revisited on remand, although
we do not mean to imply any view about whether it should be.
VACATED AND REMANDED.
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