United States of America v. NICHOLAS C. GRASS a/k/a NICKY GRASSO Nicholas Grass

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-4389
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UNITED STATES OF AMERICA
v.
NICHOLAS C. GRASS
a/k/a NICKY GRASSO
Nicholas Grass,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 00-cr-00120-01)
District Judge: Hon. Eduardo C. Robreno
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Submitted pursuant to Third Circuit L.A.R. 34.1(a)
June 14, 2007
Before: McKEE, STAPLETON, and NYGAARD, Circuit Judges.
(Opinion Filed: July 30, 2007)
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OPINION
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1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
MCKEE, Circuit Judge:
Nicholas Grass appeals the sentence that was imposed following his conviction for
offenses arising from his involvement in a conspiracy to distribute methamphetamine.
The only issue raised on appeal is whether the sentencing court erred in determining the
quantity of that controlled substance for purposes of sentencing. For the reasons that
follow, we will affirm.1
I.
Inasmuch as we write primarily for the parties, we need not set forth the factual or
procedural background except insofar as may be helpful to our brief discussion. Grass
argues that the evidence of drug quantity was too tenuous to allow the court to hold him
responsible for ten pounds of methamphetamine.
In his initial brief, Grass argued that the Government must establish facts relevant
only to sentencing by proof that is “at least ‘clear and convincing,’ if not by proof beyond
a reasonable doubt.” Appellant’s Br. at 19. However, he made that argument before our
decision in United States v. Grier, 475 F.3d 556 (3d. Cir. 2007)(en banc). In the Reply
Brief filed after Grier, Grass concedes that we have “authoritatively determined that a
preponderance of reliable evidence [is] the applicable burden of proof in the district
court.” Reply Br. at 1. He nevertheless maintains that the contradictions and
inconsistencies on this record cannot satisfy even that standard.

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2 Grass concedes that the sentencing court could consider evidence from the initial trial as
well as the retrial that he won on appeal. See Appellant’s Br. at 7 (The ‘facts’ that were before
3
We review a sentencing court’s findings of drug quantity for purposes of
sentencing for clear error. United States v. Sau Hung Yeung, 241 F.3d 321, 322 (3d Cir.
2001). If a sentence rests upon an unsupported or clearly erroneous finding of fact, it is
deemed “unreasonable” and cannot stand. United States v. Cooper, 437 F.3d 324, 330 (3d
Cir. 2006).
The Sentencing Guidelines Commentary Provides that where “there is no drug
seizure or the amount seized does not reflect the scale of the offense, the sentencing judge
shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1,
Application Note 12. Consequently, the District Court must “determine the amount and
kind of controlled substance for which [the] defendant should be held accountable and
then . . . impose a sentence that varies depending on the amount and kind.” Edwards v.
United States, 523 U.S. 511, 513-14, (1998). The evidence, “which need not be
admissible at trial, must possess ‘sufficient indicia of reliability to support its probable
accuracy.’” United States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 2002) (citing United States
v. Miele, 989 F.2d 659, 663 (3d Cir. 1993). “[T]he sentencing court must carefully
scrutinize the government’s proof to ensure that its estimates are supported by a
preponderance of the evidence.” United States v. Paulino, 996 F.2d at 1545.
Here, the District Court listened to the evidence that was presented at Grass’s
original trial and retrial as well as the sentencing hearing.2 The District Court concluded

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the sentencing court are found in the record of two trials, . . .”.).
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that Grass was responsible for a total of ten pounds of methamphetamine based upon
testimony that he received two deliveries of five pounds each on two separate occasions.
That testimony was corroborated by taped conversations involving coconspirators. For
example, during the August 11th conversation, McKee told Haefele that Nick was “sitting
on money.” 2App at 385. At trial, McKee explained that this referred to a payment of
$50,000 that Grass still owed for the second five-pound distribution of “meth,” that Grass
had received on credit. Although Grass argues that that testimony is less than credible and
that it is inconsistent with the “grand total,” Appellant’s Br. at 12, that the cooperating
witnesses claimed to have delivered, we believe that the quality and quantity of the
evidence before the District Court is sufficient to survive review for clear error.
Although (as defense counsel meticulously elaborates in his brief) the record is
not without conflict and contradiction, the District Court’s resolution of those conflicts
and contradictions is not clearly erroneous. Rather, the District Court examined the
government’s proof “to ensure that its estimates are supported by a preponderance of the
evidence.” United States v. Boone, 279 163, 184 (3d Cir. 2002). See 2App at 732a. Grass
argues that the District Court’s implicit rejection of all “of [his] arguments why the ten-
pound determination was unreliable[]” cannot stand absent more explanation than the
District Court provided. Appellant’s Br. at 7. The District Court simply explained “that
the conflict in the testimony, to the extent that there is a conflict, is not sufficient to bring

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the proof below the level of a preponderance of the evidence.” 2App. at 732a.
Under U.S.S.G. § 1B1.3(a)(1)(A), a defendant’s guideline range is determined on
the basis of “all acts and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant.” A defendant is accountable for
all quantities of a controlled substance that he is directly involved with. In the case of
jointly undertaken activity, the defendant is responsible for the quantity of drugs that are
reasonably foreseeable and within the scope of the jointly undertaken criminal activity.
U.S.S.G. § 1B1.3, commentary, application note (2)(ii).
The District Court considered all of the evidence that was presented as well as the
competing arguments of defense counsel and the Government and imposed a sentence
based upon the court’s conclusion that the preponderance of the evidence established that
Grass received two five pound deliveries of methamphetamine on two different
occasions. That finding was based upon the court’s resolution of the conflicts and
ambiguities in the record, and its conclusion is supported by the record. Accordingly, we
can not conclude that the District Court’s conclusion that Grass was responsible for ten
pounds of methamphetamine was clearly erroneous.
II.
For the reasons set forth above, we will affirm the judgment of sentence.

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