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United States v. DeSivo

January 9, 2007


The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge

(Judge McClure)



On August 25, 2005, a jury in the Middle District of Pennsylvania found defendant Christopher P. DeSivo ("DeSivo") guilty of four counts related to a conspiracy to manufacture and distribute methamphetamine, possession of a firearm, witness tampering, and obstruction of justice. On October 20, 2005, the United States Probation Office ("probation office") issued DeSivo's original presentence report, which was later updated on February 28, 2006.

The probation office used the 2005 United States Sentencing Commission Guidelines Manual to determine defendant's total offense level.*fn1 Relying on the trial testimony of several witnesses, the probation office concluded that at least 1.5 kilograms but less than 5 kilograms of methamphetamine was involved in defendant's methamphetamine conspiracy. Pursuant to U.S.S.G. § 2D1.1(c)(3), this amount resulted in a base offense level of 34. The probation office added eight levels to this amount - two levels for Desivo's possession of a 9mm assault rifle in connection with his drug distribution activities, see U.S.S.G. § 2D1.1(b)(1); four levels for Desivo's role as leader of criminal activity involving five or more persons, see U.S.S.G. § 3B1.1(a); and two levels for DeSivo's obstruction of justice, see U.S.S.G. § 3C1.1. After determining DeSivo was not entitled to any offense level reductions, the probation office concluded that DeSivo's total offense level was 42.

The probation office then determined DeSivo's criminal history category score, which, based on his extensive criminal history, resulted in a base score of sixteen. The probation office then added two points because the instant offense occurred while the defendant was on parole, see U.S.S.G. § 4A1.1(d); and added one point because the defendant committed the offense less than two years after being released from imprisonment for a prior conviction, see U.S.S.G. § 4A1.1(e). The net result was nineteen criminal history points, which meant the defendant's criminal history category was VI. With a total offense level of 42 and a criminal history category of VI, the presentence report determined DeSivo's sentencing guideline imprisonment range to be 360 months to life.

Not surprisingly, DeSivo has filed numerous objections challenging the basis for this imprisonment range. On November 2, 2005, DeSivo filed, pro se, eleven pages of objections, followed by fifteen pages of supplemental objections filed, again pro se, on January 30, 2006. The probation office filed an addendum responding to these objections. The court then scheduled a hearing and a briefing schedule for arguments regarding DeSivo's objections. After granting DeSivo's numerous requests to delay the briefing and hearing, Desivo and the government filed their respective sentencing memoranda, and the court heard arguments on DeSivo's objections on December 6, 2006. During the December 6th hearing, the parties were given an opportunity to present argument and any evidence supporting those arguments. Sentencing has been postponed pending the court's ruling on defendant's objections.


I. Standard for Sentencing

The Supreme Court's ruling in United States v. Booker, 543 U.S. 220 (2005) made the United States Sentencing Guidelines advisory. Post-Booker, the Third Circuit has directed the district courts to follow a three part process when applying these advisory guidelines:

(1) Courts must calculate defendant's Guidelines sentence in the same manner as they would have before Booker.

(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force.

(3) Finally, they are to exercise their discretion by considering the relevant 28 U.S.C. § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.

United States v. Jackson, 467 F.3d 834, 837 (3d Cir. 2006) (quotation marks, brackets, and citations omitted) (quoting United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

In his pro se objections, DeSivo originally objected not only to the Guideline calculations, but also made request for specific departures. See (DeSivo's Obj., Rec. Doc. 196, ¶ 29). During the December 6th hearing, however, defense counsel and the government agreed that those departure requests were not really departure requests, but rather arguments that were relevant to the factors enunciated in 28 U.S.C. § 3553(a). See Obj. Hr'g Tr. 5-, 95-6, December 6, 2006. For this reason, we deal only in this memorandum with step one of the sentencing process, and will consider the objections DeSivo makes with respect to the calculations rendered in the presentence report. The arguments presented in DeSivo's pro se downward departure requests are rejected in their capacity as departure requests. Those arguments, however, will be considered at a future sentencing hearing in so far as they pertain to the factors in 28 U.S.C. § 3553(a).

II. Sentencing Guideline Calculation

DeSivo makes the following four main arguments in challenging the calculations rendered in the presentence report: (1) the presentence report impermissibly inflated the amount of methamphetamine attributable to DeSivo, (2) the presentence report incorrectly attributed a leadership role to DeSivo in the commission of the methamphetamine conspiracy, (3) the presentence report incorrectly applied an enhancement for his weapon possession conviction and obstruction of justice conviction, and (4) the presentence report miscalculated his criminal history score.*fn2 We will discuss each argument in turn, and make an independent determination as to whether the calculations made in the presentence report are supported by the evidence.

Before doing so, we note that we are required to apply the preponderance of the evidence standard. See U.S. v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). In his sentencing memorandum, DeSivo argues that a higher standard should apply. This argument is clearly misplaced, as the Third Circuit has as recently as November 2006 reiterated twice that when finding facts to determine the sentencing range under the Sentencing Guidelines, the district courts need only apply the preponderance of evidence standard. See United States v. Wilson, 2006 U.S. App. LEXIS 27179 at *6 (3d Cir. November 1, 2006) (unpublished); U.S. v. Fowers, 2006 U.S. App. LEXIS 27374, at *5 (3d Cir. November 3, 2006) (unpublished).*fn3

1. Calculation of Methamphetamine Amount

In justifying the amounts of methamphetamine attributable to DeSivo, the government and the probation office rely exclusively on the trial testimony of several witnesses. As a result, the court must make credibility determinations regarding the testimony of these witnesses to ensure that the evidence proffered possesses "sufficient indicia of reliability to support its probable accuracy."

U.S.S.G. § 6A1.3; United States v. Gibbs, 190 F.3d 188, 203 (3d. Cir. 1999). In addition to making the typical credibility determinations necessary to assess the believability of a witness, the court must also consider any bias or interest a witness may have regarding his or her testimony. 23 C.J.S. Criminal Law § 1490 (2006). However, a "sentencing court may credit testimony that is 'totally uncorroborated and comes from an admitted liar, convicted felon, or large scale drug-dealing, paid informant.'" United States v. White, 360 F.3d 718, 720 (7th Cir. 2004) (internal citations omitted).

A court is also permitted to estimate the amount of drugs involved in a particular operation. Gibbs, 190 F.3d at 203. Because doing so results in an approximation, however, the court should "err on the side of caution when choosing between two equally plausible estimates." United States v. August, 86 F.3d 151, 154 (9th Cir. 1996).

The court will consider the testimony of each relevant witness separately, determine the amount of methamphetamine attributable to DeSivo from each witness, and then add each amount together to determine his base offense level under the Sentencing Guidelines.

A. Freeman Smith

Freeman Smith was an experienced cook of methamphetamine. During his testimony, he described in detail how he manufactured the drug. See Trial Tr. vol. 2, 98:23-99:21, August 17, 2005. He testified that he learned from watching someone a couple times make methamphetamine, and then "picked it up from there." Id. at 99:22-24. Smith testified that he and DeSivo cooked methamphetamine between five and ten times at Smith's house and an additional three times at DeSivo's house. See id. at 107:24-108:10. During each of these cookouts, Smith stated that he and DeSivo would yield four ounces (113.4 grams) of methamphetamine by using a thousand pseudoephedrine pills.*fn4 See id. at 108:11-20. He also testified that he supplied DeSivo with methamphetamine between ten to twenty times, each time providing DeSivo with "an ounce to two or three or four ounces." Id. at 109:6-22. Based on this testimony, the government attributes between 30 to 60 ounces to DeSivo - 20 ounces for five instances in which Smith and DeSivo cooked four ounces, and ten ounces for the ten additional times Smith supplied DeSivo with methamphetamine.

DeSivo objects to this calculation, first arguing that it was impossible for Smith and DeSivo to produce four ounces of methamphetamine from a thousand pseudoephedrine pills. To support this position, DeSivo introduced into evidence a lab report from the Drug Enforcement Agency (DEA), which DeSivo apparently recovered from another criminal matter. Obj. Hr'g Tr. 9-10. Based on drug precursors seized from DeSivo's vehicle in that matter, the DEA conducted lab tests to determine the 100% theoretical yield of d-methamphetamine from 912 tablets of pseudoephedrine. See Obj. Hr'g Tr. exhibit D-1, p. 3. Using a hypothetical ratio of .920 of methamphetamine for each pure gram of pseudoephedrine, the report indicates that 49.90 grams of methamphetamine were possible from the 912 tablets of pseudoephedrine. DeSivo argues that because the DEA was only able to theoretically yield 49.90 grams from 912 pills, it is impossible for Smith and him to have actually produced more than twice that amount - 113.4 grams (i.e. 4 ounces) - using just 88 more pills.

We find Desivo's DEA lab report inconclusive. Fatal for DeSivo is that the report does not indicate whether the resulting "theoretical" methamphetamine amount is actual methamphetamine or methamphetamine mixture. If actual methamphetamine, then the report would be wholly irrelevant as we are determining DeSivo's sentencing range based on methamphetamine mixture.*fn5

Without indicating whether it tested for actual or a mixture of methamphetamine, the report is too ambiguous to have any bearing here.

Nevertheless, out of an abundance of caution, we find that Smith was able to yield only one ounce of methamphetamine per thousand pills of pseudoephedrine, instead of the four ounces Smith's testimony suggests. Testimony from other witnesses indicated that one ounce was the average a cook could yield from a thousand pills. See Saxbury testimony, Trial Tr. vol. 2, 205:6-10 (indicating that he was able to get only an ounce of methamphetamine per thousand pills); Talda testimony, Trial Tr. vol. 5, 87:8-16, August 22, 2005 (same); Moore testimony, Trial Tr. vol. 3, 33:6-21, August 18, 2005 (testifying able to get less than an ounce using between 700 to 1000 pills). In fact, John Teneyck, who was familiar with cooking methamphetamine, testified that "if you know what you're doing, you can get an ounce out....if you're not real good, you are going to get less." Trial Tr. vol. 3, 98:15-18. While we recognize that Smith was an experienced cook, his claim that he was able to yield four times more than what a good cook could yield appears suspect in light of other witness testimony. At most, his claimed high rate of return is equally plausible with the notion that he could only yield the one ounce return yielded by other cooks applying similar methods. When facing two equally plausible estimates, we are constrained to err on the side of caution and give the defendant the benefit of the doubt. Therefore, we find that Smith and DeSivo yielded one ounce per thousand pills.*fn6

DeSivo also argues that he only cooked with Smith four times. We note that not only does Smith's testimony clearly indicate that DeSivo and Smith cooked at least five times, but that in fact the testimony supports eight times - five at Smith's house, and three at Desivo's residence. DeSivo points to no contradictory testimony by either Smith or another witness. Therefore, at least five times is attributable, if not more.

Finally, DeSivo argues Smith's testimony concerning his supplying activities is too speculative. Specifically, DeSivo argues that the court should discount the number of times Smith supplied DeSivo because, when asked to estimate whether he supplied DeSivo more than six times, Smith stated the following: "yeah probably. I don't know, ten to 20 times, I'd say." Trial Tr. vol. 2, 109:13-17. DeSivo also argues as speculative Smith's testimony regarding the amount of methamphetamine he gave DeSivo because Smith prefaced the amount with the term "probably."

DeSivo's arguments are unpersuasive. The use of qualifiers do not relegate Smith's uncontradicted testimony to speculative status. Instead, these qualifiers at worst suggest that Smith was estimating his and DeSivo's drug supplying activities, which the court, after hearing Smith on the stand and assessing his credibility as a witness, considers credible enough to meet a preponderance of the evidence standard. Therefore, we find that Smith supplied DeSivo at least ten times with an ounce (28.35 grams) of methamphetamine each time.

In sum, we will attribute 425.25 grams to DeSivo: 141.75 grams for five instances in which Smith and DeSivo cooked one ounce of methamphetamine (5 x 28.35 grams), and 283.5 grams for the ten instances Smith supplied DeSivo with at least an ounce of the drug (10 x 28.35 grams).

B. Mark Saxbury

During trial, Mark Saxbury testified that he met DeSivo through a mutual acquaintance named Billy Fenton. Trial Tr. vol. 2, 165. According to Saxbury, DeSivo supplied him with anyhdrous ammonia "like two to three times," which Saxbury used to make "about an ounce" of methamphetamine each time. Id. at 168:14-169:24. The government argues this testimony establishes that 2 to 3 ounces (56.7-85.05 grams) of methamphetamine should be attributed to DeSivo for sentencing purposes. In contrast, DeSivo argues that this testimony fails to meet the preponderance of the evidence standard, largely because ...

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