US v. David Otero-Campo

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:08-cr-00027-RLV-DCK-3 Copies to all parties and the district court/agency. [998570929].. [10-4257]

Case: 10-4257

Document: 44

Date Filed: 04/19/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4257

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID OTERO-CAMPOS,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:08-cr-00027-RLV-DCK-3)

Submitted:

March 30, 2011

Decided:

April 19, 2011

Before AGEE, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Ross H. Richardson, Assistant
Federal Defender, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-4257

Document: 44

Date Filed: 04/19/2011

Page: 2

PER CURIAM:
David
151-month

Otero-Campos

sentence

after

appeals

pleading

his

guilty

conviction

pursuant

to

and

a

plea

agreement to one count of conspiracy to distribute and possess
with intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846 (2006), and one count of possession with
intent

to

violation

distribute
of

18

cocaine

U.S.C.

841(b)(1)(A) (2006).

§ 2

and

aiding

(2006),

21

and

abetting,

U.S.C.

§§

in

841(a)(1),

Otero-Campos’s sole assertion on appeal is

that the district court violated his due process rights when it
enhanced

his

sentence

based

on

evidence

sufficient indicia of reliability.
This
findings

for

court
clear

reviews

error

and

he

asserts

lacked

Finding no error, we affirm.

the

district

its

legal

court’s

factual

conclusions

de

United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008).

novo.
The

deferential “clear error” standard of review requires reversal
only

if

this

court

is

“left

with

the

definite

conviction that a mistake has been committed.”
Stevenson,

396

F.3d

538,

542

(4th

Cir.

and

firm

United States v.
2005)

(quoting

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).
“District
latitude

as

to

sentence

after

438 F.3d

437,

the
a
439

courts

traditionally

information
conviction.”
(4th

Cir.

they

2

may

United

2006)

have

been

consider
States

(internal

given
in
v.

wide

passing
Nichols,

quotation

marks

Case: 10-4257

omitted).

Document: 44

Date Filed: 04/19/2011

Page: 3

“That is because it is highly relevant — if not

essential — to the selection of an appropriate sentence for the
sentencing

court

to

possess

the

fullest

information

possible

concerning the defendant’s life and characteristics.”

Id. at

440 (internal quotation marks and alterations omitted).
Thus,

a

sentencing

court

may

consider

any

relevant

information “without regard to its admissibility under the rules
of evidence applicable at trial, provided that the information
has sufficient indicia of reliability . . . ”
Guidelines

Manual

(“USSG”)

§

6A1.3(a)

U.S. Sentencing

(2008).

See

United

States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010) (“[A]
sentencing court may give weight to any relevant information
before it, including uncorroborated hearsay. . . .”); see also
United States v. Paulino, 996 F.2d 1541, 1547 (3d Cir. 1993)
(“[A]

sentencing

judge

may

consider

information,

largely

unlimited as to kind or source, that would be inadmissible at
trial.”) (internal quotation marks omitted).
There
information
instance,

are

a

district

this

court

constitutional
court
has

may

limitations

consider,

“construed

various

on

the

however.

For

Supreme

Court

decisions as recognizing a due process right to be sentenced
only on information which is accurate.”

Nichols, 438 F.3d at

440 (internal quotation marks and brackets omitted).

Thus, the

Guidelines explicitly suggest that information relied upon at
3

Case: 10-4257

sentencing
support

Document: 44

should

its

reviewed

probable

the

information
sufficient

relied

“sufficient

indicia

accuracy.”

district

indicia

accuracy.

have

Date Filed: 04/19/2011

court

upon
of

USSG

record

by

the

of

and

to

reliability

§ 6A1.3(a).
conclude

district

reliability

Page: 4

court

support

its

to

We

have

that

the

possessed
probable

We thus conclude that the district court did not err

when it calculated Otero-Campos’s Guidelines range.
Based on the foregoing, we affirm the district court’s
judgment.
legal
before

We dispense with oral argument because the facts and

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

4