127 F. 3d 1107 - United States v. G Inscore

MEMORANDUM*

We affirm the district court's two-point increase of Wesley Gene Inscore's (Inscore) sentencing range for possession of a dangerous weapon during a drug conspiracy. United States Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(b) (1997). We reject Inscore's argument that the district court's findings regarding weapons possession were unjustified. Inscore maintains that because he contested statements in the presentence report and the government did not call witnesses to counter his statements, the prosecution's burden of proof by a preponderance was never met; therefore, the judge's findings regarding weapons possession were insufficiently supported. See United States v. Restrepo, 946 F.2d 654, 661 (9th Cir.1991) (en banc), cert. denied, 503 U.S. 961 (1992) (government bears the burden of proof by preponderance of the evidence in sentencing phase). There are two problems with his argument.

a. The district court had Inscore's testimony as well as the presentence report on which to rely.

Inscore's contention that the trial judge "relied solely" on the presentence report is unjustified. The judge also had Inscore's testimony on which to base his finding. The record makes it clear that the judge seriously doubted Inscore's explanation of his transfer of the sawed-off shot gun to Galland as a "gift" for "bird hunting." Observing Inscore's demeanor and hearing his explanations, the trial judge had a proper basis for concluding that the guns Inscore admitted to transferring were drug-related. Given that precedent and the Application Notes accompanying the Sentencing Guidelines instruct that the enhancement be applied "unless it is clearly improbable that the weapon was connected with the offense," the district court's conclusion deserves deference. See U.S.S.G. § 2D1.1, Application Note 3 (1997); United States v. Gillock, 886 F.2d 220, 222-23 (9th Cir.1989).

b. The district court could rely on the presentence report.

Inscore's due process rights were not violated by the district court's reliance on the presentence report. Trial courts generally may adopt the factual findings of presentence reports. See United States v. Rigby, 896 F.2d 392, 394 (9th Cir.1990). While there are exceptions to this general rule, this case does not fall within any of them. Allowing out-of-court statements by witnesses not subject to cross-examination during sentencing does not violate the due process clause. See Williams v. New York, 337 U.S. 241, 249-51 (1949).

The presentence report and Inscore's own testimony support the two-point enhancement for possession of a dangerous weapon.

AFFIRMED.