01-4287 U.S. v. Noble

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“[T]here was no reliable evidence supporting the district court’s calculation attributing 65 ounces of cocaine to Noble’s sales at strip clubs when Jobe was not with him. That quantity was based on Jobe’s purported statement to police that Noble bragged to him about the frequency and duration of these sales. Jobe’s statement was summarized in the PSR, and according to the PSR, it was Jobe’s ‘belief’ that Noble sold cocaine at strip clubs five nights per week over the course of a year. Taking into account Jobe’s trial testimony that Noble ordinarily sold one-half to an ounce of cocaine, the district judge arrived at a figure of 130 ounces, which she then halved in arriving at an estimate of 65 ounces.

“Jobe did not testify at trial or during either sentencing hearing to the admissions purportedly made by Noble about quantities he sold when Jobe was not with him; nor did the agent to whom Jobe made the statement testify to the accuracy of the PSR summary or the agent’s written report of his interview with Jobe. Thus, the only information used to calculate the 65 ounces of cocaine came from the PSR summary of the agent’s report of what he was told by Jobe about what Noble told Jobe. And if we remove the agent’s report from this fragile chain of hearsay (as we must, because the district court did not consider it), then we are left with only the statement in the PSR that Jobe ‘believed’ that Noble sold a certain amount of drugs at strip clubs, with no indication from the PSR or anything in the record of the source or reliability of that belief. Under these circumstances, we conclude that the district court’s calculation of 65 ounces was clear error.”

Vacated and remanded.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Williams, J.