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United States of America v. Sergio Dominguez also known as Cesar
Case Number: 20-1168
Judge: Before BENTON, ERICKSON, and GRASZ, Circuit Judges.
Court: United States Court of Appeals
For the Eighth Circuit
On appeal from The U.S. District Court for the District of Nebraska - Lincoln
Plaintiff's Attorney: United States Attorney’s Office
St. Louis, MO - Criminal defense lawyer represented defendant charged with a conspiring to distribute 50 grams or more of actual methamphetamine.
Section 2D1.1(b)(5) provides for a two-level enhancement if “the offense
involved the importation of . . . methamphetamine” and “the defendant is not subject
to an adjustment under § 3B1.2 (Mitigating Role).”2
At sentencing, the district court
took evidence about the application of the enhancement, including testimony from
Brandon Kirkley (“Kirkley”) of the Grand Island Police Department, who was one of
the investigators in Dominguez’s case.
Kirkley testified that law enforcement worked with a confidential informant
(“CI”) who made thirteen controlled buys from Dominguez and his co-conspirators.
In the course of his dealings with the CI, Dominguez related that he was working with
the Sinaloa drug cartel in Mexico. Another cooperating individual reported that
Dominguez had informed him the drugs sold in Grand Island came from Sinaloa. In
addition, law enforcement placed a GPS tracker on Dominguez’s car, which showed
the car was in Mexico three times during the investigation and that on two of those
occasions controlled buys took place shortly thereafter. Kirkley also testified that the
investigation failed to identify any conspirator other than Dominguez who made
frequent trips to the southwest United States and Mexico. Finally, the court received
into evidence three exhibits containing a summary of Dominguez’s travel to Mexico
from the GPS tracker, and summaries of two conversations the CI had while making
controlled buys from the cooperating individual and Dominguez. Based on this
evidence, the district court found the two-level increase under § 2D1.1(b)(5) was
2Dominguez did not receive a mitigating role reduction.
Dominguez argues on appeal that Kirkley’s testimony about his statements to
the CI and the cooperating individual is unreliable because it is double hearsay and
because the cooperating individual was not fluent in English. These arguments are
unavailing because the Rules of Evidence do not apply to sentencing proceedings,
and “hearsay evidence, even double hearsay, can be used at sentencing proceedings
if it bears sufficient indicia of reliability to support its probable accuracy.” United
States v. Ngombwa, 893 F.3d 546, 557 (8th Cir. 2018) (cleaned up). As a general
principle, when hearsay evidence at sentencing is corroborated, it is sufficiently
reliable. Id. There is ample corroborating evidence in the record to support the
district court’s finding that Dominguez was affiliated with the Sinaloa cartel and that
he was importing drugs into the United States from Mexico. There is no indication
in the record of communication difficulties between law enforcement and the
cooperating witness. The hearsay evidence was sufficiently reliable to be considered
by the court when determining whether the sentencing enhancement was applicable.
Dominguez also argues the district court erred in finding his trips to Mexico
were related to the importation of methamphetamine. Findings of fact are reviewed
for clear error. United States v. Rivera-Mendoza, 682 F.3d 730, 733 (8th Cir. 2012).
“Reversal under clearly erroneous review requires a ‘definite and firm conviction that
a mistake has been committed.’” Id. (quoting United States v. Martinez,
446 F.3d 878, 881 (8th Cir. 2006)). Although Dominguez offered an innocent
explanation for his presence in Mexico, the district court reasonably made a
determination that Kirkley’s testimony was more credible than the claim that
Dominguez trips were to visit family.
Outcome: We affirm the judgment of the district court.