United States v. Statts ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4896
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN STATTS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-05-24)
Submitted: May 22, 2006 Decided: July 12, 2006
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian A. Glasser, Deirdre H. Purdy, BAILEY & GLASSER, L.L.P.,
Charleston, West Virginia, for Appellant. Charles T. Miller,
Acting United States Attorney, W. Chad Noel, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a plea agreement, Kevin Statts pled guilty to
attempting to manufacture methamphetamine under 21 U.S.C. § 846 and
possessing a firearm in furtherance of a drug trafficking crime
under 21 U.S.C. § 924(c)(1)(A). The Presentence Report recommended
a guidelines range of 84 to 105 months for the § 846 violation and
a consecutive mandatory minimum of 60 months for the § 924(c)(1)(A)
violation. The district court sentenced Statts to an 84-month term
of imprisonment for the § 846 violation and a consecutive 60-month
term for the § 924(c)(1)(A) violation.
On appeal, Statts primarily argues that he is entitled to
resentencing because the district court improperly admitted the
grand jury testimony of an unavailable witness during his
sentencing. Relying on Crawford v. Washington, 541 U.S. 36 (2004),
Statts contends that the Confrontation Clause should apply to the
district court’s consideration of this evidence. In Crawford, the
Supreme Court held that the Confrontation Clause prohibits the
admission at trial of testimonial statements that are not subject
to cross-examination. Id. at 50-51. We conclude that Statts’
position is without merit. See United States v. Chau, 426 F.3d
1318, 1323 (11th Cir. 2005) (holding that Crawford did not make the
Confrontation Clause applicable at sentencing); United States v.
Roche, 415 F.3d 614, 618 (7th Cir. 2005) (same); United States v.
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Luciano, 414 F.3d 174, 179 (1st Cir. 2005) (same); United States v.
Martinez, 413 F.3d 239, 243-44 (2d Cir. 2005) (same).
Additionally, Statts argues that he is entitled to
resentencing because the district court considered this grand jury
testimony in determining the relevant drug quantity under the
guidelines without inquiring whether it bore sufficient “indicia of
reliability.” United States v. Uwaeme, 975 F.2d 1016, 1021 (4th
Cir. 1992). Contrary to Statts’ position, it is apparent from the
record that the district court, in fact, discounted the estimation
of drug quantity from the grand jury testimony by noting that it
was “out of bounds.” J.A. 136. Also, Statts stipulated to the
relevant drug quantity in his plea agreement and confirmed this
stipulation during his plea hearing. Moreover, the district court
heard ample evidence from other live witnesses to support its
factual findings on the relevant drug quantity. Given Statts’ own
stipulation and the additional evidence supporting this
stipulation, we conclude that the district court did not err in
determining the relevant drug quantity.
Finally, Statts claims that he is entitled to resentencing
because his sentence is unreasonable under United States v. Booker,
543 U.S. 220 (2005). We have held that “a sentence within the
properly calculated Guidelines range . . . is presumptively
reasonable.” United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006) (internal quotation marks omitted). The district court
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appropriately treated the guidelines as advisory, properly
calculated and considered the guideline range, and weighed the
relevant § 3553(a) factors. Statts has failed to rebut the
presumption that the sentence was reasonable.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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