United States v. Lamas ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-41123
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERT LAMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:03-CR-98-ALL
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Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gilbert Lamas appeals from his guilty-plea convictions for
being a felon in possession of a firearm (“Count 1”) and
possession of firearms in furtherance of a drug-trafficking crime
(“Count 3”). Lamas argues that, for Count 1, the use of his
prior state conviction in determining his base offense level and
his criminal history category constitutes impermissible double
counting. He concedes that his argument is foreclosed by United
States v. Hawkins, 69 F.3d 11, 15 (5th Cir. 1995), but raises the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41123
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issue to preserve it for potential Supreme Court review. Because
this issue is foreclosed, it does not warrant relief.
Lamas contends that the district court clearly erred by
applying U.S.S.G. § 2K2.1(c)(1)(B) to cross-reference his offense
in Count 1 to U.S.S.G. § 2A1.1(a), which is the guideline for
first-degree murder, because there was insufficient evidence
supporting that cross-reference. Examination of the record shows
that, because the evidence linking Lamas to the drive-by shooting
was sufficiently reliable and was not rebutted by Lamas, the
district court did not err in adopting that evidence. See United
States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). Based
on that evidence, the district court did not clearly err by
applying the cross-reference provision in U.S.S.G.
§ 2K2.1(c)(1)(B). See United States v. Angeles-Mendoza,
__F.3d__, No. 04-50118, 2005 WL 950130 at *2 (5th Cir. Apr. 26,
2005).
Lamas argues that, because the fact that he possessed a
firearm in furtherance of a drug-trafficking crime was not proved
beyond a reasonable doubt, his sentence for Count 3 violated his
Sixth Amendment rights under Blakely v. Washington, 124 S. Ct.
2531 (2004), because it increased his sentence beyond the
statutory maximum for Count 1. That argument lacks merit. See
United States v. Hicks, 389 F.3d 514, 532 (5th Cir. 2004).
Lamas also argues that the testimonial evidence presented at
his sentencing hearing included hearsay evidence that was
No. 04-41123
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insufficiently reliable due to the lack of corroborating evidence
and that the admission of that hearsay evidence violated his
rights under the Confrontation Clause. Lamas correctly concedes
that this court has held that “[t]here is no Confrontation Clause
right at sentencing.” United States v. Navarro, 169 F.3d 228,
236 (5th Cir. 1999). Moreover, as the evidence had a
sufficiently reliable basis, the district court did not err in
considering that evidence at sentencing. U.S.S.G. § 6A1.3(a).
Lamas contends that the sentencing court’s failure to order
the production of Lamas’s brother’s statement upon Lamas’s motion
violated FED. R. CRIM. P. 26.2(a). However, because Lamas’s
brother was not a testifying witness at the sentencing hearing,
there was no violation of FED. R. CRIM. P. 26.2(a).
The district court’s judgment of conviction is AFFIRMED.