United States v. Leatch ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 5, 2004
Charles R. Fulbruge III
Clerk
No. 04-10107
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD EARL LEATCH, also known as Low Down,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-78-3-N
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Edward Earl Leatch pleaded guilty to conspiracy to
distribute and possess with intent to distribute 50 grams or more
of cocaine base, and he was sentenced to 168 months in prison.
Leatch argues that under Crawford v. Washington, ___ U.S. ___,
124 S. Ct. 1354 (2004), his Confrontation Clause right was
violated during his sentencing proceeding. Crawford involved a
defendant’s right under the Confrontation Clause during his
criminal trial. 124 S. Ct. at 1356-58. “[T]here is no
*
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this opinion should not be published and is not precedent except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. 04-10107
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Confrontation Clause right at sentencing.” United States v.
Navarro, 169 F.3d 228, 236 (5th Cir. 1999). Nothing in Crawford
indicates that its holding is applicable to sentencing
proceedings. Accordingly, Leatch’s Crawford-based argument lacks
merit.
Leatch also argues that the district court erred in
determining the drug quantity attributable to him. Leatch
asserts that the drug quantities sold by his co-conspirators
could not have been reasonably foreseeable to him. The record
shows that Leatch and his co-conspirators belonged to a gang who
sold drugs openly on the street and who controlled the block
where they sold drugs. The information contained in the PSR,
which was unrebutted by Leatch, was corroborated by police
surveillance and undercover drug buys. The district court did
not clearly err in determining the drug quantity attributable to
Leatch. See U.S.S.G. § 1B1.3(a)(1)(B); United States v. Peters,
283 F.3d 300, 314 (5th Cir. 2002); United States v. Wilson, 116
F.3d 1066, 1077 (5th Cir. 1997), vacated in part on other grounds
sub nom. United States v. Brown, 161 F.3d 256, 256 n.1 (5th Cir.
1998) (en banc); United States v. Buchanan, 70 F.3d 818, 834 (5th
Cir. 1995).
Finally, Leatch argues that the district court erred in
increasing his offense level by two pursuant to U.S.S.G.
§ 2D1.1(b)(1) based on the finding that he possessed a firearm in
connection with a drug-trafficking offense. The PSR stated that
No. 04-10107
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several weapons were recovered from the area where Leatch’s gang
sold drugs and that all of the gang members were aware that guns
were present, in and around the area where they sold drugs, as
protection for the drugs and the drug proceeds. At sentencing,
Leatch did not dispute that any of his co-conspirators possessed
firearms in connection with their drug-trafficking activity. Nor
did he dispute that there were weapons stashed nearby during the
street deals or that all of the gang members knew of their
presence and availability. Thus, the district court did not
clearly err in increasing Leatch’s offense level by two under
§ 2D1.1(b)(1). See United States v. Devine, 934 F.2d 1325, 1339
(5th Cir. 1991); United States v. Mir, 919 F.2d 940, 943 (5th
Cir. 1990); United States v. Aguilera-Zapata, 901 F.2d 1209, 1215
(5th Cir. 1990).
AFFIRMED.