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United States v. Torres Garcia , 312 F. App'x 703 ( 2009 )


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  •           IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
March 5, 2009
No. 08-40719
Summary Calendar                 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RENE TORRES GARCIA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CR-139-1
Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rene Torres Garcia appeals the sentence imposed following his guilty plea
conviction for intimidating a witness in violation of
    18 U.S.C. § 1512
    (b)(1).
Garcia argues that the district court erred in not making a finding regarding the
disputed matter of what Garcia said and did on the day in question as required
by F ED. R. C RIM. P. 32, that the district court “appeared” to rely on the testimony
of an unsworn case agent in determining his sentence, and, if so, that the district
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40719
court’s consideration of the case agent’s unsworn statements during the
sentencing hearing violated his Sixth Amendment rights. Because Garcia did
not raise arguments pursuant to Rule 32 and the Sixth Amendment in the
district court, those arguments are reviewed for plain error. See United States
v. Baker,
    538 F.3d 324
    , 332 (5th Cir. 2008), cert. denied,
    129 S. Ct. 962
     (2009).
The district court’s adoption of the presentence report was an implicit
resolution of the disputed matter at sentencing. Accordingly, the district court
made the required Rule 32 finding. See United States v. Duncan,
    191 F.3d 569
    ,
575 (5th Cir. 1999). In addition, Garcia has not demonstrated any plain error
with respect to the district court’s implicit finding that his sworn testimony at
the sentencing hearing was not credible and, thus, that he had not rebutted the
information provided by the presentence report. See United States v. Sotelo,
    97 F.3d 782
    , 799 (5th Cir. 1996); United States v. Edwards,
    65 F.3d 430
    , 432 (5th
Cir. 1995); see also
    18 U.S.C. § 3742
    (e).
Garcia also has not shown plain error with respect to his Sixth
Amendment claim. In United States v. Booker,
    543 U.S. 220
     (2005), the Supreme
Court eliminated any Sixth Amendment error caused by judicial factfinding with
respect to sentencing determinations by rendering the Sentencing Guidelines
advisory rather than mandatory. See United States v. Mares,
    402 F.3d 511
    , 519
(5th Cir. 2005). Moreover, this court has held that the Confrontation Clause
does not apply at sentencing. United States v. Mitchell,
    484 F.3d 762
    , 776 (5th
Cir. 2007), cert. denied,
    128 S. Ct. 869
     (2008); United States v. Beydoun,
    469 F.3d 102
    , 108 (5th Cir. 2006). The district court’s judgment is AFFIRMED.
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