United States v. Earlen L. Brown, Jr. ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1387
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Earlen L. Brown, Jr., * Western District of Missouri
*
Appellant.
___________
Submitted: November 14, 2005
Filed: December 9, 2005
___________
Before MURPHY, McMILLIAN and GRUENDER, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
Earlen L. Brown, Jr., appeals from a final judgment of the District Court1 for
the Western District of Missouri entered upon his guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). For reversal, Brown
argues that in light of United States v. Booker, 125 S. Ct. 738 (2005), the district court
erred in imposing a sentencing enhancement based on hearsay testimony. We affirm.
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
In October 2004, Brown pled guilty to being a felon in possession of a rifle, in
violation of 18 U.S.C. § 922(g)(1). In the presentence report (PSR), the probation
officer calculated the base offense level as 6 and recommended a 3-level decrease for
acceptance of responsibility under U.S.S.G. § 3E1.1, and a 4-level increase under
§ 2K2.1(b)(5) for possession of a firearm in connection with another felony offense.
In paragraph 7 of the PSR, the probation officer recited facts showing that Brown had
used the rifle in connection with the attempted robbery of Erica Cargo. With a total
offense level of 15 and criminal history category of V, the sentencing range was 37
to 46 months.
Brown objected to paragraph 7 and to the § 2K2.1(b)(5) enhancement. At the
February 3, 2005, sentencing hearing, the government presented the testimony of
Kansas City, Missouri, Police Officer Steven Griswold in support of the enhancement.
Griswold testified that on September 1, 2004, he responded to a disturbance call at
Cargo's home. Griswold further testified that when he arrived on the street, Cargo
waived him down and told him that Brown, who was her ex-boyfriend, entered her
home without permission, demanded money, pointed a rifle at her, threatened to kill
her if she did not give him money, and pulled the trigger, but the rifle failed to fire
because of a trigger lock. Brown further testified that Cargo's daughter, Oderia
McCallop, told him that Brown pointed the rifle at her, but she fled and called the
police. Brown cross-examined Griswold, but called no witnesses.
The district court overruled Brown's objection to the application of the
§ 2K2.1(b)(5) enhancement. The district court found that Griswold's testimony was
uncontroverted and reliable and that the enhancement was warranted because Brown
had attempted to rob Cargo with the rifle. Noting that Booker had rendered the
sentencing guidelines advisory, the district court adopted the PSR's sentencing range
of 37 to 46 months and sentenced Brown to 42 months imprisonment.
-2-
We reject Brown's argument that in light of Booker, the district court erred in
relying on hearsay testimony in support of the § 2K2.1(b)(5) enhancement. "In
determining the appropriate guidelines sentencing range to be considered as a factor
under § 3553(a), we see nothing in Booker that would require the court to determine
the sentence in any manner other than the way the sentence would have been
determined pre-Booker." United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005).
Specifically, Booker "provide[s] no basis to question prior . . . decisions that
expressly approved the consideration of out-of-court statements at sentencing."
United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005); see also United States
v. Luciano, 414 F.3d 174, 179 (1st Cir 2005) (Booker did not alter "view that there is
no Sixth Amendment right to confront witnesses during the sentencing phase").
We also note that courts have held that Crawford v. Washington, 541 U.S. 36(2004), in which the Supreme Court held that admission of testimonial hearsay at trial
violates the Confrontation Clause unless the declarant is unavailable and the defendant
had a prior opportunity to cross-examine the declarant, "does not alter the pre-
Crawford law that the admission of hearsay testimony at sentencing does not violate
confrontation rights." United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005)
(citing United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005), cert. denied, 2005
WL 3027861 (U.S. Nov. 14, 2005) (No. 05-7031); Luciano, 414 F.3d at 179;
Martinez, 413 F.3d at 243).
In addition, contrary to Brown's standard-of-proof argument, "[n]othing in
Booker suggests that sentencing judges are required to find sentence-enhancing facts
beyond a reasonable doubt under the advisory Guidelines regime." United States v.
Pirani, 406 F.3d 543, 551 n.4 (8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005).
Accordingly, we affirm the judgment of the district court.
___________________________
-3-