United States v. Imran Mandhai

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 16, 2005
No. 04-15859
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-60096-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IMRAN MANDHAI,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(June 16, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Irman Mandhai appeals his sentence imposed on remand for conspiracy to
destroy property affecting interstate commerce, in violation of 18 U.S.C. section
844(n). Mandhai argues that the district court erred under United States v.
Booker, 543 U.S. __, 125 S. Ct. 738 (2005), when it treated the sentencing
guidelines as mandatory. We agree, vacate Mandhai’s sentence, and remand for a
second resentencing. Mandhai also argues that the district court erred when it
considered hearsay evidence at the sentencing hearing. We disagree and affirm as
to this issue.
As to the Booker error, Mandhai argues that the district court committed
statutory error when it considered the guidelines as mandatory in sentencing.
Because Mandhai made this objection to the district court, this Court reviews for
harmless error. See United States v. Mathenia, __ F.3d __, No. 04-15250, slip op.
at *5 (11th Cir. May 23, 2005). A statutory error is harmless “if, viewing the
proceedings in their entirety, . . . the error did not affect the sentence, or had but a
very slight effect.” Id. at *5-6. The government concedes that the district court
committed statutory error when it applied the guidelines in a mandatory fashion
and concedes that it cannot establish that the error was harmless.
As to the hearsay issue, Mandhai argues that, in the light of Booker, this
Court must expand Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004),
to prohibit the district court from consideration of hearsay evidence at sentencing.
We apply a de novo standard of review, and conclude that the district court did not
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err when it considered hearsay evidence in sentencing. See United States v.
McDaniel, 338 F.3d 1287, 1288 (11th Cir. 2003).
As Mandhai admits, this Court has repeatedly concluded that “reliable
hearsay can be considered during sentencing.” United States v. Zlatogur, 271 F.3d
1025, 1031 (11th Cir. 2001); see also United States v. Wilson, 183 F.3d 1291,
1301 (11th Cir. 1999); United States v. Castellanos, 904 F.2d 1490, 1495 (11th
Cir. 1990). The district court may rely on such evidence “as long as the evidence
has sufficient indicia of reliability, the court makes explicit findings of fact as to
credibility, and the defendant has an opportunity to rebut the evidence.” United
States v. Anderson, 136 F.3d 747, 751 (11th Cir. 1998). Reliability can be
inferred where the evidence falls into a hearsay exception; “[o]therwise there must
be a showing of particularized guarantees of trustworthiness.” United States v.
Reme, 738 F.2d 1156, 1168 (11th Cir. 1984).
Mandhai contends, however, that “the rule of Crawford,” that earlier
testimonial statements may be admitted at trial only if the declarant is unavailable
and the defendant had an opportunity to confront the declarant, must be extended
“when read in [the] light of the re-vitalized and expansive Sixth Amendment right
to trial which was the basis for Blakely . . . and Booker, as applicable to
sentencing after a plea.” We disagree. Crawford addressed the admissibility of
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testimonial hearsay at trial, not the consideration of hearsay by the court at
sentencing. Under our clear precedent that reliable hearsay can be considered
during sentencing, we refuse to extend Crawford to sentencing without a clear
directive from the Supreme Court.
We AFFIRM the use of hearsay evidence by the district court at the
sentencing hearing, but VACATE Mandhai’s sentence and REMAND for
resentencing because of the statutory error under Booker.
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