United States v. Underwood

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-30918
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEE E. UNDERWOOD, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
(3:04-CR-30059-1)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Lee E. Underwood, Jr., appeals his
sentence following his guilty plea to conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a) and 846. Underwood contends that
the district court erroneously determined his offense level by
applying a preponderance of the evidence standard and by placing
the burden on him to refute factual allegations in the presentence
report (PSR).
*
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this opinion should not be published and is not precedent except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.
As Underwood was sentenced after the Supreme Court’s decision
in United States v. Booker, 543 U.S. 220 (2005), the district court
was entitled to find by a preponderance of the evidence all facts
necessary to calculate the guideline range. United States v.
Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). Further, Underwood bore the burden of proving that the
court should not rely on the PSR. United States v. Betancourt, 422
F.3d 240, 248 (5th Cir. 2005); United States v. Parker, 133 F.3d
322, 329 (5th Cir. 1998). In the absence of persuasive rebuttal
evidence, the district court was permitted to rely on facts in the
PSR. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.
2006).
Underwood also contends that statements in the PSR violated
Crawford v. Washington, 541 U.S. 36 (2004), which involved a
defendant’s right under the Confrontation Clause during his
criminal trial. Underwood’s Crawford-based arguments is
unavailing: There is no Confrontation Clause right at sentencing
and nothing in Crawford indicates that it is applicable to
sentencing proceedings. See United States v. Navarro, 169 F.3d
228, 236 (5th Cir. 1999).
Underwood asserts further advances that the district court
erroneously applied sentencing enhancements based on drug quantity,
possession of a firearm, and role as a leader or organizer in the
offense. He insists that a videotape recording of his statements
made to investigators shows that the PSR contained inaccurate
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information with respect to these enhancements. We conclude,
however, that Underwood has failed to show that the district
court’s sentence enhancements were clearly erroneous. See
Caldwell, 448 F.3d at 290; see also United States v. Washington, 44
F.3d 1271, 1281 (5th Cir. 1995).
Finally, Underwood advances that the district court ignored
the sentencing disparity between his sentence and the sentence of
his drug supplier in a related case, thereby violating the
principles of 18 U.S.C. § 3553(a)(6). We note that the district
court explained Underwood’s sentence in light of the higher drug
quantity attributed to him and his leadership role and greater
criminal history. Underwood has not overcome the presumption of
reasonableness afforded to his sentence. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
AFFIRMED.
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