United States v. Salas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-40616
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL SALAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-659-ALL
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Michael Salas appeals the sentence imposed after he pleaded
guilty to one count of possession of an unregistered firearm. He
contends that his sentencing under the advisory guideline system
announced in United States v. Booker1 violates due process and ex
post facto principles. Salas recognizes that the contention is
foreclosed.2 Also for purposes of further review, Salas
*
Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
543 U.S. 220 (2005).
2
United States v. Austin, 432 F.3d 598 (5th Cir. 2005) (per curiam);
United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005).
preserves his argument that, in light of Booker, the sentencing
court should have found beyond a reasonable doubt the facts used
to calculate the sentence. We, however, have previously stated
that, post-Booker, “[t]he sentencing judge is entitled to find by
a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range and all facts
relevant to the determination of a non-Guideline sentence.”3
Again recognizing precedent to the contrary, Salas contends
that the sentencing court impermissibly relied on the challenged
facts recited in the presentence report (PSR), even though Salas
did not attempt to demonstrate the material unreliability of the
facts he disputed. He urges that the government be put to its
proof by a preponderance of the evidence. Post-Booker, the
defendant retains the burden to show “that the information in the
PSR relied on by the district court is materially untrue”4 and
that, absent such evidence, the district court may rely on the
facts recited in the PSR.5
Lastly, relying primarily on Crawford v. Washington,6 Salas
contends that the district court denied him the right to confront
witnesses at the sentencing hearing, repugnant both to the Sixth
3
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005); United States
v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006).
4
United States v. Betancourt, 422 F.3d 240, 248 (5th Cir. 2005).
5
United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005).
6
541 U.S. 36, 68-69 (2004).
2
Amendment and to due process. However, we have previously
recognized that “there is no Confrontation Clause right at
sentencing.”7
AFFIRMED.
7
United States v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999) (citing
Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996)); United States v. Leatch, 111
Fed. Appx. 770 (5th Cir. 2004) (recognizing that Navarro controls).
3