United States v. Boyd , 173 F. App'x 139 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-22-2006
USA v. Boyd
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1966
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1966
UNITED STATES OF AMERICA
v.
JESSE BOYD,
a/k/a Jet,
Jesse Boyd,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 03-00227)
Honorable James M. Munley, District Judge
Submitted under Third Circuit LAR 34.1(a)
March 6, 2006
BEFORE: ROTH and GREENBERG, Circuit Judges, and
BUCKWALTER, District Judge*
(Filed March 22, 2006)
OPINION OF THE COURT
*Honorable Ronald L. Buckwalter, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
GREENBERG, Circuit Judge.
Jesse Boyd appeals from a judgment of conviction and sentence entered on March
22, 2005, on his plea of guilty to a single-count indictment charging him with distribution
and possession with intent to distribute cocaine contrary to 21 U.S.C. § 841(a)(1). The
court calculated his total offense level as 31 which, with his criminal history of VI,
yielded a sentencing range of 188 to 235 months. The court sentenced Boyd to a
custodial term of 188 months to be followed by a three-year term of supervised release.
The district court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324,
327-28 (3d Cir. 2006). On this appeal Boyd raises the following issues:
A. Whether the District Court, post [United States v. Booker, 543
U.S. 220, 125 S. Ct. 739 (2005)], erred during [his] sentencing
hearing by requiring all facts used to enhance [his] sentence
be proved by a preponderance of the evidence, rather than
beyond a reasonable doubt.
B. Whether the District Court erred during [his] sentencing
hearing by not applying at least a clear and convincing
evidence standard to the fact-finding underlying any
enhancement when making a considerable upward guideline
departure.
C. Whether the District Court erred during [his] sentencing
hearing, when evaluating the admissibility of hearsay
statements that involved drug quantity, by not applying a
heightened standard of admissibility and where the Court did
not ‘rigorously apply’ the sufficient indicia of reliability
standard.
1. Whether the present case involves ‘the tail wagging the
dog’ requiring a higher standard of proof regarding drug
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quantity.
2. Whether the pre-sentence report and the District Court
erroneously attributed drug amounts to [him] by relying on
evidence that did not meet the ‘rigorously’ applied sufficient
indicia of reliability standard.
D. Whether the District Court erred during [his] sentencing
hearing by precluding [him] from inquiring into the identity of
a confidential informant, and whether or not the informant
was a drug-addict, even though the informant provided
critical information on drug quantity upon which the Court
ultimately relied to enhance [his] sentence.
E. Whether the District Court erred during [his] sentencing
hearing by admitting [his] statements made during a change of
plea hearing where [his] guilty plea was subsequently
withdrawn by the Court over [his] explicit objection at the
time of [his] initial sentencing hearing.
F. Whether the District Court erred during [his] sentencing
hearing by determining [his] Criminal History Category as VI
rather than V.
G. Whether the District Court erred, during [his] sentencing
hearing in that the Court did not conduct a ‘full hearing’ on all
controverted sentencing issues.
H. Whether the District Court erred under the advisory
guidelines when the Court imposed a sentence that is patently
unreasonable under the circumstances.
Br. at 2-3. After our review of this matter, we reject Boyd’s contentions without extended
discussion as we are satisfied that they are without merit. We nevertheless comment on
certain of them.
To start with we reject Boyd’s first two contentions with respect to the standard of
proof as we have held that the preponderance of the evidence standard is applicable when
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a court makes findings of fact for purposes of sentencing. See Cooper, 437 F.3d at 330;
United States v. Miller, 417 F.3d 358, 363 (3d Cir. 2005). Accordingly, to the extent that
United States v. Siegelbaum, 359 F. Supp. 2d 1104 (D. Or. 2005), which Boyd cites,
supports his argument, we will not follow that case.
Next we consider but reject Boyd’s contention that the court erred when evaluating
the admissibility of hearsay statements with respect to drug quantity because the court
relied in part on unreliable hearsay evidence. In reaching this conclusion we see no
reason to believe that the evidence was unreliable. Moreover, as we noted in United
States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996), a case we decided before Booker and
thus at a time that the guidelines were mandatory, “[t]he use of hearsay in making
findings for purposes of Guidelines sentencing violates neither the Sentencing Reform
Act of 1984 nor the Due Process Clause.” It seems to us that now that the guidelines are
advisory rather than mandatory, a district court should have, if anything, more rather than
less flexibility in finding facts and considering hearsay for sentencing purposes.
Finally we reject Boyd’s contention that the sentence imposed was “patently
unreasonable.” In this regard we point out that the court sentenced Boyd at the bottom of
the guideline range. While we do not suggest that that circumstance insulates the
sentence from a contention that it was unreasonable, still “it is less likely that a within-
guidelines sentence, as opposed to an outside-guidelines sentence, will be unreasonable.”
Cooper, 437 F.3d at 331; see also United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005).
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The judgment of conviction and sentence entered March 22, 2005, will be
affirmed.
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