United States v. Wallace ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 20, 2008
No. 07-10967
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
BILLY WALLACE
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-39-2
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Billy Wallace was convicted of one count of possessing 50 grams or more
of cocaine base with intent to distribute and was sentenced to serve 262 months
in prison. Wallace appeals his sentence and challenges the district court’s
decision to deny him a downward adjustment to his guidelines sentencing range
based on his acceptance of responsibility for his offense.
When reviewing a sentence, we typically consider whether the district
court committed a significant procedural error at sentencing and whether the
*
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should not be published and is not precedent except under the limited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.
No. 07-10967
sentence imposed is substantively reasonable. See Gall v. United States, 128
S. Ct. 586, 597 (2007); see also United States v. Cisneros-Guiterrez, 517 F.3d 751,
764 (5th Cir. 2008). The district court’s interpretation and application of the
Guidelines are reviewed de novo, and its findings of fact are reviewed for clear
error. See Cisneros-Guiterrez, 517 F.3d at 764.
Wallace contends that his Due Process and Confrontation Clause rights
were violated at sentencing because the district court relied on a statement from
a codefendant, whom Wallace was not permitted to cross examine, when
considering the propriety of the disputed adjustment. This argument is
unavailing because the Confrontation Clause does not apply at sentencing. See
United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007); see also United
States v. Fields, 483 F.3d 313, 332 n.20 (5th Cir. 2007).
Wallace’s argument that an examination of the record supports his request
for the disputed adjustment is likewise unavailing. A review of the entire record
shows that the district court’s denial of the sentencing adjustment for acceptance
of responsibility is “plausible in light of the record taken as a whole.” See United
States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996); see also Cisneros-Guiterrez, 517
F.3d at 764. Consequently, the district court’s decision to deny Wallace the
disputed adjustment was not erroneous. See United States v. Solis, 299 F.3d
420, 458 (5th Cir. 2002).
In response to our request for supplemental briefing, Wallace also argues
that his sentence should be vacated and the case remanded for resentencing
based on the recent, retroactive amendments to the Sentencing Guidelines
pertaining to offenses involving crack cocaine. Wallace preserved this claim by
raising arguments concerning the amendments and the disparity betwixt the
guidelines ranges for powder and crack cocaine during his sentencing hearing.
Because Wallace preserved this claim, he “is entitled to have his sentence set by
a judge aware of the discretion that Kimbrough [v. United States, 128 S. Ct. 558
(2007)], has announced.” See United States v. Burns, 526 F.3d 852, 862 (5th Cir.
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No. 07-10967
2008). Accordingly, Wallace’s sentence is VACATED, and the case is
REMANDED to the district court so that it may analyze the 18 U.S.C. § 3553(a)
factors in light of Kimbrough.
We offer no opinion on a particular sentence and do not even suggest that
the district court should impose a different sentence on remand. We do,
however, note that the district court may, in its discretion, combine the
resentencing proceeding on remand with any proceedings that the court may
determine are appropriate in light of the recent amendments to the Guidelines
concerning offenses involving crack cocaine. See Burns, 526 F.3d at 862.
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