United States v. Littlesun ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30300
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00080-RFC
HORACE LITTLESUN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
September 12, 2005—Seattle, Washington
Filed April 21, 2006
Before: James R. Browning, Arthur L. Alarcón, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Kleinfeld
4551
UNITED STATES v. LITTLESUN 4553
COUNSEL
Larry Jent, Williams & Jent, PLLP, Bozeman, Montana, for
appellant Horace Littlesun.
Marcia Hurd, Assistant U.S. Attorney, District of Montana,
for appellee United States of America.
4554 UNITED STATES v. LITTLESUN
OPINION
KLEINFELD, Circuit Judge:
We publish this opinion to resolve whether, after Crawford
v. Washington, it is appropriate to use hearsay testimony dur-
ing sentencing. We join each of our sister circuits who have
considered the issue in concluding that it is.
FACTS
Horace Littlesun, his wife, and numerous others conspired
to sell and sold methamphetamine on the Northern Cheyenne
Indian Reservation in Montana. Their inventory came from
several out-of-state individuals the reservation residents called
“the Mexicans.”
Littlesun pled guilty to selling 3.7 grams of methamphet-
amine to an undercover informant,1 but the sentencing judge
held him accountable for 32.5 grams. The approximate one
ounce difference generated a guideline adjustment that length-
ened Littlesun’s sentence. Littlesun’s wife had told a Bureau
of Indian Affairs agent that her husband had sold the addi-
tional ounce, but she did not testify at Littlesun’s sentencing
hearing. The BIA agent who interviewed her testified to what
she had told him. The sentencing judge believed the agent and
imposed the quantity adjustment accordingly. Littlesun was
also denied a downward adjustment for minor or minimal role
in the conspiracy, partly on the basis of what his wife had told
the agent.
The sentencing judge considered the defense’s confronta-
1
Conspiracy to distribute methamphetamine within 1,000 feet of the
Northern Cheyenne federal housing project in violation of 21 U.S.C.
§§ 841(a)(1), 860, & 846, and distributing less than 50 grams of metham-
phetamine within 1,000 feet of the Northern Cheyenne federal housing
project.
UNITED STATES v. LITTLESUN 4555
tion clause objection to the BIA agent’s testimony and over-
ruled it, concluding that all that he needed was “some
particularized guarantee of trustworthiness” rather than con-
frontation and cross-examination of Littlesun’s wife. The
agent testified that the wife had told him that “the Mexicans”
had fronted an ounce to her husband in February 2003 for a
price of $1,500.2 She and her husband were selling grams for
$100 and smaller “bindles” for $25. Her husband also col-
lected debts for “the Mexicans,” wired money to them, and
permitted them to stay at his house on their trips to the reser-
vation.
When the investigation broke open, Littlesun’s wife talked
to the investigators but he did not. She refused to disclose
who her customers were, but said that her husband used a
gram of methamphetamine himself every few days, which
would offer an alternative path for the disappearance of the
ounce he was fronted.
Littlesun testified that one of the Mexicans was “making a
move” on his wife, and “[t]hey must have fell in love or
something,” so he moved out to his sister’s and was staying
with her in Busby, Montana, during the first three months of
2003. During that period he was “stepping out” on his wife
with another woman, and she was angry at him for it. But he
had moved back home a couple of days before the March sale
of 3.7 grams to the undercover agent, though they were “still
having [their] feud.” (This was not their first tiff — the pre-
sentence report says that the wife had stabbed him several
years before.) He denied selling the ounce, denied it was
fronted to him, and denied collecting debts for “the Mexi-
cans.” He testified that he only sold the 4 grams when the
informant came to his house and asked for his wife, and the
wife and informant told him to go to the neighbor’s at the end
of the cul-de-sac and bring back the drugs for her deal.
2
To front drugs is to advance the inventory to a dealer on credit.
4556 UNITED STATES v. LITTLESUN
On cross-examination, Littlesun admitted that he wired
$711 to someone in Utah on December 14, 2002, and $921 to
one of his co-defendants on January 5, 2003. He knew at the
time that the money was drug trafficking proceeds and that
there was a drug conspiracy going on, but said his wife “had
her own thing going.”
The district judge was hearing this case after Blakey3 and
before Booker,4 so he applied a “beyond a reasonable doubt”
standard at sentencing. The judge did not impose an upward
adjustment to Littlesun’s guideline calculation for wiring the
money, but considered the money transfers in determining
whether Littlesun was telling the truth about the ounce. He
found beyond a reasonable doubt that Littlesun knew about
the conspiracy, though he did not adjust the sentence to reflect
the 210 gram amount charged to the conspiracy in Count I of
the indictment. Despite Littlesun’s denial, the sentencing
judge found beyond a reasonable doubt that the ounce was
fronted to Littlesun and that he sold it. The sentencing judge
disbelieved Littlesun because he denied personal involvement
with the conspiracy even while “the Mexicans” lived in his
house and he wired money to them. So he accepted the wife’s
out-of-court statement to the BIA agent. As a result, Littlesun
got 33 months to serve even though he had no significant
criminal history. His wife got only 18 months.
ANALYSIS
A. Hearsay at Sentencing
[1] The Supreme Court held in Williams v. New York5 that
admission of hearsay evidence at sentencing did not violate
the due process clause. In that case, a jury had recommended
life imprisonment for a murderer but the judge imposed a
3
Blakely v. Washington, 542 U.S. 961 (2004).
4
United States v. Booker, 543 U.S. 220 (2005).
5
Will. v. New York, 337 U.S. 241, 246 (1949).
UNITED STATES v. LITTLESUN 4557
death sentence because the presentence investigation revealed
additional aggravating evidence that the jury had not heard.
The Court explained that,
both before and since the American colonies became
a nation, courts in this country and in England prac-
ticed a policy under which a sentencing judge could
exercise a wide discretion in the sources and types of
evidence used to assist him in determining the kind
and extent of punishment to be imposed within lim-
its fixed by law.6
This may include affidavits and, in smaller communities, the
judge’s own knowledge. When Williams was decided in 1949,
presentence reports had just begun to be considered, the Court
noted, to implement “a prevalent modern philosophy of
penology that the punishment should fit the offender and not
merely the crime,” so that the death sentence was no longer
“an automatic and commonplace result of convictions.”7 Indi-
vidualization of sentences made it especially necessary to
review a broad range of sentencing information that was not
appropriately submitted to juries considering guilt.
[2] Congress has since provided by statute that the hearsay
rule and other evidentiary limitations do not apply to sentenc-
ing:
No limitation shall be placed on the information con-
cerning the background, character, and conduct of a
person convicted of an offense which a court of the
United States may receive and consider for the pur-
pose of imposing an appropriate sentence.8
6
Id. at 246.
7
Id. at 247.
8
18 U.S.C. § 3661.
4558 UNITED STATES v. LITTLESUN
We require only that the testimony “be accompanied by some
minimal indicia of reliability.”9 In this case, that criterion is
plainly satisfied by the judge’s personal observation of the
defendant’s demeanor during his testimony, the wire transfers
and their significance, and testimonial inconsistencies noted
by the sentencing judge.
[3] Littlesun argues that these longstanding principles have
been implicitly overruled and that the Supreme Court’s deci-
sion in Crawford v. Washington10 requires that the Confronta-
tion Clause be interpreted to exclude hearsay at sentencing.
But Crawford does not expressly speak to sentencing. It holds
that, with the possible exception of dying declarations, the
Confrontation Clause demands two things for admissibility of
testimonial hearsay at trial: unavailability of the witness and
prior opportunity for cross-examination.11 Crawford speaks to
trial testimony, not sentencing.
Littlesun’s argument nevertheless has some force. Though
the meaning of “testimonial” in Crawford is not entirely clear,
there can be no question that Littlesun’s wife’s testimony is
testimonial if Crawford applies to sentencing. And the record
is clear that Littlesun never had an opportunity to cross-
examine his wife about what she said. Cross examination
might have been productive, because her participation in the
methamphetamine conspiracy and her own interest in
lenience, her boyfriend among “the Mexicans,” his girlfriend,
and the prior occasion when she stabbed Littlesun all might
have given rise to an inference that she was not telling the
truth when she cast the blame on her husband for the addi-
tional ounce.
9
United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (internal quo-
tations omitted).
10
Crawford v. Washington, 541 U.S. 36 (2004).
11
Id. at 63-64, 68-69 (overruling the “particularized guarantees of trust-
worthiness” test in Ohio v. Roberts to the extent it is inconsistent with
Crawford).
UNITED STATES v. LITTLESUN 4559
[4] But it is not for us to overrule the Supreme Court’s
decision in Williams. Under Agostini v. Felton,12 we are bound
to apply controlling Supreme Court precedent until it is
explicitly overruled by that Court.13 And Crawford does not
explicitly overrule Williams. Thus the law on hearsay at sen-
tencing is still what it was before Crawford: hearsay is admis-
sible at sentencing, so long as it is “accompanied by some
minimal indicia of reliability.”14
[5] The same conclusion has been reached by the First,
Second, Sixth, Seventh, Eighth, and Eleventh Circuits,15 and
none of our sister circuits have reached a contrary conclusion.
And we have previously held that “[f]ederal law is clear that
a judge may consider hearsay information in sentencing a defen-
dant.”16
[6] Littlesun counters with our decisions in United States v.
Comito17 and United States v. Martin,18 but those cases
involved revocation of parole and supervised release, not sen-
tencing. Those decisions were grounded in the Supreme
12
Agostini v. Felton, 521 U.S. 203, 237 (1997) (“If a precedent of this
Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should fol-
low the case which directly controls, leaving to this Court the prerogative
of overruling its own decisions.” (internal citation omitted)).
13
United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005).
14
United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (internal
quotations omitted).
15
See, e.g., United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005);
see also United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005);
United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005); United States
v. Roche, 415 F.3d 614, 618 (7th Cir. 2005); United States v. Brown, 430
F.3d 942, 944 (8th Cir. 2005); United States v. Chau, 426 F.3d 1318, 1323
(11th Cir. 2005).
16
United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988).
17
United States v. Comito, 177 F.3d 1166, 1172 (9th Cir. 1999).
18
United States v. Martin, 984 F.2d 308 (9th Cir. 1993).
4560 UNITED STATES v. LITTLESUN
Court’s decision in Morrissey v. Brewer19 which expressly
held that a parolee is entitled to cross-examine witnesses at a
revocation proceeding,20 subject to balancing certain factors.
That requirement has since been codified in the Federal Rules
of Criminal Procedure,21 but neither Morrissey nor the Federal
Rules of Criminal Procedure say anything about Williams or
the right to examine adverse witnesses at sentencing. A court
is presented with quite a different set of circumstances when
it has to decide whether someone is guilty and must go to
prison than when it is deciding how long a convicted criminal
must serve. We rejected an attempt to graft Crawford’s Sixth
Amendment rule onto Morrissey’s Due Process requirement
at revocation proceedings in our recent decision in United
States v. Hall.22 United States v. Corral23 holds that reversal
is necessary where the sentencing judge relies on what was
concededly unreliable hearsay.24 It does not hold that accom-
plice hearsay is unreliable even where there are sufficient
indicia of reliability. The government conceded on appeal in
Corral that the hearsay was unreliable, but had not done so at
sentencing.25 Corral expressly recognizes that hearsay is
admissible at sentencing.26 The reliability of Littlesun’s wife’s
hearsay might have become doubtful because she was an
accomplice with a penal interest and had demonstrated her
hostility to her husband, but the wire transfers and inconsis-
19
Morrissey v. Brewer, 408 U.S. 471 (1972).
20
Id. at 488-89.
21
See Fed. R. Crim. Proc. 32.1(b)(2)(C).
22
United States v. Hall, 419 F.3d 980, 985 (9th Cir. 2005).
23
United States v. Corral, 172 F.3d 714 (9th Cir. 1999).
24
See id. at 715.
25
See id. (Explaining that the government conceded that the hearsay in
that case “was not reliable enough to be used.”).
26
See id. at 716 (Explaining that the sentencing “judge was correct that
hearsay is admissible in sentencing . . . .”).
UNITED STATES v. LITTLESUN 4561
tencies the district court noted were significant indicia corrob-
orating Littlesun’s role.27
B. Minor or Minimal Participant
[7] Littlesun also challenges the district court’s denial of a
downward adjustment because he was a minimal or minor
participant in the conspiracy.28 Much of his argument is that
the conspiracy sold a lot more methamphetamine than he par-
ticipated in, but the judge took this into account in attributing
to Littlesun only 32.5 grams, not the 210 grams the indictment
charged. The district judge relied on Littlesun’s wife’s state-
ment, as well other material in the presetence report to con-
clude that he had “a smaller role than some others in the
conspiracy, but it was by no means small enough” for a role
adjustment. We review denial of a role adjustment for clear
error,29 and there was none because the court accepted the evi-
dence of Littlesun’s wife’s statement.
[8] The district court’s determination that hearsay was
admissible at sentencing and its guideline calculation were
each correct. However, we grant a limited remand to allow the
district court to answer the question whether it would have
imposed a different sentence had it viewed the Guidelines as
advisory.30
AFFIRMED in part and REMANDED.
27
Littlesun also relies on United States v. Mezas de Jesus, 217 F.3d 638
(9th Cir. 2000), but it does not hold that hearsay or accomplice testimony
are inadmissible at sentencing. Rather, it holds that the clear and convinc-
ing standard of proof should have been applied where an uncharged
offense had an extremely disproportionate effect on the sentence relative
to the offense of conviction. See id. at 642-43.
28
U.S.S.G. § 3B1.2.
29
See United States v. Pena-Gutierrez, 222 F.3d 1080, 1091 (9th Cir.
2000) (Explaining that a “district court’s determination that the defendant
was not a minor participant in the offense is a factual determination that
we review for clear error.”).
30
United States v. Ameline, 409 F.3d 1073, 1079 (9th Cir. 2005) (en
banc).