United States v. Sanders , 179 F. App'x 181 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WARREN SANDERS, a/k/a New York Mike, a/k/a
Charlie Brown, a/k/a William McKinney,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-03-86)
Submitted: February 28, 2006 Decided: May 8, 2006
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
John H. Tinney, Jr., James K. Tinney, THE TINNEY LAW FIRM,
P.L.L.C., Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, Miller A. Bushong, III, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Warren Sanders appeals the 235-month sentence he received
after we remanded his case for resentencing to correct an error in
his criminal history calculation. United States v. Sanders, No.
03-4768 (4th Cir. Aug. 27, 2004) (unpublished).* Sanders contends
that, when he was resentenced in November 2004, the district court
erred under United States v. Booker, 543 U.S. 220 (2005), in
computing his offense level and applying the guidelines as
mandatory, in making fact findings by a preponderance of the
evidence, and in considering testimonial hearsay evidence from law
enforcement interviews and grand jury testimony summarized in the
presentence report. The government does not oppose resentencing.
We vacate the sentence and remand for resentencing.
Relying on Booker and United States v. Hughes, 401 F.3d
540 (4th Cir. 2005), Sanders contends that the district court erred
in calculating his offense level based on relevant conduct that was
more than the five grams of crack he pled guilty to distributing.
We conclude that Sanders’ sentence was based on judicially found
facts concerning the drug quantity in violation of the Sixth
Amendment, as interpreted in Booker and Hughes. Resentencing is
thus necessary.
*
Sanders pled guilty to distribution of more than five grams
of cocaine base (crack) and was initially sentenced to a term of
262 months imprisonment.
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We note that Sanders maintains that Booker requires a
sentencing court applying the advisory guidelines to make fact
findings beyond a reasonable doubt. Neither Booker nor this
court’s decisions since Booker support his position. See Hughes,
401 F.3d at 557, 560 (applying clearly erroneous standard of review
to district court’s factual findings). In addition, relying on
Crawford v. Washington, 541 U.S. 36 (2004), Sanders contends that
the Confrontation Clause should apply to the district court’s
consideration of information in the presentence report that
increased his guideline sentence. In Crawford, the Supreme Court
held that the Confrontation Clause prohibits the admission of
testimonial statements that are not subject to cross-examination.
Id. at 50-51. Several circuits have held that Crawford did not
make the Confrontation Clause applicable at sentencing. See United
States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005); United
States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 126 S.
Ct. 671 (2005); United States v. Luciano, 414 F.3d 174, 179 (1st
Cir. 2005); United States v. Martinez, 413 F.3d 239, 243-44 (2d
Cir. 2005), cert. denied, 126 S. Ct. 1086 (2006). In light of
these decisions, we conclude that Sanders’ position is without
merit.
For the reasons discussed, we vacate the sentence imposed
by the district court and remand for resentencing consistent with
Booker and Hughes. We dispense with oral argument because the
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facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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