F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 24, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-8072
SERGIO B USTAM AN TE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of W yoming
(D.C. No. 03-CR-58-J)
Submitted on the briefs:
Ronald G. Pretty, Cheyenne, W yoming, for D efendant-Appellant.
M atthew H. M ead, United States Attorney, and David A. Kubichek, Assistant
United States Attorney, Casper, W yoming, for Plaintiff-Appellee.
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
H E N RY, Circuit Judge.
Sergio Bustamante, a federal prisoner, pleaded guilty to unlaw fully
distributing more than fifty grams of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). In 2004, the district court sentenced him to 78 months’
imprisonment, and M r. Bustamante appealed, arguing that the district court
improperly enhanced his sentence in violation of Blakely v. Washington, 542 U.S.
296 (2004). After he filed his appeal, the Supreme Court issued its opinion in
United States v. Booker, 543 U.S. 220 (2005). The government recognized that
the district court had erred, and moved for remand. W e vacated M r. Bustamante’s
sentence and directed that the district court re-sentence him in light of Booker.
At re-sentencing, the district court imposed the same 78-month sentence,
but vacated a fine and special assessment. Here, M r. Bustamante appeals his re-
sentencing. He argues first that the district court erred by calculating the
advisory Sentencing Guidelines range based on facts not found by a jury to be
true beyond a reasonable doubt. Second, he argues that the sentencing hearing
violated the Confrontation Clause of the Sixth Amendment. W e exercise
jurisdiction under 28 U.S.C. § 1291 and affirm. 1
I. BACKGROUND
In M ay 2002, M r. Bustamante made three deliveries of methamphetamine
to an undercover officer, totaling 96.5 grams. Rec. vol. VI, at 6 (Pre-Sentence
Report (PSR ), dated June 15, 2004). Further investigation by the undercover
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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officer and a special agent revealed that three people had obtained, and then re-
sold, methamphetamine from M r. Bustamante and that M r. Bustamante had
facilitated a transaction between a fourth person and one of the investigators. The
methamphetamine involved in these other transactions totaled 533.8 grams. Id. at
6-9.
In M arch 2003, the government filed an indictment charging M r.
Bustamante with three counts of unlawful distribution of methamphetamine. M r.
Bustamante pleaded guilty to count three, which concerned only the M ay 2002
deliveries totaling 96.5 grams, and the government dismissed the other two
counts. The PSR, however, recommended that the other 533.8 grams be taken
into account as relevant conduct, making M r. Bustamante responsible for 630.3
grams of methamphetamine in total. Id. at 10.
At the initial sentencing hearing in July 2004, the district court heard
testimony from the two officers involved in the investigation into M r. Bustamante
and the other four individuals, who did not testify. Based on the officers’
testimony and the PSR, the district court found that M r. Bustamante’s relevant
conduct involved 630.3 grams. After taking into account certain reductions for
safety-valve relief and acceptance of responsibility, the offense level under the
Guidelines was level 27, which carried a sentencing range of 70-87 months. The
court sentenced M r. Bustamante to 78 months’ imprisonment.
At M r. Bustamante’s post-Booker re-sentencing, the district court discussed
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the evidence presented at the initial sentencing hearing. The district court
acknowledged that, after Booker, the Guidelines are advisory, but still must be
afforded “substantial weight” in sentencing. Rec. vol. V, at 7 (Re-Sentencing
Hr’g, dated July 25, 2005). After discussing both aggravating and mitigating
circumstances, the court stated:
It appears to me, based upon the information that is contained in the
presentence report in this matter, that there is substantial evidence to
support the calculation of 630.30 grams of methamphetamine based
upon a finding by a preponderance of the evidence and based upon the
record testimony of the officers that was received at the original
sentencing in this matter. I see no reason to change the sentence.
Id. at 9.
At re-sentencing, M r. Bustamante, through counsel, made two argum ents,
both of w hich he renew s on appeal. First, he objected to the district court’s
reliance on facts not found by a jury to enhance his sentence. He contends that
these judge-found facts violated Booker and that the district court should have
relied only on those facts to which he admitted or that were found by a jury.
Second, M r. Bustamante also objected to the portions of the investigators’
testimony that related to what other targets of their investigation told them about
M r. Bustamante’s involvement in methamphetamine distribution. He argues that
admitting this hearsay testimony violated the Confrontation Clause of the Sixth
A mendm ent. We review both arguments below.
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II. D ISC USSIO N
A. Booker Argument
M r. Bustamante contends that the district court violated Booker by relying
on facts not found by a jury to enhance his sentence in violation of the Sixth
Amendment. He does not dispute that the district court recognized that, after
Booker, the Guidelines were advisory, not mandatory. The government responds
that our precedent clearly forecloses M r. Bustamante’s argument, citing United
States v. M agallanez, 408 F.3d 672 (10th Cir. 2005) and United States v.
Lawrence, 405 F.3d 888 (10th C ir. 2005). W e review de novo a claim that the
district court’s sentence violated the Sixth Amendment. United States v. Dowell,
430 F.3d 1100, 1109 (10th Cir. 2005).
W e agree with the government that our circuit has already examined, and
rejected, M r. Bustamante’s argument. See United States v. Dalton, 409 F.3d
1247, 1252 (10th Cir. 2005) (“Booker therefore does not render judicial fact-
finding by a preponderance of the evidence per se unconstitutional. The remedial
portion of Booker demonstrates that such fact-finding is unconstitutional only
when it operates to increase a defendant’s sentence mandatorily.”); M agallanez,
408 F.3d at 685 (“[T]he Supreme Court’s holding in Booker would not have
prohibited the district court from making the same factual findings and applying
the same enhancements and adjustments to [the defendant’s] sentence as long as it
did not apply the Guidelines in a mandatory fashion.”) (quoting Lawrence, 405
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F3d at 890).
M r. Bustamante contends that these cases are distinguishable because they
reviewed the defendants’ arguments using a plain error standard of review, but
this distinction makes no difference: these cases unequivocally establish that, so
long as the district court applies the Guidelines in an advisory, rather than a
mandatory, fashion, it may rely on facts found by a judge to be true based on a
preponderance of the evidence.
B. Confrontation Clause Argument
M r. Bustamante next argues that the district court violated his Sixth
Amendment right to confront witnesses against him by relying on the hearsay
testimony of the officers involved in his case. He contends that the Sixth
Amendment requires that the other individuals involved in drug crimes, who
identified M r. Bustamante as their supplier, actually testify at the sentencing
hearing. Acknowledging that prior cases in our circuit have rejected this
argument, M r. Bustamante argues that the Supreme Court’s recent opinion in
Crawford v. Washington, 541 U.S. 36 (2004), requires us to reconsider and
reverse our prior position.
W e disagree. Crawford concerned the use of testimonial hearsay
statements at trial and does not speak to whether it is appropriate for a court to
rely on hearsay statements at a sentencing hearing. As we have explained, “[t]he
Supreme Court has made clear that the constitutional requirements mandated in a
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criminal trial as to confrontation and cross-examination do not apply at non-
capital sentencing proceedings.” United States v. Beaulieu, 893 F.2d 1177, 1180
(10th Cir. 1990). W e see nothing in Crawford that requires us to depart from our
precedent “that constitutional provisions regarding the C onfrontation Clause are
not required to be applied during sentencing proceedings.” United States v.
Hershberger, 962 F.2d 1548, 1554 (10th Cir. 1992); see also United States v.
Luciano, 414 F.3d 174, 179 (1st Cir. 2005) (“Nothing in Crawford requires us to
alter our previous conclusion that there is no Sixth Amendment Confrontation
Clause right at sentencing.”); accord United States v. Littlesun, 444 F.3d 1196,
1200 (9th Cir. 2006); United States v. Baker, 432 F.3d 1189, 1254 n.68 (11th Cir.
2005); United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005); United States v.
Brown, 430 F.3d 942, 944 (8th Cir. 2005); United States v. Roche, 415 F.3d 614,
618 (7th Cir. 2005); United States v. M artinez, 413 F.3d 239, 243 (2d Cir. 2005).
III. C ON CLU SIO N
Accordingly, we AFFIRM M r. Bustamante’s sentence.
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