United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2001 Decided April 24, 2001
No. 00-3057
In re: Sealed Case
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00196-01)
Gregory L. Poe, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.
Marc O. Litt, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Wilma A. Lewis, U.S.
Attorney, John R. Fisher, Roy W. McLeese, III, and Mary T.
O'Connor, Assistant U.S. Attorneys.
Before: Williams, Ginsburg and Sentelle, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Appellant pleaded guilty to one
count of unlawful possession of a firearm in violation of 18
U.S.C. s 922(g)(1) and one count of unlawful possession of
cocaine in violation of 33 D.C. Code s 33-541. The presen-
tence investigation report found that appellant had threat-
ened to shoot someone with the firearm, a separate felony
that under s 2K2.1(b)(5) of the United States Sentencing
Guidelines calls for a 4-level enhancement of the sentence for
gun possession. Appellant objected, and the district court
took evidence, including some hearsay testimony. On finding
by a preponderance of the evidence that appellant had indeed
made such a threat, the district court applied the enhance-
ment and sentenced appellant accordingly.
Appellant challenges the court's reliance on the hearsay.
He also objects to the use of the preponderance standard,
contending that the Supreme Court's decision in Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), requires the
government to prove the gun threat beyond a reasonable
doubt. (He makes no claim of entitlement to jury trial on the
gun threat.) Neither of appellant's claims prevails. We
address the Apprendi theory first.
* * *
Apprendi had pleaded guilty to a gun possession charge
carrying a sentence of 5-to-10 years. At sentencing, the trial
court found by a preponderance that he had committed the
crime with a racially biased purpose, a finding that under
New Jersey law allowed a 10-to-20 year sentence for the
underlying crime. The court imposed a 12-year sentence.
In vacating the sentence, the Supreme Court held that any
fact (other than a prior conviction) "that increases the penalty
for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt." Apprendi, 120 S. Ct. at 2362-63 (emphasis added).
In the present case, appellant's sentence, with the enhance-
ment, was 48 months, far less than the 10-year statutory
maximum for the gun possession charge. 18 U.S.C.
s 924(a)(2). Thus appellant can win on his Apprendi claim
only if Apprendi also applies to a Guidelines enhancement
that results in a sentence within the statutory range. Be-
cause appellant failed to raise this issue at sentencing, we
review for plain error, United States v. Foster, 988 F.2d 206,
209 (D.C. Cir. 1993); in fact there is no error at all.
Clearly Apprendi does not articulate a rule that takes the
step proposed by appellant. In addition, the Apprendi Court
specifically distinguished, and found permissible, the practice
of authorizing "judges to exercise discretion--taking into
consideration various factors relating both to offense and
offender--in imposing a judgment within the range pre-
scribed by statute." 120 S. Ct. at 2358 (citing Williams v.
New York, 337 U.S. 241, 246 (1949)). See also id. at 2366 n.21
(stating that the Court took no position on the effect of the
decision on the Guidelines, but quoting the observation in
Edwards v. United States, 523 U.S. 511, 515 (1998), that
"petitioners' statutory and constitutional claims would make a
difference if it were possible to argue, say, that the sentences
imposed exceeded the maximum that the statutes permit.").
The opinion stressed that the Court had "often noted" that
judges had exercised this discretion "within statutory limits."
Id. at 2358. In fact, the Court recently approved enhance-
ments based on acquitted conduct when supported by a
preponderance of the evidence. See United States v. Watts,
519 U.S. 148, 157 (1997). Given this traditional latitude, and
the Apprendi Court's explicit endorsement of the tradition, it
is hard to see how the Court could have intended to mandate
the heightened standard for application of the Guidelines'
enhancement instructions when the resulting sentence re-
mains within the statutory maximum. Reading the Apprendi
rule to avoid such a result is consistent with the Court's
statement that the case addressed a "narrow issue." Appren-
di, 120 S. Ct. at 2354.
Appellant seeks support in the fact that the Court has
granted certiorari, vacated, and remanded ("GVR'd") a Guide-
lines case for further consideration in light of Apprendi. See
Clinton v. United States, 121 S. Ct. 296 (2000), remanding
United States v. Reliford, 210 F.3d 285 (5th Cir. 2000). At
best a GVR order could add little to appellant's case. While
it may indicate "a reasonable probability that the decision
below rests upon a premise that the lower court would reject
if given the opportunity for further consideration," Lawrence
v. Chater, 516 U.S. 163, 167 (1996), it does "not amount to a
final determination on the merits," Henry v. City of Rock
Hill, 376 U.S. 776, 777 (1964). But appellant's attempted
inference is even weaker here. The GVR'd case involved not
only Guidelines enhancements but also the application of a
statutory progression of minimum and maximum sentences
under 21 U.S.C. s 841 (providing for increasing penalties for
different quantities and types of drugs). Facts that trigger
the higher statutory maxima provided in s 841 are clearly
subject to Apprendi, as we found in United States v. Fields,
242 F.3d 393 (D.C. Cir. 2001). The Solicitor General sup-
ported a grant of certiorari in Clinton only for the statutory
penalty issues, but the Court issued the GVR order without
making the distinction. App. Br. at 22-23. As weak as
inferences from a GVR may be, an inference from the Court's
failure to sever some issues from the remand is feebler yet.
We give it no weight.
The Apprendi dissenters, to be sure, attacked the line
drawn by the majority as "meaningless formalism," 120 S. Ct.
at 2388-90, and appellant argues in essence that their reading
reveals that the logic of Apprendi will ultimately compel the
Court to apply the case to Guidelines enhancements. App.
Br. at 21-22. The Apprendi dissent suggested that the
majority's stated rule would allow a legislature to set astro-
nomic statutory ceilings for crimes, and then direct the courts
to make adjustments in accordance with facts determined
solely by the judge. 120 S. Ct. at 2389. But the majority
responded that "structural democratic constraints exist to
discourage legislatures from enacting penal statutes that
expose every defendant ... to a maximum sentence exceed-
ing that which is, in the legislature's judgment, generally
proportional to the crime." Id. at 2363 n.16. It is clearly not
for us to disregard a conceptual line that the Court majority
has not only stated but also stoutly defended against a
dissenting challenge.
We therefore join all of our sister circuits that have ad-
dressed the issue in declining to extend Apprendi beyond its
stated coverage. See United States v. Caba, 241 F.3d 98, 101
(1st Cir. 2001); United States v. Garcia, 240 F.3d 180, 184 (2d
Cir. 2001); United States v. Williams, 235 F.3d 858, 862-63
(3d Cir. 2000); United States v. Kinter, 235 F.3d 192, 198-201
(4th Cir. 2000); United States v. Keith, 230 F.3d 784, 786-87
(5th Cir. 2000); United States v. Munoz, 233 F.3d 410, 413-14
(6th Cir. 2000); Hernandez v. United States, 226 F.3d 839,
841 (7th Cir. 2000); United States v. Aguayo-Delgado, 220
F.3d 926, 933-34 (8th Cir. 2000); United States v.
Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir. 2000);
United States v. Heckard, 238 F.3d 1222, 1235-36 (10th Cir.
2001); United States v. Nealy, 232 F.3d 825, 829 (11th Cir.
2000).
* * *
The Sentencing Guidelines provide that a sentencing judge
may use relevant information to resolve a dispute over a
factor without regard to admissibility at trial, "provided that
the information has sufficient indicia of reliability to support
its probable accuracy." U.S.S.G. s 6A1.3 (2000). The evi-
dence supporting the finding of a gun threat was clearly
hearsay that would not have been admissible at trial. Officer
Spalding of the Metropolitan Police Department gave testi-
mony that included reports of statements made to him by the
complainant and a friend of hers, and (double hearsay) state-
ments made by the complainant to another police officer
(Sergeant White) and relayed to Spalding. Appellant asserts
that the crediting of hearsay testimony delivered by Officer
Spalding violates both s 6A1.3 and appellant's due process
rights under United States v. Tucker, 404 U.S. 443, 447
(1972), which holds that a sentence founded on "misinforma-
tion of constitutional magnitude" may not be sustained. We
have recently held that use of hearsay at sentencing does not
per se violate a defendant's rights. See United States v.
Drew, 200 F.3d 871, 879 (D.C. Cir. 2000). As we cannot
imagine how hearsay with "sufficient indicia of reliability to
support its probable accuracy" could violate Tucker's due
process standard, our analyses of the due process and Guide-
lines arguments merge for the purposes of this appeal.
Appellant argues that we should review the reliability
determination de novo. In support he cites Ornelas v. United
States, 517 U.S. 690, 697 (1996), prescribing such review for
district court findings of reasonable suspicion or probable
cause, and the plurality opinion in Lilly v. Virginia, 527 U.S.
116, 136 (1999), requiring de novo review to resolve whether
hearsay received in a criminal trial had the "particularized
guarantees of trustworthiness" that are required under the
Confrontation Clause for hearsay not meeting any recognized
exception, see Ohio v. Roberts, 448 U.S. 56, 66 (1980). The
government argues for an abuse of discretion standard, on
the ground that the issue is basically an evidentiary ruling in
a phase of the proceeding where the judge exercises broad
discretion. We need not decide this dispute, because even
under de novo review we find that the hearsay testimony has
sufficient indicia of reliability.
Spalding testified that he responded to a radio run for a
man with a gun at an apartment in Southeast Washington.
Spalding went to the apartment and found appellant and his
sister. Appellant "appeared distraught." Spalding asked if
"there was a weapon in this apartment that needs to be
removed," and appellant directed him to the back bedroom
where another officer, White, found a 12-gauge shotgun. See
Transcript of Sentencing, May 9, 2000 ("Tr.") at 14-16. After
the gun was secured, Spalding interviewed those present in
the apartment while White interviewed people on the street,
including the complainant. See id. at 16-17. Spalding con-
ducted follow-up interviews with the complainant and, at her
suggestion, a friend of hers who was also present during the
incident but who was not interviewed at the time. See id. at
20. The friend's story was consistent with the complainant's
in all relevant respects. At the sentencing hearing Spalding
offered the statements made to him and to White.
It appears agreed that appellant was acquainted with the
complainant and that she took offense when he made a lewd
comment about her from the apartment window as she passed
by on the street. It is further agreed that appellant went
down to the front of the building to intercept her, and an
argument ensued. Here the agreement ends. According to
the complainant's version as reported by Spalding, she made
some (possibly threatening) reference to her boyfriend, and
appellant responded that "he would take care of her, or he
would take care of them." Id. at 18. Appellant retreated
into the building, while complainant remained at the locked
front door to the building. See id. Appellant then returned
carrying something in his right hand. See id. When com-
plainant recognized the item as a gun, she began to flee but
then changed her mind. See id. at 19. As she returned
toward the building, her friend stepped between her and the
door. See id. at 19-20. Appellant reportedly told complain-
ant's friend "to move out of the way, because he did not want
to shoot her." Id. at 20, 21-22. Complainant understood
herself to be the intended target. See id. at 20.
To establish reliability the government notes that complain-
ant presented her version of the facts on the night of the
incident, maintained it consistently in more than one later
interview, and testified to it before the grand jury under oath.
(The grand jury testimony was not admitted into evidence but
government counsel proffered that she had read it and that it
was consistent with the accounts by Spalding except as to the
exact words of the appellant's threat. Gov't Br. at 20-21
n.15.) See United States v. Williams, 10 F.3d 910, 914-15
(1st Cir. 1993) (crediting hearsay declarant who had previous-
ly presented story under oath and therefore subjected to
perjury); United States v. Corvin, 998 F.2d 1377, 1386 (7th
Cir. 1993) (crediting hearsay based in part on fact that
declarant gave statement to police at the scene "without
opportunity for reflection" and maintained a consistent ver-
sion).
Appellant tries to turn the complainant's self-consistency
around, saying that she had an "obvious incentive to hold
fast" once she had told her story. See App. Br. at 25.
Perhaps so, but self-consistency, in accounts given virtually in
the heat of the event and later with a clear exposure to
perjury, must still count as a plus. Appellant further argues
that complainant's self-corroboration is insufficient because
her grand jury testimony differed from the earlier interviews.
But all we know is that there was a minor difference in her
report of the wording of the threat. This alone is not enough
to undermine credibility. Finally, appellant notes that com-
plainant failed in the first instance to reveal a past sexual
relationship between them that might have created bias. But
the testimony of co-conspirators and informers is often credit-
ed if other indicia of reliability are present, despite the fact
that they may be perceived as interested parties. See United
States v. Golden, 17 F.3d 735, 736 (5th Cir. 1994) ("This court
has previously concluded that information provided by an
'interested adverse witness' was sufficiently reliable."); Unit-
ed States v. Wise, 976 F.2d 393, 403 (8th Cir. 1992) ("[A] co-
conspirator's prior inconsistent statement, brought out during
his testimony at the sentencing hearing, was sufficiently
reliable, when considered along with the other corroborating
circumstances present.") (citing United States v. Sciarrino,
884 F.2d 95, 97 (3rd Cir. 1989)).
The government points to other indicia of reliability besides
self-consistency. First, appellant's own sister, testifying on
his behalf, gave testimony consistent with the complainant's
account at least up to the point of appellant's retreat into the
building. She also acknowledged, on listening to a tape of a
911 call placed from the apartment, that appellant can be
heard screaming, "[W]here is the gun?", that he was "pretty
angry at this point," and that another woman at the scene
was repeatedly yelling at appellant "to get into the house."
Tr. at 75-78. That appellant was actively in search of the
gun during the confrontation supports the likelihood of his
using it to make a threat, and the would-be pacifier's shouts
suggest that she at least saw a risk of violence. Finally, the
account of complainant's friend matched hers in all serious
respects. Although there is no non-hearsay witness precisely
confirming the threat, appellant has not pointed us to any
case that would demand it. And it would make little sense
for this court to make such a demand, especially in the
context of judicial sentencing, as then the hearsay would be
largely unnecessary to the court's finding.
Appellant takes several shots at the corroborating data, but
most of his critiques show no more than that each item taken
alone falls short of independently establishing the threats.
Beyond that, he observes that the district court gave no
weight to the claim by another sister of appellant, who was
not present during the incident, that complainant had been
drinking and smoking marijuana laced with PCP earlier in
the day. See id. at 53-54. But the district court noted the
testimony, expressed grave doubt as to its credibility, and
said that even if true it was of little relevance, as there was no
doubt of her ability to identify appellant correctly. See id. at
95-96.
Appellant also argues that the district court erred in dis-
crediting the sister who was present. The court observed
that it "was perfectly clear that her desire to protect her
brother outweighed her desire, if any, to tell the truth." Id.
at 95. The decision to disbelieve this direct witness, though
affecting the court's ultimate assessment of the hearsay, was
a garden-variety credibility issue that we could reverse only
for clear error. We find none. The sister's testimony was
jumbled and inconsistent and included retractions. Further,
Spalding testified that neither sister had been forthcoming on
the night of the incident and that both seemed committed to
consulting with each other before talking with the police. We
therefore find that the hearsay has substantial indicia of
reliability and that appellant has failed to undermine our
confidence in this assessment.
Finally, appellant claims for the first time on appeal that
s 6A1.3(b) of the Guidelines and Fed. R. Crim. P. 32(c)(1)
(which s 6A1.3(b) makes applicable to resolution of disputed
sentencing factors) required specific written findings relating
to the reliability and credibility of the hearsay declarants.
But we have long and consistently held that one who fails to
object to the absence of Rule 32(c)(1) findings waives his right
to challenge an enhancement on these grounds and that we
will uphold an enhancement supported by the record. See,
e.g., United States v. Sobin, 56 F.3d 1423, 1428 (D.C. Cir.
1995). In any event, because here we have reviewed the
issue de novo, any error would appear harmless.
The judgment of conviction and sentence are
Affirmed.