United States v. Powell

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4012
SOLOMON N. POWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(3:07-cr-00324-JRS-1)

Argued: March 23, 2011

Decided: May 12, 2011

Before WILKINSON, SHEDD, and DUNCAN,
Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Shedd and Judge Duncan joined.

COUNSEL

ARGUED: Charles D. Lewis, Richmond, Virginia, for
Appellant. Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Neil H. MacBride, United States
2 UNITED STATES v. POWELL
Attorney, Alexandria, Virginia, Michael R. Gill, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.

OPINION

WILKINSON, Circuit Judge:

Solomon Powell was convicted of mail fraud, wire fraud,
and attempted destruction of evidence because of his business
of selling merchandise over the Internet and then pocketing
the money without sending along the products. At sentencing,
the district court relied on hearsay in concluding that Powell’s
scheme harmed more than ten people and caused just under
$200,000 in damage, subjecting him to an increased advisory
Guidelines sentence. He contends that because the Confronta-
tion Clause applies with full force to sentencing proceedings,
his sentence must be vacated.

We disagree. In accordance with our sister circuits, we con-
clude that the Confrontation Clause does not apply at sentenc-
ing proceedings like Powell’s. This holding respects the
traditional distinction between trial and sentencing, the sen-
tencing court’s need to consider a wide variety of evidence in
choosing an appropriate sentence, and the sentencing judge’s
ability to properly evaluate that evidence. The judgment of the
district court is therefore affirmed.

I.

Solomon Powell ran several businesses selling electronics
and other items over the Internet. Using a number of websites
he had acquired, as well as accounts he established with the
online auction service eBay and the payment transfer service
PayPal, Powell "sold" his products to customers who con-
tacted him through the websites. But despite paying the requi-
 UNITED STATES v. POWELL 3
site funds to Powell, only rarely did anything show up on
customers’ doorsteps. After largely fruitless attempts to reach
him for redress, many of Powell’s customers contacted groups
such as the Better Business Bureau. Their complaints reached
the ears of postal inspectors who began looking into Powell’s
practices, an investigation that culminated in Powell’s indict-
ment. A jury convicted Powell on five counts of wire fraud,
two counts of mail fraud, and one count of attempted destruc-
tion of evidence.

Powell’s presentence report determined that his scheme had
harmed more than fifty people and had caused damages to the
tune of over $200,000. The government arrived at these num-
bers largely by relying on information gathered by Postal
Inspector Evelyn Cross. Inspector Cross combed through
numerous complaints lodged with and filed against Powell,
the loss reports submitted by entities such as American
Express (which ended up footing the bill for many of its cus-
tomers’ attempted purchases), and Powell’s own electronic
records and correspondence. She further contacted other pos-
sible customers of Powell to determine whether they had actu-
ally sent payment to him and whether they had ever received
any merchandise or refund from him. Based on the conclu-
sions she reached, the government sought to enhance Powell’s
recommended Guidelines sentence. See U.S.S.G.
§ 2B1.1(b)(2)(B) (number of victims); § 2B1.1(b)(1)(G) (loss
caused). When combined with Powell’s criminal history, the
enhancements based on these numbers would have led to a
Guidelines range of 120 to 150 months in prison.

Powell disputed both enhancements. Because the number
of victims and amount of loss was determined not solely by
the testimony of trial witnesses subject to cross-examination,
but also by the out-of-court statements of alleged victims to
Inspector Cross, Powell contended that giving him an
enhanced sentence would violate his Confrontation Clause
rights. He requested that the sentencing court limit itself to the
eight victims who had actually testified and to the less than
4 UNITED STATES v. POWELL
$20,000 they lost, resulting in no enhancement for the number
of victims and at most a four-level loss enhancement.
See U.S.S.G. § 2B1.1(b)(2) (number of victims);
§ 2B1.1(b)(1)(A)–(C) (loss caused).

The sentencing court conducted an evidentiary hearing on
these issues. Inspector Cross testified and was cross-examined
about the methods she used to determine these numbers and
the possible shortcomings of her approach. The court, "just
purely giving Mr. Powell the benefit of the doubt," reduced
the number of victims from more than fifty to more than ten
and the intended amount of loss caused to $199,000, resulting
in a lowered Guidelines range of 84 to 105 months. After
hearing from the government, Powell’s attorney, and Powell
himself, the court sentenced Powell to concurrent sentences of
102 months on each count. He was later ordered to pay
$43,732.91 in restitution.

II.

Powell argues that the district court violated his Confronta-
tion Clause rights by relying on the out-of-court statements of
people who did not testify and were never cross-examined in
determining that he harmed more than ten victims and that he
caused just shy of $200,000 in losses. He further contends that
cross-examination is the only way to ensure that such evi-
dence is sufficiently reliable.

A.

Powell’s Confrontation Clause argument ignores the funda-
mental differences between trial and sentencing. "Tribunals
passing on the guilt of a defendant always have been hedged
in by strict evidentiary procedural limitations," Williams v.
New York, 337 U.S. 241, 246 (1949), and rightfully so:
because the criminal trial is the means by which we determine
the guilt of someone presumed innocent, we afford the defen-
dant a host of evidentiary protections designed to ensure that
 UNITED STATES v. POWELL 5
society’s affixation of wrongdoing is accurately made. The
defendant’s right to be "confronted with the witnesses against
him" is among these protections. U.S. Const. amend. VI. By
giving the accused the power to cross-examine those provid-
ing evidence against him at trial, the Confrontation Clause
affords him the "greatest legal engine ever invented for the
discovery of truth." California v. Green, 399 U.S. 149, 158
(1970) (quoting 5 J. Wigmore, Evidence § 1367 (3d ed.
1940)).

Once the accused has been properly convicted, however,
the purposes of the proceeding—and the evidentiary rules
governing it—change. Congress has instructed sentencing
judges to consider a host of fact-intensive issues when impos-
ing sentence, including the particular defendant’s background
and conduct, the need to punish and deter criminal wrongdo-
ing, and the need to eliminate unjustified sentencing dispari-
ties. See 18 U.S.C. § 3553(a). To accomplish these ends and
to realize "the principle that ‘the punishment should fit the
offender and not merely the crime,’" Pepper v. United States,
131 S. Ct. 1229, 1240 (2011) (quoting Williams, 337 U.S. at
247), the sentencing judge must have recourse to a much
broader array of information than we allow the trier of fact to
consider in determining a defendant’s guilt.

Courts have accordingly "long recognized that sentencing
judges ‘exercise a wide discretion’ in the types of evidence
they may consider when imposing sentence . . . ." Id. at 1235
(quoting Williams, 337 U.S. at 246); see, e.g., Payne v. Ten-
nessee, 501 U.S. 808, 820–21 (1991) ("Whatever the prevail-
ing sentencing philosophy, the sentencing authority has
always been free to consider a wide range of relevant mate-
rial."). This recognition is further grounded in the applicable
criminal, evidentiary, and sentencing codes. See 18 U.S.C.
§ 3661 (stating that "[n]o limitation shall be placed on the
information concerning the background, character, and con-
duct" to be considered at sentencing); Fed. R. Evid.
1101(d)(3) (exempting sentencing proceedings from the Fed-
6 UNITED STATES v. POWELL
eral Rules of Evidence); U.S.S.G. § 6A1.3(a) (allowing sen-
tencing courts to consider all relevant information regardless
of admissibility at trial provided it has "sufficient indicia of
reliability").

This widened evidentiary universe at sentencing has always
included reliable hearsay of many varieties, the Confrontation
Clause notwithstanding. Williams, for example, noted that
"most of the information now relied upon by judges to guide
them in the intelligent imposition of sentences would be
unavailable if information were restricted to that given in
open court by witnesses subject to cross-examination," and it
upheld a state sentencing scheme allowing consideration of
evidence "obtained outside the courtroom from persons whom
a defendant has not been permitted to confront or cross-
examine." Williams, 337 U.S. at 245, 250.

We too have repeatedly allowed a sentencing court to con-
sider "any relevant information before it, including uncorrob-
orated hearsay, provided that the information has sufficient
indicia of reliability to support its accuracy." United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010); see also United
States v. Fulks, 454 F.3d 410, 436 (4th Cir. 2006) (affirming
the use of reliable hearsay); United States v. Love, 134 F.3d
595, 607 (4th Cir. 1998) (same). Indeed, in United States v.
Johnson, 935 F.2d 47, 50 (4th Cir. 1991), we affirmed a sen-
tence where the defendant had no opportunity to cross-
examine probation officers about ex parte communications
between them and the sentencing court, noting that "[w]hen
a probation officer imparts information to a sentencing court
as its neutral agent, the interests underlying the confrontation
clause are not implicated."

B.

Recent Confrontation Clause decisions do not require us to
reconsider this settled distinction between trial evidence and
sentencing evidence in the hearsay context. In a line of cases
 UNITED STATES v. POWELL 7
beginning with Crawford v. Washington, 541 U.S. 36 (2004),
the Supreme Court has held that the Confrontation Clause
generally bars the use of testimonial hearsay at trial unless the
declarant is not available to testify and the defendant had a
prior opportunity to cross-examine him. See, e.g., Michigan v.
Bryant, 131 S. Ct. 1143, 1153 (2011).1 But nothing in these
cases states that the confrontation right applies at sentencing;
indeed, they suggest precisely the opposite.

Crawford, for instance, framed its inquiry as whether the
phrase "witnesses against" in the Confrontation Clause means
"those who actually testify at trial, those whose statements are
offered at trial, or something in-between." Crawford, 541 U.S.
at 42–43 (citations omitted). It declared that "[t]he Constitu-
tion prescribes a procedure for determining the reliability of
testimony in criminal trials . . . ." Id. at 67. Bryant likewise
spoke of the Confrontation Clause "bar[ring] the admission of
a statement at trial." Bryant, 131 S. Ct. at 1162. And Giles v.
California, 554 U.S. 353, 365 (2008), referred to the confron-
tation right as "essential to a fair trial."

If the Supreme Court had wished to extend confrontation
rights to sentencing, it would hardly have done so by carefully
describing those rights as protecting accused defendants dur-
ing the determination of their guilt or innocence. Moreover,
even if we thought that Crawford somehow cast doubt on Wil-
liams’s rejection of confrontation-based challenges at sentenc-
ing, it is the Court’s job, not ours, to overrule its precedents,
see Agostini v. Felton, 521 U.S. 203, 237–38 (1997), espe-
cially where all indicators suggest it still embraces the prece-
dent’s basic holding, see, e.g., Pepper, 131 S. Ct. at 1239–40
(quoting extensively from Williams in describing a sentencing
court’s broad evidentiary discretion).
1
Because the Confrontation Clause did not apply at Powell’s sentencing
proceeding, we need not parse which of the statements relied upon below
were testimonial and which were not.
8 UNITED STATES v. POWELL
So these new decisions only underscore the point that our
holding is old-hat. And in holding that the Confrontation
Clause does not apply at sentencing, we join every other fed-
eral circuit court that hears criminal appeals. See United
States v. Bras, 483 F.3d 103, 109 (D.C. Cir. 2007); United
States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007); United
States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006); United
States v. Bustamante, 454 F.3d 1200, 1202–03 (10th Cir.
2006); United States v. Littlesun, 444 F.3d 1196, 1199–1200
(9th Cir. 2006); United States v. Stone, 432 F.3d 651, 654 (6th
Cir. 2005); United States v. Brown, 430 F.3d 942, 943–44
(8th Cir. 2005); United States v. Cantellano, 430 F.3d 1142,
1146 (11th Cir. 2005); United States v. Roche, 415 F.3d 614,
618 (7th Cir. 2005); United States v. Luciano, 414 F.3d 174,
179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239,
242–44 (2d Cir. 2005).

These courts have also noted the distinction between trial
rights and sentencing proceedings, see, e.g., Cantellano, 430
F.3d at 1146, the traditional use of reliable hearsay at sentenc-
ing, see, e.g., Bras, 483 F.3d at 108–09, and the need to con-
sider such evidence in order to sentence properly, see, e.g.,
Martinez, 413 F.3d at 243–44. Even if we could, we see no
reason to depart from decades of precedent from the Supreme
Court, our own court, and our sister circuits.

C.

Although the Confrontation Clause does not apply at Pow-
ell’s sentencing, that does not mean Powell lacks all evidenti-
ary protections. Due process requires that sentencing courts
rely only on evidence with some minimal level of reliability,
see, e.g., Roche, 415 F.3d at 618, and the Guidelines them-
selves demand that the evidence used have "sufficient indicia
of reliability to support its probable accuracy," U.S.S.G.
§ 6A1.3(a). The evidence here comfortably satisfied this stan-
dard.
 UNITED STATES v. POWELL 9
Powell contends categorically that without cross-
examination evidence can never be reliable enough for use at
sentencing. Our accepted sentencing practices prove other-
wise. We task probation officers with creating a presentence
report detailing an offender’s particular history and pertinent
conduct. See 18 U.S.C. § 3552(a); Fed. R. Crim. P. 32(d). As
noted above, we then assign sentencing judges the responsi-
bility of determining a specific sentence for a unique defen-
dant’s particular crimes and free them from the ordinary rules
of evidence to make that determination. See 18 U.S.C.
§ 3553(a); id. § 3661. It would be odd indeed for us to then
automatically treat any hearsay evidence found within presen-
tence reports as forbidden because we do not trust sentencing
judges’ ability to adequately assess that evidence’s proper
weight given its potential flaws.

A categorical position that hearsay is unreliable as a matter
of due process would also run headlong into precedent. In
United States v. Terry, 916 F.2d 157, 160–61 (4th Cir. 1990),
for instance, we noted the traditional use of reliable hearsay
at sentencing and the procedural safeguards in place to protect
defendants against the use of factually incorrect evidence. We
further stated that "[a] mere objection to the finding in the
presentence report" –- reports often chock full of hearsay –-
"is not sufficient. The defendant has an affirmative duty to
make a showing that the information in the presentence report
is unreliable, and articulate the reasons why the facts con-
tained therein are untrue or inaccurate." Id. at 162. However,
if the defendant makes no such showing, the court may "adopt
the [presentence report’s] findings . . . without more specific
inquiry." Id. Given this presumption of reliability and the rou-
tine use of hearsay evidence found within presentence reports,
such evidence cannot be categorically infirm.

Nor is there anything that gives us pause about the particu-
lar evidence used in this case. Powell never seriously con-
tended that the supposed victims did not exist or had not
actually been harmed. Rather, he disputed whether those
10 UNITED STATES v. POWELL
listed could straightforwardly be identified as victims given
the government’s inability to follow up with all of those iden-
tified in the records. The district court heard Inspector Cross
testify about her construction from Powell’s and other busi-
ness records of a list of victims and losses caused, her often
successful attempts to contact those listed for further informa-
tion, and her scrupulous recordkeeping regarding those who
had never paid Powell or who had received partial compensa-
tion from him. The court also heard Powell’s counsel chal-
lenge Cross regarding her assumption that those whose names
were found in the relevant records as having purchased an
item and as having complained about not receiving it were
presumed victims despite the lack of more direct evidence, an
assumption she defended by noting the rarity of Powell pro-
viding anyone with anything.

After this detailed inquiry into the government’s evidence,
the district court gave Powell the benefit of every residual
doubt by reducing the loss caused to $199,000 and the num-
ber of victims to more than ten. Both of these figures were
more than supported by the evidence, much of which came
from Powell’s own records, and Powell has never given any
reason to believe these figures were materially inaccurate or
unreliable. Due process is fully satisfied by reliance on evi-
dence so methodically gathered and so carefully evaluated as
that here.

III.

Powell also argues that the district court failed to explain
how the sentencing factors found in 18 U.S.C. § 3553(a) led
to the sentence it imposed. Powell is correct in noting that
sentencing courts have an obligation to provide an "individu-
alized explanation" for every sentence, though they need not
"‘robotically tick through § 3553(a)’s every subsection,’ par-
ticularly when imposing a within-Guidelines sentence."
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010)
 UNITED STATES v. POWELL 11
(quoting United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006)).

However, even if the district court did not provide a suffi-
cient explanation, we need not vacate Powell’s sentence. To
preserve a challenge to this type of procedural error, the
defendant need not specifically object after the court has pro-
nounced a sentence, but he must at some point in the proceed-
ings "draw[ ] arguments from § 3553 for a sentence different
than the one ultimately imposed . . . ." Id. at 578 (emphasis
added); see also United States v. Boulware, 604 F.3d 832, 838
(4th Cir. 2010) ("[A]rguments made under § 3553(a) for a
sentence different than the one that is eventually imposed are
sufficient to preserve claims . . . ."); United States v. Thomp-
son, 595 F.3d 544, 546 (4th Cir. 2010) ("[A] defendant need
only ask for a sentence outside the range calculated by the
court prior to sentencing in order to preserve his claim for
appellate review."). If he does not do so, plain error review
applies. See Lynn, 592 F.3d at 577.

Powell did not preserve his challenge. Despite the govern-
ment’s request for a sentence "at the top of the range," his
counsel, like one of the defendants in Lynn, never requested
a different within-Guidelines sentence or a downward depar-
ture based on § 3553(a)’s factors. See id. at 580. Rather, coun-
sel simply noted Powell’s difficult relationship with his
parents as part of his request that Powell be given mental
health and social counseling. His only other requests were that
Powell be provided with educational and vocational opportu-
nities and that Powell not be fined. All of these requests were
granted.

Nor did Powell’s own statements preserve his claim. He did
ask the court to consider a number of "factors" in sentencing
him –- including his struggles as a supposed "small business
owner," the alleged failings of his lawyers, and the govern-
ment’s hypothesized trickery—but he never requested any-
thing like a low-end sentence or a departure. Oblique
12 UNITED STATES v. POWELL
references such as these do not "sufficiently alert[ ] the dis-
trict court of its responsibility to render an individualized
explanation addressing those arguments" under § 3553, id. at
578, because they are not "arguments" under § 3553 for a
lower sentence at all, see id. at 581–82 (counsel’s request for
a low-end sentence or departure based on the circumstances
of the crime preserved the claim); id. at 583–84 (counsel’s
request for a variance and arguments against the reasonable-
ness of any sentence based on career offender status preserved
the claim).

Applying the plain error standard, Powell cannot show that
the error affected his substantial rights. Powell received a
within-Guidelines sentence that we presume on appeal was
reasonable. See, e.g., Rita v. United States, 551 U.S. 338, 347
(2007); Johnson, 445 F.3d at 341-44. He received everything
his lawyer requested from the sentencing judge. See Lynn,
592 F.3d at 580 (finding no plain error where the defendant
obtained the within-Guidelines sentence his counsel
requested). And his own statements did little to help his case:
he gave scant indication that he understood the gravity of his
offenses, spent much of his time criticizing his counsel and
those investigating him, and pointed largely to the typical dif-
ficulties of imprisonment in asking to be sentenced "appropri-
ately." Simply put, Powell has not demonstrated that any lack
of explanation "had a prejudicial effect on the sentence
imposed." Id.; see also Boulware, 604 F.3d at 840 (finding a
preserved § 3553(a) explanation error harmless in part
because "the notion that having to explain its analysis further
might have changed the district court’s mind" was "simply
unrealistic" and a remand for resentencing would have been
"a pointless waste of resources").2
2
We similarly reject Powell’s substantive challenge to the length of his
sentence. He received a presumed-reasonable, within-Guidelines sentence,
and neither he nor the record leads us to conclude the district court erred,
let alone reversibly so, in sentencing him as it did.
 UNITED STATES v. POWELL 13
IV.

For these reasons, the judgment of the district court is

AFFIRMED.