UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41238
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAYMOND RAMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
October 25, 2001
Before REAVLEY, HIGGINBOTHAM and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge.
Raymond Ramirez was convicted of distributing cocaine base and
sentenced to 168 months imprisonment, a five year term of
supervised release, a fine of $5,000 and a $200 special assessment.
He now appeals that sentence. For the reasons below, we affirm the
district court’s sentence.
Pursuant to a plea agreement, Ramirez pled guilty to two
counts of distributing cocaine base, a Schedule II controlled
1
substance. The plea agreement provided that the parties were free
to argue the applicability of relevant conduct information on
Ramirez’s alleged drug trafficking following his release from the
Bureau of Prisons for his prior sentence in V-98-16. Ramirez
argues that his Sixth Amendment right to confront and cross-examine
his accusers was violated because the district court erred in
allowing the use of hearsay evidence of relevant conduct to
increase his offense level under the sentencing guidelines. “We
review drug quantity determinations, as findings of fact, for clear
error.” United States v. Medina, 161 F.3d 867, 876 (5th Cir. 1998)
(citation omitted), cert. denied, 526 U.S. 1043, 119 S.Ct. 1344,
143 L.Ed.2d 507 (1999).
At sentencing, “[t]he district court may consider any
information which has sufficient indicia of reliability to support
its probable accuracy.” United States v. Vital, 68 F.3d 114, 120
(5th Cir. 1995) (internal quotations and citations omitted). This
includes findings regarding drug quantities that do not implicate
Apprendi,1 testimony of a probation officer and even hearsay. See
generally United States v. Huskey, 137 F.3d 283, 291 (5th Cir.
1998) (citations omitted).
Notwithstanding our prior holdings, Ramirez contends that we
1
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000) (other than fact of prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt).
2
should reevaluate the admissibility of hearsay evidence at
sentencing hearings in view of the United States Supreme Court’s
decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144
L.Ed.2d 117 (1999), which found that a defendant’s right to
confrontation during a trial was violated by the admission of the
untested confession of a codefendant. However, we decline to
extend the holding in Lilly to the instant case as it is factually
inapposite in that it addresses a defendant’s right to
confrontation during a trial and not a sentencing hearing. “[A]
defendant’s confrontation rights at sentencing are severely
restricted.” United States v. Rodriguez, 897 F.2d 1324, 1328 (5th
Cir. 1990), cert. denied, 498 U.S. 857, 111 S.Ct. 158, 112 L.Ed.2d
124 (1990). “In determining the relevant facts at sentencing, the
district court is not restricted to information that would be
admissible at trial.” Vital, 68 F.3d at 120. In making factual
sentencing determinations, a presentence report is considered
reliable and may be considered by the trial judge. See United
States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992) (citing
United States v. Sanders, 942 F.2d 894, 897-98 (5th Cir. 1991).
The evidence of relevant conduct contested by Ramirez and
relied upon by the district court was contained in Ramirez’s
presentence report. As Ramirez’s only challenge to the reliability
of the relevant conduct information is a claim of hearsay, we find
no error by the district court.
3
AFFIRMED.
4