United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-11064
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALLISTUS CHINEDU ORISAKWE, also known as Hollywood,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:02-CR-93-ALL-P)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Callistus Chinedu Orisakwe appeals the sentence imposed for
his conviction on one count of possession of stolen mail, in
violation of 18 U.S.C. § 1708. He presents two claims.
First, he maintains the district court’s loss calculation
violated the Sixth Amendment rule of United States v. Booker, 543
U.S. 220 (2005): any fact other than the existence of a prior
conviction that increases a defendant’s sentence beyond the maximum
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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established by his guilty plea must either be admitted by him or
proved to the jury beyond a reasonable doubt. Orisakwe preserved
this issue by objecting under Blakely v. Washington, 542 U.S. 296
(2004); therefore, we review for harmless error, which requires the
Government to demonstrate beyond a reasonable doubt that the
district court would have imposed the same sentence under advisory
guidelines. See United States v. Pineiro, 410 F.3d 282, 284 (5th
Cir. 2005).
In the light of Booker, the loss calculation constitutes error
that was not harmless. See id. at 286. The court’s sentencing
Orisakwe to the maximum sentence within the guidelines range is
insufficient to satisfy the Government’s burden. See United States
v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006). Its contention
that the court could have imposed the same sentence likewise fails
to show it would have done so but for the Booker error.
Accordingly, we vacate and remand for resentencing.
Orisakwe also contends his Fifth and Sixth Amendment rights to
due process and to confront adverse witnesses were violated when,
in assessing Orisakwe’s guideline sentence, the district court
relied on out-of-court testimonial statements. Citing, among other
cases, United States v. Navarro, 169 F.3d 228, 236 (5th Cir.),
cert. denied, 528 U.S. 845 (1999), Orisakwe acknowledges this court
has “held that a defendant’s right to confrontation at sentencing
is severely restricted”. Nevertheless, he suggests this precedent
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is suspect in the light of, inter alia, Crawford v. Washington, 541
U.S. 36 (2004). To the extent the issue is deemed foreclosed,
Orisakwe seeks to preserve it for further review.
“[T]here is no Confrontation Clause right at sentencing”.
Navarro, 169 F.3d at 236. Nothing in Crawford provides its holding
is applicable to sentencing proceedings. Accordingly, this
Crawford-based contention is foreclosed.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
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