[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 16, 2006
No. 05-16252 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-80029-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY TAYLOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 16, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
A Southern District of Florida grand jury indicted Rodney Taylor, a
convicted felon, for possession of a .25 caliber semi-automatic pistol from
December 28, 2002 through February 21, 2003, (Count 1), and possession of .25
caliber ammunition (Count 2), both counts in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e). The Government thereafter filed a notice of intent to rely on the
penalty enhancement contained in 18 U.S.C. § 924(e)(1), citing three second
degree felonies: robbery convictions dated July 13, 2001, and April 2, 2002, and a
drug conviction dated July 13, 2001.
A jury found Taylor guilty as charged, and the court, after finding (on the
basis of evidence adduced at the sentencing hearing) that Taylor had murdered
Hermanth Rao on February 1, 2003 using the Count 1 pistol, sentenced Taylor to
life imprisonment on Count 1.1 After we vacated the life sentence and remanded
the case for resentencing in conformance with United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court held a new
sentencing hearing. Without objection, the court adopted the record of the
previous sentencing hearing – including its finding that Taylor had murdered Rao
on February 1, 2003 – and gave Taylor an opportunity to present additional
evidence. Then, after the evidentiary record closed, the court afforded him his
right of allocution.
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The court properly treated the Count 2 conviction as having merged into the Count 1
conviction.
2
The court sentenced Taylor to prison for life. It did so after consulting the
Guidelines, treating them as advisory, and considering the sentencing factors set
out in 18 U.S.C. § 3553(a), all as required by Booker. Taylor now appeals his
sentence.
The presentence report (“PSI”), prepared pursuant to the 2003 Guidelines
Manual, applied U.S.S.G. § 2K2.1, the guideline applicable to § 922(g) offenses.
That guideline provides that if the defendant used or possessed any firearm or
ammunition in connection with the commission or attempted commission of
another offense, and if death resulted, the court must apply “the most analogous
offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting
offense level is greater than that determined above.” U.S.S.G. § 2K2.1(c)(1)(B)
(Cross Reference). The guideline for homicide fixes the base offense level for first
degree murder at 43. See U.S.S.G. § 2A1.1(a). Taylor was an armed career
criminal, but because the offense level prescribed by § 2A1.1(a), 43, was greater
than the level prescribed for armed career criminals, the offense level remained at
43. Taylor used the Count 1 firearm in connection with a crime of violence – he
murdered Hermanth Rao on February 1, 2003 – so his criminal history increased to
category VI, pursuant to U.S.S.G. § 4B1.4(c)(2). Total offense level 43, coupled
with category VI, yielded an imprisonment range of life.
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In his brief, Taylor contends that the Due Process Clause precluded the court
from considering his murder of Rao under U.S.S.G. § 2A1.1(a) because the
indictment did not charge him with murder. The law-of-the-case doctrine
forecloses this contention. In vacating Taylor’s previous sentence, we instructed
the court to comply with Booker’s dictates. Booker instructs that the sentencing
court consult the Guidelines, and, as Taylor must concede, the district court did just
that. As a fall-back argument, Taylor says that due process precluded the court
from making its murder finding by a preponderance of the evidence. Our cases
foreclose this argument. See e,g,, United States v. Duncan, 400 F.3d 1297, 1304-
05 (11th Cir.), cert. denied, ___ U.S. ____, 126 S.Ct. 432 (2005). Taylor next
challenges the court’s use of hearsay in finding that Taylor murdered Rao, citing
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). Crawford does not
apply to hearsay evidence offered at sentencing hearings. United States v.
Castellano, 430 F.3d 1142, 1146 (11th Cir. 2005) (admission of hearsay and
documentary evidence at defendant’s sentencing hearing to prove his prior
convictions did not violate the Sixth Amendment).
Taylor’s final argument is one that he did not present to the district court;
hence, we review it for plain error. The argument is that the court improperly
increased Taylor’s criminal history category on the basis of the Rao murder. We
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find no error, much less plain error, in the court’s use of that evidence in assessing
the defendant’s potential for recidivism, i.e., the service performed by the criminal
history category.
Taylor’s sentence is
AFFIRMED.
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