[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 15, 2007
No. 06-15163 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60192-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD MELVIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 15, 2007)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
This appeal is the third time this case has been before us. Edward Melvin
appeals his 100-month sentence imposed on remand for distribution and possession
with intent to distribute cocaine base within 1,000 feet of a playground. At the
most recent resentencing hearing, the district court neither violated Melvin’s
constitutional right to confrontation by admitting lab reports, nor afforded
dispositive weight to the sentencing guidelines. Accordingly, for the reasons set
out below, we AFFIRM.
I. BACKGROUND
A federal grand jury indicted Melvin on three counts of distribution and
possession with intent to distribute cocaine base within 1,000 feet of a playground,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860. Melvin pled guilty
to all three counts.
According to the presentence investigation report (“PSI”), the Hallandale
Beach Police Department, in conjunction with the Drug Enforcement Agency
(“DEA”), executed three controlled purchases of cocaine base from Melvin. The
probation officer assigned Melvin a base offense level of 28, pursuant to U.S.S.G.
§ 2D1.2(a)(1), because the offense involved more than 5 grams, but less than 20
grams, of cocaine base within a protected location. Melvin received a three-level
reduction, pursuant to U.S.S.G. §§ 3E1.1(a) and (b), because he accepted
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responsibility and pled guilty in a timely manner. Accordingly, Melvin’s total
offense level was 25. Melvin’s criminal history category was V. Based on the
total offense level of 25 and the criminal history category of V, Melvin’s
recommended sentencing range was 100 to 125 months of imprisonment.
Melvin raised several objections to the PSI, including that he had not pled
guilty to, nor had the indictment alleged, a specific drug quantity as reported in the
PSI. The district court overruled Melvin’s objections and sentenced him to 100
months of imprisonment. Melvin appealed his sentence, and we held that: (1) the
district court constitutionally erred by enhancing Melvin’s sentence, under a
mandatory guidelines scheme, based on facts neither included in the indictment nor
admitted by him; (2) the district court’s treatment of the guidelines as mandatory
constituted statutory error; and (3) because it was unclear what sentence the district
court would have imposed under an advisory system, the government failed to
meet its burden of showing that the error was harmless. Accordingly, we vacated
and remanded Melvin’s sentence “for resentencing under an advisory guidelines
scheme.” United States v. Melvin, 152 Fed. App’x 792, 795 (11th Cir. 2005).
At resentencing, Melvin reiterated his contention that his base offense level
should be 12, the lowest offense level for an offense involving cocaine base,
because the drug quantity proffered by the government was neither admitted to by
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Melvin nor proven to a jury. The government responded that the district court
could determine the drug quantity by a preponderance of the evidence under an
advisory guidelines scheme. Melvin argued that lab reports would be insufficient
to establish the drug quantity because he would object to the amount. He also
reminded the district court that it had indicated at the initial sentencing hearing that
Melvin’s guideline range was too high. The district court then stated:
I believe last summer, at least for me, we were all trying to navigate
the kind of rough waters of Booker, Blakely, and Reese. I believe,
and there are certain of these resentences that I have done and the
sentences remain the same. But in this case I believe there are some
adjustments that need to be made given the way that the indictment in
this case was written.
R4 at 7. The district court then concluded that the base offense level was 12, the
criminal history category was V, and the resulting guidelines range was 27 to 33
months of imprisonment. Prior to imposing the sentence, the district court noted
that “this defendant deserves an incarcerated sentence. With a criminal history of
five, he hasn’t learned his lesson. . . . your client is no babe in the woods, Mr.
Lautenbach.” Id. at 8. The district court sentenced Melvin to 33 months of
imprisonment. The government appealed Melvin’s sentence.
We vacated and remanded for resentencing. We held that the district court
erred when it concluded that “it could not calculate the guideline range by using a
drug quantity neither included in the indictment nor admitted to by Melvin.”
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United States v. Melvin, 190 Fed. App’x 865, 869 (11th Cir. 2006). We held that
the district court had an obligation “to determine the drug quantity under a
preponderance of the evidence standard.” Id.
At the third sentencing hearing, the district court began by explicitly
referring to the guidelines as advisory. The government offered four DEA lab
reports that indicated that Melvin’s drug transactions involved a total of 5.63 grams
of cocaine base. Relying on United States v. Frazier, 26 F.3d 110 (11th Cir. 1994),
Melvin objected to the lab reports. He argued that hearsay was not automatically
admissible in a sentencing hearing without a court-conducted balancing test to
determine the government’s reason for not presenting a witness.
The government called Carlos Diaz, a DEA forensic chemist. Diaz
explained his credentials and the process used by the DEA to weigh controlled
substances. He personally conducted two of the lab reports before the district
court. He described the testing procedures, and he testified that the amounts
documented in the reports were accurate. In addition, he testified as to the
conclusions reached in the two lab reports that he did not personally perform.
Melvin again objected, and the district court overruled the hearsay objections. On
cross-examination, Diaz acknowledged that he had not personally conducted, nor
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observed, two of the tests. He reviewed those lab reports, and he stated that the
correct procedures were followed.
Melvin argued that the lab reports not conducted by Diaz should not be
considered because the district court had failed to follow Frazier, resulting in the
admission of hearsay and the violation of his due process rights. He asserted that
the district court should only take into account 1.7 grams, which is what the
government was able to prove. The government contended that: (1) it had to prove
the drug quantity by a preponderance of the evidence, and hearsay was admissible
in sentencing proceedings; and, (2) Diaz adequately explained the DEA’s standard
procedures. Melvin argued that the analyst who performed the contested tests was
available, and he should have been presented to the district court.
The district court opined that it could use lab reports if it found the reports
reliable. Accordingly, the district court found that the government had proven by a
preponderance of the evidence that Melvin was accountable for 5.63 grams of
cocaine base. Melvin’s total offense level was 25, his criminal history category
was V, and his sentencing range was 100 to 125 months of imprisonment. The
district court began to impose its sentence, stating, “[h]aving re-reviewed the pre-
sentence report, as well as the factors in 3553(c),”1 when Melvin requested an
1
The factors to be reviewed in imposing a sentence are found at 18 U.S.C. § 3553(a). The
most plausible explanation is that the district court accidentally cited § 3553(c), as it did reference
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opportunity to inform the court of some additional facts. R5 at 29. He claimed to
have “turned over the proverbial new leaf,” citing his clean disciplinary record in
prison and his successful completion of numerous “programs.” Id. at 29-30.
Melvin personally addressed the district court, stating that he had “been walking
with God” and was a changed man. Id. at 31. The district court sentenced him to
100 months of imprisonment and a supervised release term of 6 years. Melvin
reiterated his due process objections.
II. DISCUSSION
On appeal, Melvin argues that the 67-month increase in his sentence
indicates that the district court placed “undue weight” on the guidelines, thereby
violating United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). During the
first resentencing hearing, the district court stated that Melvin “deserved” a 33-
month sentence, R4 at 8, and, thus, Melvin contends that the only explanation for
the increased prison term is that the court believed it had to impose a sentence
within the guidelines range. He asserts that the guidelines were given “dispositive
weight” and had a “dispositive effect” on his sentence in violation of Booker.
Appellant’s Br. at 5.
reviewing “the factors.” See R5 at 29.
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“[A] sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006). “A sentence may be unreasonable if it is the product of a procedure that
does not follow Booker’s requirements, regardless of the actual sentence.” Id.
Normally, we review such legal issues concerning the guidelines de novo. Id. at
1183 (citation omitted). Where the Booker objection is not raised before the
district court, however, we review for plain error. United States v. Shelton, 400
F.3d 1325, 1328 (11th Cir. 2005) (citation omitted). “An appellate court may not
correct an error the defendant failed to raise in the district court unless there is: (1)
error, (2) that is plain, and (3) that affects substantial rights.” Id. at 1328-29
(citation and internal quotation omitted). “If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 1329 (citation and internal quotation omitted).
In Booker, the Supreme Court (1) held that sentence enhancements based
solely on judicial fact-finding pursuant to the mandatory Federal Sentencing
Guidelines violated the Sixth Amendment, and (2) excised the provisions of the
Sentencing Reform Act that made the guidelines mandatory - 18 U.S.C.
§§ 3553(b)(1) and 3742(e) - thereby effectively rendering the Sentencing
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Guidelines advisory only. 543 U.S. at 232-35, 258-59, 125 S.Ct. at 749-51, 764.
We have explained that there are two types of Booker error: (1) Sixth Amendment
error based upon sentencing enhancements under a binding guidelines system; and
(2) error based upon sentencing under a mandatory guidelines system. Shelton,
400 F.3d at 1329-31.
“[A] district court may determine, on a case-by-case basis, the weight to give
the Guidelines, so long as that determination is made with reference to the
remaining section 3553(a) factors that the court must also consider in calculating
the defendant’s sentence.” Hunt, 459 F.3d at 1185. “[N]othing in Booker or
elsewhere requires the district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). We have
further noted that a district court’s explicit acknowledgment that it had considered
the defendant’s arguments and the factors set out in § 3553(a) would alone be
sufficient. Id. at 1330. In determining if the district court has adequately
considered the defendant’s arguments and the § 3553(a) factors, we can look to the
district court’s statements over the entire sentencing hearing. See United States v.
Williams, 435 F.3d 1350, 1355 (11th Cir. 2006) (per curiam).
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Here, whether reviewing under a plain error or de novo standard of review,
the district court’s imposition of sentence was not procedurally unreasonable.
Melvin’s appeal is predicated upon his argument that the 67-month difference in
his sentence between the first resentencing hearing and the second resentencing
hearing can only be explained by the district court giving undue or dispositive
weight to the guidelines. The district court, however, stated that it considered the §
3553 factors, and it granted Melvin the opportunity to present evidence on why he
should receive a sentence below the guidelines range. See Hunt, 459 F.3d at 1185.
In addition, the district court began the second resentencing hearing by explicitly
referring to the guidelines as advisory. Melvin’s argument regarding the district
court’s remark that he “deserved” a 33-month sentence is misleading. The district
court observed that he deserved an incarcerated sentence, and its 33-month
sentence was imposed under an improperly calculated guidelines range. The
district court’s sentence was not procedurally unreasonable as the court clearly
understood it was sentencing under an advisory guidelines scheme and it
considered the § 3553 factors. See Scott, 426 F.3d at 1330. Melvin offers no
argument as to the substantive reasonableness of the 100-month sentence.
Accordingly, there was no procedural error in the district court’s imposition of
sentence, and it did not treat the guidelines as dispositive or mandatory.
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Melvin argues that the district court erred in relying on lab reports to
establish the drug quantity attributable to him. Melvin argues that the district
court’s decision to credit two reports without hearing testimony from the lab
analyst who prepared the reports deprived him of his right to confront the analyst.
He contends that the government could not satisfy a preponderance of the evidence
standard because the reports were not authenticated or corroborated. He argues
that the technician’s absence deprived him of his right to confrontation.
We review constitutional challenges to a sentence de novo. United States v.
Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005) (per curiam) (citation omitted),
cert. denied, 126 S.Ct. 1604 (2006). “[R]eliable hearsay can be considered during
sentencing.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (per
curiam) (citations omitted). The district court can rely on such evidence “as long
as the evidence has sufficient indicia of reliability, the court makes explicit
findings of fact as to credibility, and the defendant has an opportunity to rebut the
evidence.” Id. (citation and internal quotation omitted). In addition, we have
noted that the Supreme’s Court’s holding in Crawford v. Washington, 541 U.S. 36,
68, 124 S.Ct. 1354, 1374 (2004) (holding that testimonial hearsay cannot be
introduced at trial unless the declarant was unavailable and the defendant has had a
prior opportunity to cross-examine the declarant), did not address the use of
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hearsay during sentencing proceedings, meaning that courts could still base
sentencing determinations on reliable hearsay. United States v. Baker, 432 F.3d
1190, 1254 n.68 (11th Cir. 2005), cert. petition filed, No. 06-11248 (Aug. 24,
2006). The right to confrontation is a trial right and not a sentencing right.
Cantellano, 430 F.3d at 1146.
In Frazier, we held that minimal due process requirements, such as the right
to confront adverse witnesses, are applicable to revocation proceedings. 26 F.3d at
114. In the context of supervised release revocation proceedings, district courts
must “balance the defendant’s right to confront adverse witnesses against the
grounds asserted by the government for denying confrontation.” Id. (citations
omitted). If the district court admits hearsay, then it must be reliable. Id. (citation
omitted).
Melvin’s argument is precluded by our precedent. He frames the argument
as a violation of his confrontation rights, claiming that the district court failed to
balance his confrontation rights with the reasons that the government denied
confrontation. We have specifically held, however, that the right to confrontation
is not a sentencing right. Castellano, 430 F.3d at 1146. His reliance upon Frazier
for the argument that his confrontation rights were violated is misplaced because
that case dealt with revocation proceedings. It is worth noting, even though
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Melvin does not appeal on these grounds, that the district court credited Diaz’s
testimony regarding the lab reports and allowed Melvin to challenge the reports.
Thus, a hearsay challenge fails as well. See Zlatogur, 271 F.3d at 1031.
III. CONCLUSION
Melvin challenges his sentence upon two grounds: (1) the sentencing court
afforded the guidelines too much weight in violation of Booker; and, (2) the
sentencing court erred in relying upon certain laboratory reports to establish doing
quantity. For the reasons set out above we find no reversible error. Accordingly,
we AFFIRM.
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