[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 5, 2007
No. 07-12305 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00049-CR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT SAMUEL SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 5, 2007)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Robert Samuel Smith appeals his twenty-one month prison sentence
imposed by the district court after he pleaded guilty to possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). At the sentence hearing, the
district court enhanced Smith’s sentence based on hearsay evidence that the
firearm Smith possessed was stolen. Smith contends that the district court’s use of
the hearsay evidence to enhance his sentence violated his rights under the
Confrontation Clause of the Sixth Amendment and that the district court erred in
not making specific findings that the hearsay testimony was reliable.
As to the Confrontation Clause issue, Smith argues that the district court’s
use of hearsay testimony to enhance his sentence deprived him of the right to
confront witnesses against him. He urges us to apply the holding of Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), to sentence hearings. We
review de novo the district court’s rulings as to the scope of a criminal defendant’s
rights under the Confrontation Clause. United States v. Cantellano, 430 F.3d 1142,
1144 (11th Cir. 2005), cert. denied, 547 U.S. 1034 (2006).
In Cantellano, we addressed the question of whether the protections of the
Confrontation Clause, as interpreted by Crawford, applied in non-capital sentence
proceedings, and concluded that it did not. 430 F.3d at 1146 (“The right to
confrontation is not a sentencing right.”). Accordingly, the district court did not
violate Smith’s right to confront witnesses under the Confrontation Clause when it
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relied on hearsay evidence to enhance his sentence.
Smith also contends that the district court erred in making no explicit finding
that the hearsay evidence was credible and reliable. Here, the absence of specific
credibility findings by the district court does not require reversal. As we have
explained elsewhere, “[w]hile it may be advisable and in some instances necessary
for a district court to make distinct findings regarding the reliability of hearsay
statements used at sentencing, the absence of such findings does not necessarily
require reversal or remand where the reliability of the statements is apparent from
the record.” United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000). We
have required specific factual findings as to credibility in situations where
sufficient indicia of reliability are lacking, such as where the district court relies on
contested hearsay statements made by a non-testifying co-conspirator, United
States v. Lee, 68 F.3d 1267, 1275–76 (11th Cir. 1995); United States v. Query, 928
F.2d 383, 385–85 (11th Cir. 1991), or contested statements made by a five-year-
old child to an investigator, United States v. Anderton, 136 F.3d 747 (11th Cir.
1998).
This case, however, does not present a contested issue of reliability. The
hearsay evidence here consisted of testimony from an Alcohol, Tobacco, Firearms
and Explosives agent about an investigation in which she participated. She
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testified that the firearm was reported stolen and that the ATF had determined
through its investigation that the firearm recovered from Smith matched the serial
number of the stolen firearm. The agent’s testimony was consistent with the
factual statements in the PSR.
When asked by the district court at the sentence hearing whether he objected
to the factual accuracy of the pre-sentence investigation report, Smith simply said
“No, sir.” Moreover, Smith presented no evidence to contradict the hearsay
testimony of the ATF agent. Accordingly, because there is no issue as to the
reliability of the hearsay evidence, we conclude that the district court did not err in
failing to make specific findings as to the credibility of that evidence.
AFFIRMED.
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