[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
May 20, 2008
No. 07-13799
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 05-00498-CR-T-17MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SELESTINO SANCHEZ, SR.,
a.k.a. Don Felix,
a.k.a. Pops,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 20, 2008)
Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Defendant-Appellant Selestino Sanchez, Sr. appeals the 235-month sentence
imposed after he pled guilty to cocaine and methamphetamine drug trafficking
offenses. No reversible error has been shown; we affirm.
At sentencing, Defendant admitted generally his relevant conduct but took
exception to two factual particulars to which he had agreed at his plea colloquy:
(1) that he trafficked in methamphetamine – he claimed personal use only of this
drug; and (2) that he had cocaine dealings with confidential informant Nunez.
Defendant took issue with these particular facts only; he admitted facts sufficient
to support his guilty plea.
Once Defendant placed in issue his relevant conduct, testimony was taken
from a Special Agent who had worked the conspiracy. This testimony included
hearsay statements of a co-conspirator about Defendant’s methamphetamine
trafficking activity. The Special Agent also testified that he found information
provided by the co-conspirator to be reliable and corroborated by other evidence.
Because Defendant failed to take responsibility on these particulars, the district
court denied Defendant an adjustment for acceptance of responsibility.
Defendant first argues that his Sixth Amendment confrontation rights were
violated when the district court allowed the Special Agent to include hearsay
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statements made by Defendant’s co-conspirator in the Agent’s testimony in
support of the disputed conduct. This contention is foreclosed by our decision in
United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005). Cantellano
rejected specifically the argument raised by Defendant that Crawford v.
Washington, 124 S.Ct. 1354 (2004), should apply to make impermissible the use
of out-of-court statements at sentencing. Id. In Cantellano we said these things:
Crawford dealt with trial rights and we see no reason to extend
Crawford to sentencing proceedings. The right to confrontation is not
a sentencing right. The sentencing court did not err, under Crawford,
when it considered hearsay evidence....
Id. We are bound by the prior-precedent rule: “[t]he law of this circuit is
‘emphatic’ that only the Supreme Court or this court sitting en banc can judicially
overrule a prior panel decision.” Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.
1997). We do not – nor could we – accept Defendant’s invitation to revisit
Cantellano.* The district court committed no error – plain or otherwise – when it
admitted hearsay testimony at the sentencing hearing.
*
Defendant cites us to Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982), in support of his
argument that Crawford’s Confrontation Clause holding should apply in sentencing proceedings.
Proffitt recognized a right to cross-examination in the context of capital sentencing. Id. at 1254-55.
To the extent Defendant argues that Proffitt is a precedent prior to Cantellano and vitiates the validity
of the latter case, we disagree. Proffitt is a capital sentencing case; it intended to set out – and can
set out – no binding precedent for non-capital sentencing proceedings.
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Defendant next argues that even if the hearsay properly is considered, the
district court was clearly erroneous when it determined that Defendant should be
awarded no acceptance of responsibility adjustment. Defendant points out that
the only evidence that he did not accept responsibility was the hearsay testimony
of the Special Agent and that this testimony was insufficient to counter
Defendant’s account. We “will not set aside a district court’s determination that a
defendant is not entitled to a § 3E1.1 adjustment unless the facts in the record
clearly establish that the defendant has accepted responsibility.” United States v.
Moriarty, 429 F.3d 1012, 1022-23 (11th Cir. 2005). And the burden of establishing
entitlement to an acceptance of responsibility downward reduction rests upon the
defendant. United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005).
That Defendant pled guilty is significant evidence of acceptance of
responsibility. But “a defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.” U.S.S.G. § 3E1.1, comment.
(n.1(a)); Williams, 408 F.3d at 756. The Special Agent testified he found the
information provided by the co-conspirator to be reliable or corroborated by other
evidence, including intercepted telephone conversations between Defendant and
the co-conspirator. The district court found the Special Agent’s testimony about
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the disputed conduct to be credible; it considered Defendant’s denials to be
incredible. Defendant’s counsel acknowledged expressly that the government
would be able to prove the disputed conduct during his Rule 11 plea colloquy. On
this record, we can not say the district court clearly erred when it determined that
Defendant had not shown his entitlement to an acceptance of responsibility
adjustment. See Moriarty, 429 F.3d at 1022-23; see also Williams, 408 F.3d at
756-57.
AFFIRMED.
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