[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15565 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 1, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 08-00132-CR-T-30-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR FERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 1, 2009)
Before MARCUS, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Oscar Fernandez appeals his 87-month sentence for conspiracy and
possession with intent to distribute over 500 grams of cocaine, in violation of 21
U.S.C. §§ 841 and 846. The district court found that Fernandez was the
leader/organizer of his conspiracy, and, as a result, enhanced his sentence by two
levels and denied him a safety valve reduction. On appeal, Fernandez argues that
in imposing the leader/organizer enhancement, the district court erred in relying
solely on the facts in the pre-sentence investigation report (“PSI”), and violated his
Fifth Amendment Due Process Clause right and Sixth Amendment Confrontation
Clause right. After careful review, we affirm.
If a sentencing issue is raised for the first time on appeal, we will review that
issue only for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th
Cir. 2000). Under plain error review, there must be (1) an error, (2) that is plain,
and (3) that affects substantial rights. Id. When these three factors are met, we
may then exercise our discretion and correct the error if it seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. United States v.
Olano, 507 U.S. 725, 732 (1993). Review for plain error requires an error to be
clear or obvious. United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007). If
a defendant fails to object to facts that are contained in the PSI, he is deemed to
have admitted those facts. United States v. Bennett, 472 F.3d 825, 833-34 (11th
Cir. 2006).
We have held that it is not plain error for a district court to consider reliable
hearsay statements during sentencing. United States v. Chau, 426 F.3d 1318,
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1322-23 (11th Cir. 2005). We have also specifically stated that the Sixth
Amendment’s Confrontation Clause right is applicable solely to trials and “does
not apply to sentencing.” United States v. Cantellano, 430 F.3d 1142, 1146 (11th
Cir. 2005). With regard to the Due Process Clause, we have held that a
defendant’s due process rights are not violated “where, at the time the defendant
committed the offense, the United States Code and the guidelines advised the
defendant of the statutory maximum sentence and that a judge would engage in
fact-finding to determine his sentence and could impose up to the statutory
maximum sentence.” United States v. Martinez, 434 F.3d 1318, 1323 (11th
Cir. 2006) (quoting United States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.
2005)).
At the sentencing hearing, Fernandez failed to object to the factual
statements in the PSI, and, therefore, admitted those factual statements as true.
Bennett, 472 F.3d at 833-34. Because Fernandez admitted the truth of those
factual statements, the statements cannot be considered unreliable, and it was not
plain error for the district court to consider them at sentencing. See Chau, 426 F.3d
at 1322-23. Fernandez’s arguments to the contrary and his reliance on the
Confrontation Clause are misplaced, as those arguments are foreclosed by
precedent. See id.; Cantellano, 430 F.3d at 1146.
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Turning to Fernandez’s due process claims, at the time that he committed the
instant offenses, 21 U.S.C. § 841(b)(1)(B)(ii) provided that he would be facing a
statutory term of imprisonment ranging from five to forty years. The pertinent
statutes also provided that a judge would engage in factfinding, using the PSI and
the Sentencing Guidelines to determine his sentence, which could be as high as the
statutory maximum sentence. See 18 U.S.C. §§ 3552, 3553; Martinez, 434 F.3d at
1323; Duncan, 400 F.3d at 1307. Therefore, Fernandez’s due process rights were
not violated, and his arguments to the contrary are foreclosed by precedent. See
Martinez, 434 F.3d at 1323. Accordingly, we affirm the district court’s decision.
AFFIRMED.
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