United States v. Bras, Antonio

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2006 Decided April 20, 2007

No. 05-3190

UNITED STATES OF AMERICA,
APPELLEE

v.

ANTONIO C. BRAS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00051-01)

Joseph J. Aronica argued the cause and filed the briefs for
appellant.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese, III, Thomas J. Tourish, Jr., and Steven J. Durham,
Assistant U.S. Attorneys.

Before: GARLAND and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.
 2

GARLAND, Circuit Judge: Antonio C. Bras pled guilty to
conspiracy to commit bribery and highway project fraud in
violation of 18 U.S.C. § 371, an offense for which the statutory
maximum is five years in prison. He was sentenced to 37
months’ incarceration under the regime announced in United
States v. Booker, 543 U.S. 220 (2005). The validity of that
sentence is the only issue on appeal.

Bras raises four challenges to his sentence. First, he
contends that the district court sentenced him in violation of
Booker principles, because it increased his sentence based on
facts found by the court itself, using a preponderance of the
evidence standard. Second, Bras maintains that the court
violated his Sixth Amendment right to confront the witnesses
against him, by increasing his sentence based upon testimonial
evidence that was not subject to cross-examination. Third, he
argues that the court used unreliable evidence to calculate the
loss that his crime caused the government, and thereby erred in
calculating his advisory Sentencing Guidelines range. Finally,
Bras claims that his sentence was unreasonable, because the
district court failed to adequately consider the relevant statutory
sentencing factors. Finding these challenges to be without
merit, we affirm the judgment of the district court.

I

On February 5, 2003, a grand jury issued a fifteen-count
indictment against defendant Bras, charging him with
participating in a conspiracy in which Fort Meyer Construction
Corporation, through the use of bribes and false documents,
overcharged the District of Columbia Department of Public
Works (DPW) for asphalt used to pave District streets. See 18
U.S.C. §§ 371 (conspiracy to commit an offense against or to
defraud the United States), 201 (bribery of a public official),
1020 (highway project fraud). Trial commenced on December
 3

1, 2003. The evidence at trial, supplemented by the defendant’s
admissions during his mid-trial guilty plea, established the
following facts.

Fort Meyer contracted with the DPW to repair and resurface
roads in the District of Columbia. Using funds provided largely
by the Federal Highway Administration, the District paid Fort
Meyer based on the weight of asphalt it delivered, in amounts
ranging from $38 to $50 per ton. The amount of asphalt
delivered in each truckload was recorded on an “asphalt ticket,”
which a Fort Meyer employee gave to a DPW employee when
the asphalt arrived on site. At the end of each day, relying on
the asphalt tickets, a DPW inspector prepared an Inspector’s
Daily Report (IDR), which recorded the total weight of asphalt
delivered to the job site. After the data from the IDRs was
entered into a computer, the DPW prepared a voucher that
authorized payment to Fort Meyer for the asphalt and paving
work.

Bras was initially employed by Fort Meyer as an asphalt
foreman. He was promoted to asphalt superintendent in October
1996, when his superior, Keith Armentrout, could no longer
perform his day-to-day responsibilities due to health problems.
Thereafter, Bras was responsible for ensuring that Fort Meyer
delivered the proper amount of asphalt to DPW job sites.

As superintendent, Bras continued a bribery scheme that
had been initiated by Armentrout. Bras conspired with other
Fort Meyer employees, and with DPW inspectors and engineers,
to pay the DPW employees to accept false asphalt tickets
reflecting tons of asphalt that had never been delivered. The
DPW employees then prepared IDRs that included the false
weights, and the DPW paid Fort Meyer based on the resulting
calculations. At trial, five DPW employees -- inspectors David
Brown and Thomas Smith, and engineers Timothy Martin,
 4

Clarence Short, and Jonathan Gant -- testified that they took
bribes from Bras as part of this scheme.

At the close of the government’s case, the district court
dismissed eight of the fifteen counts against Bras. The
following Monday, pursuant to a written plea agreement, Bras
pled guilty to Count One of the original indictment (which had
not been dismissed). That count charged Bras with conspiring
to defraud the United States and to bribe DPW employees to
accept false tickets for never-provided asphalt, in violation of 18
U.S.C. § 371. At the subsequent plea proceeding, Bras signed
a Statement of Facts that was read into the record. The
Statement described the aforementioned bribery scheme and
listed numerous specific occasions, from July 16, 1997, to
September 24, 1997, upon which Bras gave false asphalt tickets
to DPW employees, thereby “inflating the quantity of asphalt
delivered to a job site” and “fraudulently inflating” a federal
contract. Appendix (App.) 42-43.

The final sentencing proceedings in the case took place after
the Supreme Court issued its opinion in United States v. Booker,
which excised the federal statutory provisions that made the
United States Sentencing Guidelines mandatory, and thus
rendered the Guidelines “effectively advisory.” 543 U.S. at 245-
46; see United States v. Simpson, 430 F.3d 1177, 1182 (D.C.
Cir. 2005). Looking to the Guidelines for advice, the court
began with the appropriate guideline for the offense to which
Bras pled guilty. See U.S. Sentencing Guidelines Manual §
2C1.1 (2000) [hereinafter U.S.S.G.] (offering or giving a bribe);
see also id. § 2X1.1 (conspiracy).1 This guideline begins with
a base offense level of 10, see id. § 2C1.1(a), to which the court

1
Bras was sentenced under the 2000 edition of the Guidelines.
See Gov’t Br. 24 n.23. Accordingly, the citations in this opinion are
to that edition.
 5

added two levels because Bras participated in more than one
bribe, see id. § 2C1.1(b)(1). The guideline further instructs that,
if the loss to the government exceeds $2,000, the offense level
should be increased based upon the amount of loss. See id. §
2C1.1(b)(2)(A) (referencing loss table at U.S.S.G. § 2F1.1).
After two days of evidentiary hearings, the court determined that
the loss to the government was at least $41,000, which
corresponded to a five-level increase in the offense level. See
id. § 2F1.1(b)(1)(F). The court also found that Bras was an
organizer or leader of the scheme, which added an additional
four levels. See id. § 3B1.1(a).

The resulting offense level was 21, which, in light of the
fact that Bras had no prior convictions, yielded an advisory
Guidelines range of 37 to 46 months’ incarceration. See id. ch.
5, pt. A (sentencing table). After further consideration of other
sentencing factors, the district court sentenced him to a 37-
month prison term. Bras now appeals his sentence, charging
that the court committed a variety of errors in the course of
calculating the sentence.

In Booker, the Supreme Court instructed appellate courts to
review sentencing decisions under a “‘reasonableness’
standard.” 543 U.S. at 262. It also declared that, even
“[w]ithout the ‘mandatory’ provision” that it had excised from
the Sentencing Reform Act, “the Act nonetheless requires
judges to take account of the Guidelines together with other
sentencing goals” listed in the statute. Id. at 259 (citing 18
U.S.C. § 3553(a)). A sentencing court acts unreasonably if it
commits legal error in the process of taking the Guidelines or
other factors into account, or if it fails to consider them at all.
See Simpson, 430 F.3d at 1185-87; United States v. Price, 409
F.3d 436, 442-43 (D.C. Cir. 2005). A defendant may also
challenge the length of a sentence as unreasonable, although we
have held that “a sentence within a properly calculated
 6

Guidelines range is entitled to a rebuttable presumption of
reasonableness.” United States v. Dorcely, 454 F.3d 366, 376
(D.C. Cir. 2006). With these precepts in mind, we turn to an
examination of Bras’ sentencing challenges.

II

Bras’ first contention is that the district court sentenced him
in violation of Booker principles, because it increased his
sentence based on facts found by the court, using a
preponderance of the evidence standard. According to Bras,
Booker held that, in “applying . . . the Guidelines,” any fact that
is “‘necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.’” Appellant’s Br. 11 (quoting
Booker, 543 U.S. at 244). Based only on the facts Bras admitted
in his plea, he contends that “the proper maximum authorized
sentence would be the 16 month maximum sentence allowed for
an Offense Level of 12, comprised in this case of a Base Offense
Level of 10 with a 2-level enhancement for making more than
one bribe.” Reply Br. 3. On this calculation, the resulting
sentencing range would have been 10 to 16 months, which Bras
argues should have been reduced still further by consideration
of other sentencing factors. Instead, Bras asserts, the court
“erroneously relied on additional facts the court found by a mere
preponderance” -- particularly facts regarding the amount of the
government’s loss -- “to impose an enhanced sentence of 37
months.” Id.

Bras misapprehends the meaning of Booker. As we have
previously explained, see Simpson, 430 F.3d at 1182, Booker
consisted of two separate majority opinions. In the first,
“substantive” opinion, the Supreme Court held that the Sixth
Amendment is violated when a court imposes a sentence under
 7

a set of mandatory guidelines based on its own determination of
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict . . . .”
Booker, 543 U.S. at 244. The Court emphasized, however, that
this conclusion “rests on the premise . . . that the relevant
sentencing rules are mandatory and impose binding
requirements on all sentencing judges.” Id. at 233. “If the
Guidelines as currently written could be read as merely advisory
provisions that recommended, rather than required, the selection
of particular sentences in response to differing sets of facts, their
use would not implicate the Sixth Amendment” even if it
yielded a sentence above that based on a plea or verdict alone.
Id.; see Cunningham v. California, 127 S. Ct. 856, 866 (2007);
United States v. Adewani, 467 F.3d 1340, 1341 (D.C. Cir. 2006);
Simpson, 430 F.3d at 1182.

In the second, “remedial” opinion, the Court found that the
statutory provisions making the Guidelines mandatory were
“incompatible with [Booker’s] constitutional holding” and had
to be “severed and excised.” Booker, 543 U.S. at 245. “So
modified,” the Court said, “the federal sentencing statute makes
the Guidelines effectively advisory.” Id. (citations omitted).
And so modified, the Court made clear, the Sixth Amendment’s
bar against judicial fact-finding does not apply to Guidelines
sentencing. Although judges are still required “to take account
of the Guidelines together with other sentencing goals,” without
“the provision that makes ‘the relevant sentencing rules . . .
mandatory . . . ,’ the statute falls outside [the constitutional]
requirement.” Id. at 259 (quoting id. at 233 (“substantive”
opinion)); see id. at 252; Adewani, 467 F.3d at 1341; Simpson,
430 F.3d at 1182.

Indeed, of the multiple opinions issued in Booker, only one
comes close to espousing the view urged by defendant Bras.
 8

That is the dissent to the Court’s remedial opinion, which
proposed, as a remedy, that the Guidelines remain mandatory
and the government “prove any fact that is required to increase
a defendant’s sentence under the Guidelines to a jury beyond a
reasonable doubt.” 543 U.S. at 284-85 (Stevens, J., dissenting)
(emphasis omitted). The majority, however, expressly rejected
this view. Id. at 258-59 (“remedial” opinion). Accordingly, we
do so as well.

Bras further contends that, even if “judicial fact-finding
were permissible as a basis for imposing sentencing
enhancements, . . . such fact-finding must be subject, not to a
mere preponderance standard, but to the more exacting beyond
a reasonable doubt standard.” Appellant’s Br. 16 (internal
quotation marks omitted). There is no support for this
proposition, which is contrary to the Guidelines’ instruction that
“use of a preponderance of the evidence standard is appropriate
to meet due process requirements and policy concerns in
resolving disputes regarding application of the guidelines to the
facts of a case.” U.S.S.G. § 6A1.3 cmt.

Prior to Booker, both the Supreme Court and this court had
“upheld the Guidelines’ application of the preponderance of the
evidence standard,” Dorcely, 454 F.3d at 372-73 (citing United
States v. Watts, 519 U.S. 148, 157 (1997), and United States v.
Long, 328 F.3d 655, 670-71 (D.C. Cir. 2003)). If anything,
Booker appeared to reaffirm that precedent. See 543 U.S. at 251
(“remedial” opinion) (noting that the Court “held in United
States v. Watts that a sentencing judge could rely for sentencing
purposes upon a fact that a jury had found unproved (beyond a
reasonable doubt)” (citation omitted)). Following Booker, this
court rejected the contention that a sentencing judge may not
rely on facts found merely by preponderance when a jury has
previously acquitted a defendant of the same conduct. See
Dorcely, 454 F.3d at 372-73. If a court may rely on acquitted
 9

conduct when proven by preponderance, reliance on previously
untried conduct proven under that standard is a fortiori
permissible.

We therefore reject Bras’ contention that a judge may not
make findings of fact when employing the Sentencing
Guidelines in an advisory fashion, as well as his fall-back
position that any such fact-finding must be made under a beyond
a reasonable doubt standard. Accord, e.g., United States v.
Smith, __ F.3d __, No. 06-14077, slip op. at 3 (11th Cir. Mar.
19, 2007); United States v. Hawkins, __ F.3d __, No. 05-4311,
slip op. at 4 (7th Cir. Mar. 9, 2007); United States v. Dare, 425
F.3d 634, 639-42 (9th Cir. 2005); United States v. Magallanez,
408 F.3d 672, 684-85 (10th Cir. 2005); United States v. Mares,
402 F.3d 511, 519 n.6 (5th Cir. 2005).

III

Bras’ second contention is that the district court violated his
Sixth Amendment right to confront the witnesses against him by
increasing his sentence based upon “testimonial hearsay
evidence that was not subject to cross-examination.”
Appellant’s Br. 19. In support, he cites the Supreme Court’s
decision in Crawford v. Washington, 541 U.S. 36 (2004), and re-
cites Booker for the proposition that “the protections of the Sixth
Amendment are afforded to defendants during sentencing
proceedings.” Appellant’s Br. 20 (emphasis omitted).

Long before the advent of the Sentencing Guidelines, the
Supreme Court upheld, against constitutional attack, the “age-
old practice of seeking information from out-of-court sources to
guide [a court’s] judgment toward a more enlightened and just
sentence.” Williams v. New York, 337 U.S. 241, 250-51 (1949).
The sentencing judge “is not restricted,” the Court said, “to
evidence derived from the examination and cross-examination
 10

of witnesses in open court but may . . . consider responsible
unsworn or ‘out-of-court’ information,” Williams v. Oklahoma,
358 U.S. 576, 584 (1959), and “may appropriately conduct an
inquiry broad in scope, largely unlimited either as to the kind of
information he may consider, or the source from which it may
come,” United States v. Tucker, 404 U.S. 443, 446 (1972). Nor
were the hearsay (or other) provisions of the Federal Rules of
Evidence made applicable to sentencing. See FED. R. EVID.
1101(d)(3).

In the Sentencing Reform Act of 1984, Congress followed
this tradition by recodifying an earlier statute, which provided
that “[n]o limitation shall be placed on the information
concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate
sentence.” 18 U.S.C. § 3661 (recodifying 18 U.S.C. § 3577,
without change). Following Congress’ lead, the Sentencing
Guidelines state that, “[i]n determining the relevant facts,
sentencing judges are not restricted to information that would be
admissible at trial.” U.S.S.G. § 6A1.3 cmt. Our decisions, and
those of other courts, have repeatedly concluded that the use of
hearsay in Sentencing Guidelines determinations does not
violate the Constitution. See, e.g., In re Sealed Case, 246 F.3d
696, 700 (D.C. Cir. 2001); United States v. Drew, 200 F.3d 871,
879 (D.C. Cir. 2000); United States v. Shevi, 345 F.3d 675, 679
(8th Cir. 2003); Todd v. Schomig, 283 F.3d 842, 853 (7th Cir.
2002); United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir.
2001); United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001).

In Crawford, the Supreme Court held that “testimonial
statements of a witness who d[oes] not appear at trial” are
inadmissible “unless he [is] unavailable to testify and the
defendant ha[s] had a prior opportunity for cross-examination.”
541 U.S. at 53-54. As the quotation indicates, Crawford applies
 11

only to “testimonial” evidence, and much of what Bras’
sentencing court relied on, see infra Part IV, does not fall within
that ambit. See id. at 56 (noting that business records “by their
nature [are] not testimonial”). Moreover, as the quotation
further reflects, Crawford was a case about the right to
confrontation at trial. See also Whorton v. Bockting, 127 S. Ct.
1173, 1182 (2007) (describing the purpose of the “Crawford
rule” as “ensuring that inaccurate out-of-court testimonial
statements are not used to convict an accused” (emphasis
added)). Nothing in Crawford suggests that the Court intended
to overturn its precedents permitting the use of hearsay at
sentencing. We are certainly not at liberty to do so. See
Agostini v. Felton, 521 U.S. 203, 237-38 (1997).

Nor does Booker suggest that a sentencing court may not
rely on hearsay. As noted in Part II, supra, Booker held that the
Sixth Amendment right to a jury’s determination of facts does
not extend to determinations made under advisory guidelines.
543 U.S. at 233 (“substantive” opinion); id. at 259 (“remedial”
opinion). Moreover, the Court expressed its understanding that
Congress’ direction, that “‘[n]o limitation shall be placed on the
information . . . which a court of the United States may receive
and consider for the purpose of imposing an appropriate
sentence,’” would continue in force under the modified
Guidelines regime that Booker instituted. Id. at 251 (quoting 18
U.S.C. § 3661) (“remedial” opinion).

We therefore reject Bras’ challenge, and we join our sister
circuits in holding that nothing in Crawford or Booker “‘alter[s]
the pre-Crawford law that the admission of hearsay testimony at
sentencing does not violate confrontation rights.’” United States
v. Brown, 430 F.3d 942, 944 (8th Cir. 2005) (quoting United
States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005)); see
United States v. Littlesun, 444 F.3d 1196, 1199-1200 (9th Cir.
2006); United States v. Katzopoulos, 437 F.3d 569, 576 (6th Cir.
 12

2006); United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005);
United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005);
United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005);
United States v. Martinez, 413 F.3d 239, 243-44 (2d Cir. 2005).

IV

“Even assuming, arguendo, that the Crawford test were
inapplicable,” Bras maintains that a sentencing court may not
rely on hearsay evidence unless it is “reliable.” Appellant’s Br.
22. Here, he is on firm legal ground. The Guidelines admonish
that, although the sentencing court may rely on evidence that
would be inadmissible at trial, the evidence must nonetheless
have “sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3. But while Bras insists that the
court used unreliable evidence to calculate the value of the loss
that his offense caused, we find to the contrary.

A

We begin with a description of the sentencing proceedings
undertaken by the district court. The court conducted a two-day
evidentiary hearing to determine how to calculate the loss to the
government, at which FBI Special Agent Kimberly Alaniz
testified at length. Through Alaniz’s testimony, the government
submitted a series of summary charts estimating the loss
resulting from the scheme at $512,165.18. Alaniz testified that
she prepared the charts based on documents obtained from Fort
Meyer, from DPW records, and from a box of records kept by
Bras’ deceased predecessor, Keith Armentrout. After
Armentrout’s death, his son gave the FBI the box, which
contained Fort Meyer Daily Reports, asphalt tickets,
photocopies of tickets, handwritten notes, and miscellaneous
other documents.
 13

Alaniz explained her methodology as follows. For each day
that Fort Meyer delivered asphalt to a DPW site, a Fort Meyer
foreman would prepare a Daily Report listing the actual amount
of asphalt delivered to a particular location. (These should not
be confused with the IDRs -- the daily reports prepared by DPW
inspectors that included the weights from the false tickets.)
Because it was impossible to tell from the face of an asphalt
ticket whether it was false, Alaniz compared the asphalt totals in
the Daily Reports with the totals reflected on the asphalt tickets
for the same date, contract, and location. When the tickets
reflected a greater amount of asphalt than the Daily Report, thus
indicating a fraudulent overstatement, she calculated the
difference in tons and multiplied that amount by the appropriate
price per ton to determine the loss.

Alaniz testified that the asphalt tickets she used for her
calculations came almost exclusively from the business records
of the DPW. The Daily Reports to which she compared the
asphalt tickets came from two sources: the business records of
Fort Meyer and the Armentrout box. Alaniz testified that, to
ensure the accuracy of the Daily Reports found in the box, she
reviewed them with a Fort Meyer official, who certified them as
copies of the original Fort Meyer documents. In addition, she
spoke with two Fort Meyer foremen, Lawrence Palmer and
Steve Kowalik, who examined and authenticated nearly all of
the Daily Reports from the Armentrout box that bore their
names. Alaniz also testified that, where the numbers recorded
on the Daily Reports were scratched out and replaced by higher
numbers that matched the final totals submitted to the DPW, she
relied on the lower number because Palmer and Kowalik told
her the lower numbers were the correct ones. Alaniz further
testified that “coring” tests were conducted at questionable
paving locations, revealing that less asphalt was laid at those
locations than Fort Meyer had been paid to deliver.
 14

Bras raised numerous objections to the government’s loss
calculations. These included objections to the following: the use
of certain documents from the Armentrout box; the decision to
rely on scratched-out numbers on specified Daily Reports; and
the use of asphalt tickets signed by DPW employee Robert
Lewis, which Alaniz included based on deceased co-conspirator
Joe Mathis’ statements that Lewis had been involved in the false
ticket scheme.

Although the court generally approved the government’s
method of calculating loss, as a first adjustment it asked Alaniz
to recalculate the loss by excluding any items not supported by
documentary evidence, whether from the Armentrout box or the
business records of DPW or Fort Meyer. This dropped the loss
from $512,165.18 to $456,959.86, which yielded a nine- rather
than ten-level increase under the Guidelines. See U.S.S.G. §
2F1.1(b)(1) (loss table). The district court then asked the agent
to delete any calculations relying on Daily Reports from the box
as to which there were no duplicate business records obtained
from the DPW or Fort Meyer. This produced a loss of
$226,749, which corresponded to an eight-level enhancement.
See id. At the final sentencing hearing, the court went through
additional iterations, further reducing the loss to eliminate
various of the defendant’s objections. The court concluded that,
although a nine-level enhancement was supported by specific
documentation, reduction to a five-level enhancement --
corresponding to a loss of $41,801 -- would “knock out all of
[Bras’] complaints about the figure.” Sentencing Hr’g Tr. 12
(Oct. 20, 2005); see id. at 61. The court then used the five-level
enhancement to calculate Bras’ total offense level of 21. See
United States v. Bras, No. 03cr00051-01, at 1 (D.D.C. Oct. 20,
2005) (Judgment).
 15

B

On appeal, Bras challenges the district court’s reliance on
materials contained in the Armentrout box, on out-of-court
statements made to Agent Alaniz by Fort Meyer foremen Palmer
and Kowalik regarding the meaning of the scratched-out
numbers on their asphalt tickets, and on the plea allocution of
co-defendant Joe Mathis with respect to the falsity of asphalt
tickets signed by Lewis. In large part, however, the defendant’s
objections appear to be based on a misunderstanding as to the
loss enhancement applied by the court. The court did not accept
the government’s original loss estimate of $512,165.18
(corresponding to a ten-level increase), nor its first adjusted
estimate of $456,959.86 (corresponding to a nine-level
increase), nor even its second-order adjustment to $226,749
(corresponding to an eight-level increase). Rather, as the
Statement of Reasons filed by the court makes clear, it
“determined after [the] evidentiary hearing [a] loss at level 5,”
which corresponds to the further adjusted loss estimate of
$41,801. Bras, No. 03cr00051-01, at 1; see U.S.S.G. §
2F1.1(b)(1).

We need not decide whether the court could have relied on
any of the government’s higher estimates in reaching a
conclusion regarding the amount of loss. But see Sealed Case,
246 F.3d at 700 (holding that hearsay of sufficient reliability
may be used at sentencing); United States v. Nesbitt, 852 F.2d
1502, 1521 (7th Cir. 1988) (holding that a sentencing judge may
rely on information obtained during plea proceedings of co-
defendants). Whatever the reliability of those earlier
calculations, the $41,801 figure was based on the court’s
decision to eliminate all calculations about which the defendant
had any “complaints.” Sentencing Hr’g Tr. 12 (Oct. 20, 2005);
see id. at 61. When the court explained that this was how it had
arrived at the loss figure, the defendant had a fair opportunity to
 16

dispute that his complaints had been taken into account. As the
hearing record reflects, and as counsel conceded at oral
argument, he did not do so. See Oral Arg. Recording at 28:50.

Instead, Bras contends that he never admitted that there was
any loss at all. Appellant’s Br. 18; Reply Br. 4; Oral Arg.
Recording at 25:17.2 This contention is mystifying. Bras signed
the government’s Statement of Facts, which described numerous
occasions on which Bras gave false asphalt tickets to DPW
employees, “thereby inflating” the federal contract. App. 42-43.
At his plea proceeding, the court asked Bras whether he
understood that “in giving a ticket that indicated some asphalt
had been delivered and it hadn’t been delivered, . . . Fort Meyer
would get paid based on that ticket even though they hadn’t
delivered any asphalt.” Hr’g Tr. 35 (Dec. 8, 2003). Bras
answered yes. Id.; see id. at 32-35.

We further note that, for all of Bras’ complaints regarding
out-of-court hearsay, the testimony at his trial more-than-
confirmed the loss determined by the district court. At Bras’
trial, five witnesses -- all available for cross-examination --
testified that Bras had given them between two and five
completely false tickets on a daily or almost daily basis. See
Trial Tr. 97, 99 (Dec. 2, 2003); Trial Tr. 136, 138 (Dec. 3,
2003); Trial Tr. 37, 173, 210 (Dec. 4, 2003); Trial Tr. 49-50, 62
(Dec. 5, 2003). Each ticket represented approximately twenty

2
Bras also argues that, even “[t]hough Agent Alaniz may have
depended upon other methods to subsequently verify which tickets she
believed false, she would not have known where to begin looking for
false tickets out of the universe of 60,000 tickets had she not used Mr.
Armentrout’s box as a ‘guide.’” Appellant’s Br. 24. As there is no
claim that the box was obtained illegally, there is nothing to this
argument. No rule of law bars the government from using hearsay
evidence, reliable or not, to help focus a criminal investigation.
 17

tons of never-delivered asphalt. One of the witnesses, Timothy
Martin, testified that he had taken three to five such tickets on
twenty to thirty occasions in 1997. See Trial Tr. 136, 138 (Dec.
3, 2003). Thus, even if the going rate for asphalt on all of those
days was at its low of $38 per ton, the loss described by Martin
alone was at least $45,600. We have previously upheld
sentences based on similar testimonial quantifications. Cf., e.g.,
United States v. Graham, 317 F.3d 262, 270-71 (D.C. Cir. 2003)
(affirming a sentencing court’s determination of the total
quantity of heroin attributed to a defendant based on the
testimony of co-conspirators regarding the frequency and
amount of individual distributions); United States v. Young, 247
F.3d 1247, 1252-53 (D.C. Cir. 2001) (holding that “testimony
about a conspirator’s intentions alone, even without physical
evidence, may be sufficient to establish the amount of drugs
contemplated as the object of a conspiracy”).

Under the Sentencing Guidelines, “loss need not be
determined with precision,” and the “court need only make a
reasonable estimate of the loss, given the available information.”
U.S.S.G. § 2B1.1 cmt. n.3. Accord United States v. Gottfried,
58 F.3d 648, 651 (D.C. Cir. 1995). In this case, a diligent
district judge held two days of evidentiary hearings, eventually
whittling down the loss estimate to a core as to which Bras did
not object. We find no error in the court’s determination.

V

Bras’ final contention is that his sentence was unreasonable
because the district court failed to adequately consider the
sentencing factors listed in the Sentencing Reform Act, 18
U.S.C. § 3553(a). Appellant’s Br. 27. Booker does require
sentencing courts to consider the § 3553(a) factors. 543 U.S. at
259-60. As we have noted before:
 18

These include the (now advisory) range established by
the Guidelines. See 18 U.S.C. § 3553(a)(4). But they
also include such factors as “the nature and
circumstances of the offense and the history and
characteristics of the defendant,” id. § 3553(a)(1); the
need for the sentence to “reflect the seriousness of the
offense,” to “promote respect for the law,” to “provide
just punishment,” to “afford adequate deterrence,” to
“protect the public,” and to “provide the defendant
with needed . . . training [and] medical care,” id. §
3553(a)(2); and the need to “avoid unwarranted
sentence disparities” among similarly situated
defendants, id. § 3553(a)(6).

Simpson, 430 F.3d at 1186; see Cunningham, 127 S. Ct. at 867.
In this case, the district court expressly considered the § 3553(a)
factors, and it did so in detail. The court explained that, among
other things, it considered Bras’ lack of criminal history, and his
education, employment, finances, physical and mental health,
and past and present family circumstances. Sentencing Hr’g Tr.
54-55 (Oct. 20, 2005). The district court is not required to refer
specifically “to each factor listed in § 3553(a),” nor is it required
“to explain sua sponte why it did not find [a particular] factor
relevant to its discretionary decision” if “a defendant has not
asserted the import of [that] factor.” Simpson, 430 F.3d at 1186-
87.

Bras does not deny that the court addressed many of the
statutory factors; indeed, he does not suggest any relevant factor
that the court failed to mention. Nonetheless, the defendant
regards his 37-month sentence as unreasonable because it is
“‘greater than necessary[] to comply with the purposes’ of
sentencing as set out in the 3553(a)(2) factors.” Appellant’s Br.
27 (quoting 18 U.S.C. § 3553(a)). In support, he argues that the
 19

court’s consideration of certain specific sentencing factors was
inadequate.

The government insists that we may review this claim only
for “plain error,” because Bras did not argue in the district court
that his “37-month term was ‘unreasonable,’ or object that the
court did not adequately consider the factors” set forth in §
3553. Gov’t Br. 59. The plain error test does apply to
objections that should have been raised at sentencing. See
Booker, 543 U.S. at 268. Reasonableness, however, is the
standard of appellate review, see id. at 262, not an objection that
must be raised upon the pronouncement of a sentence. As the
Seventh Circuit has held:

To insist that defendants object at sentencing to
preserve appellate review for reasonableness would
create a trap for unwary defendants and saddle busy
district courts with the burden of sitting through an
objection -- probably formulaic -- in every criminal
case. Since the district court will already have heard
argument and allocution from the parties and weighed
the relevant § 3553(a) factors before pronouncing
sentence, we fail to see how requiring the defendant to
then protest the term handed down as unreasonable will
further the sentencing process in any meaningful way.
Certainly we do not mean to . . . suggest that our
longstanding insistence on proper objections as to other
sentencing issues, e.g., the application of a guideline
adjustment, should be relaxed. All we conclude here
is that our review of a sentence for reasonableness is
not affected by whether the defendant had the foresight
to label his sentence “unreasonable” before the
sentencing hearing adjourned.
 20

United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir.
2005). We therefore proceed to apply the “‘reasonableness’
standard of review.” Booker, 543 U.S. at 262.

Although Bras contends that the district court’s analysis
was inadequate in numerous respects, only two are worthy of
comment. First, he argues that a 37-month sentence is
unreasonable because his involvement in the conspiracy was
exaggerated. “Mr. Armentrout was the leader of the
conspiracy,” Bras maintains, while he merely “stepped in to
‘serve as his arms and legs’” after Armentrout was
incapacitated. Appellant’s Br. 28. We see no error in the
court’s decision, under U.S.S.G. § 3B1.1(a), to add four levels
to Bras’ offense level because he “was an organizer or leader of
a criminal activity that involved five or more participants or was
otherwise extensive.” Id. § 3B1.1(a). “There can, of course, be
more than one person who qualifies as a leader or organizer of
a criminal association or conspiracy,” id. cmt. n.4, and the trial
testimony readily established that the requirements of Guideline
3B1.1(a) were satisfied.

Nor was there anything inadequate about the court’s more
general consideration of this issue. As the court explained, Bras
had “a leadership role and an organizational one in the sense that
he had to organize [the conspiracy] to make it work both at Fort
Meyer as well as the DPW in order to have the scheme actually
continue, and under his leadership I think it increased.”
Sentencing Hr’g Tr. 37 (Oct. 20, 2005). Further, the court cited
trial testimony that, “as soon as the defendant became asphalt
superintendent, . . . he approached” DPW inspectors “about the
bribes,” and “either continued with those who had been doing it
[or] recruited a new one.” Id. He “certainly had substantial
operational authority,” id., “was involved in . . . distributing the
false tickets, . . . directed the dispatcher and certain personnel in
terms of producing the false tickets, [and] got the cash to pay the
 21

bribes and distribute[d]” them, id. at 38. The court further found
that Bras had “minimized his role when he pled,” id. at 52, and
that “he blamed others [and] falsely denied the extent of his
role.” Id. at 53. We have no basis for second-guessing any of
these determinations.

Bras’ second contention is that his 37-month sentence
creates an “unwarranted sentence disparit[y],” 18 U.S.C. §
3553(a)(6), with those of his co-conspirators, including DPW
inspectors, who received sentences of probation. Appellant’s
Br. 30. But as the district court told Bras directly, his co-
conspirators did not hold comparable positions, either in the
conspiracy or in their workplaces, “nor were they paid the kind
of salary that you were being paid in terms of your position.”
Sentencing Hr’g Tr. 58 (Oct. 20, 2005). Equally important, the
co-conspirators who received probation provided substantial
assistance in the investigation of the scheme, while Bras did not.
“Without, frankly, the cooperators,” the court explained, other
“individuals would not have come forward [and] the extent of
the scheme would not have been known.” Id. at 59. The court
found this distinction “very important,” id. at 60, and rightly so,
cf. U.S.S.G. § 5K1.1 (authorizing a downward departure from
the Guidelines range when a defendant “has provided substantial
assistance in the investigation or prosecution of another person
who has committed an offense”).

In sum, Bras has offered no basis for concluding that the
district court’s consideration of the relevant sentencing factors
was inadequate, or that the sentence it imposed was otherwise
unreasonable.
 22

VI

For the foregoing reasons, the judgment of the district court
is

Affirmed.