UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4480

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

MOISES RAMIREZ REYNA, a/k/a Moi, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. 

Conrad, Jr., Chief District Judge. (3:06-cr-00353-RJC-5) 

Submitted: June 11, 2009 Decided: July 6, 2009 

Before WILKINSON, MICHAEL, and KING, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Denzil H. Forrester, Charlotte, North Carolina, for Appellant. 

Gretchen C. F. Shappert, United States Attorney, Charlotte, 

North Carolina; Amy E. Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Moises Ramirez Reyna pled guilty, without a plea 

agreement, to conspiracy to possess with intent to distribute 

heroin, in violation of 21 U.S.C. § 846 (2006). Reyna was 

sentenced to 135 months’ imprisonment. Finding no error, we 

affirm. 

 Reyna’s counsel raises various challenges to the 

district court’s application of the Sentencing Guidelines on 

appeal. At sentencing, the district court is initially required 

to calculate an appropriate advisory Guidelines range. Gall v. 

United States, 552 U.S. 38, __, 128 S. Ct. 586, 596 (2007). The 

district court “may accept any undisputed portion of the 

presentence report as a finding of fact,” Fed. R. Crim. P. 

32(i)(3)(A), and should evaluate the sentencing factors based on 

the preponderance of the evidence, see United States v. Harvey, 

532 F.3d 326, 337 (4th Cir. 2008). When reviewing the district 

court’s application of the Sentencing Guidelines, we review 

findings of fact for clear error and questions of law de novo. 

United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. 

denied, 128 S. Ct. 2525 (2008). 

 “No 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 

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sentence.” 18 U.S.C. § 3661 (2006); see also U.S. Sentencing 

Guidelines Manual § 1B1.4 (2007). Moreover, the traditional 

rules of evidence are not applicable to sentencing proceedings. 

See Fed. R. Evid. 1101(d)(3). Thus, the district court may 

consider any related and reliable evidence before it, including 

hearsay, in establishing relevant conduct. United States v. 

Bowman, 926 F.2d 380, 381 (4th Cir. 1991). With these 

principles in mind, each of counsel’s arguments are addressed in 

turn. 

 Counsel first contends that the district court failed 

to comply with Rule 32 in resolving the Government’s objection 

to the presentence report’s omission of a role enhancement. 

“[F]or any disputed portion of the presentence report or other 

controverted matter[, the district court must] rule on the 

dispute or determine that a ruling is unnecessary either because 

the matter will not affect sentencing, or because the court will 

not consider the matter in sentencing[.]” Fed. R. Crim. P. 

32(i)(3)(B). 

 As the proponent of the sentencing enhancement, the 

burden was on the Government to establish by a preponderance of 

the evidence that the enhancement should be applied. See United 

States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004). The 

Government therefore presented the testimony of Chris Batina, an 

agent with the Drug Enforcement Administration, to establish 

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that Reyna was a mid-level “dispatcher,” who was responsible for 

breaking ounce quantities of heroin received from the “cell 

head” into user amounts, or balloons. 

 Testimony showed that officers arrested Reyna and 

several other members of the conspiracy at an apartment leased 

by Reyna. The dispatchers, including Reyna, were found to be in 

possession of cell phones that were used as “dispatch phones.” 

Additionally, Reyna’s name was listed in drug ledgers, which the 

cell heads used to keep track of drug amounts disbursed to the 

dispatchers. One co-conspirator informed Batina that a streetlevel dealer, or “runner,” named Victor Soria worked for Reyna. 

Soria was arrested while leaving Reyna’s apartment and, when 

searched, was in possession of several balloons of heroin. 

 In accordance with Rule 32(i)(3)(B), the court 

considered the evidence and summarized its factual findings and 

conclusions. The court determined that Reyna “was a manager of 

the organization and had at least one person that he supervised 

or managed, that being the runner, Soria.” J.A. 91. While 

counsel asserts that the court erred by not specifically ruling 

on other individuals the Government alleged were supervised by 

Reyna, this was unnecessary as the Government corrected its 

assertions made in the objection and clarified that Soria was 

Reyna’s runner. 

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 Counsel also contends that the evidence presented at 

sentencing was unreliable. Yet, the materials in the joint 

appendix do not support counsel’s claim. As summarized above, 

both testimony and physical evidence established that Reyna was 

a mid-level manager responsible for directing another individual 

in the conspiracy. 

 Next, counsel argues that the district court erred in 

considering evidence that was not part of the presentence 

report. Counsel concludes that the presentence report “carries 

with it the same cloak of impartiality as a jury verdict” 

because, like a jury verdict, the report is an “unbiased 

conclusion formed after gleaning from collected information.” 

Br. of Appellant 18. We conclude, however, that the district 

court did not err in considering the testimony of the federal 

agent at sentencing because a court may permit either party 

under Rule 32(i)(2) of the Federal Rules of Criminal Procedure 

to present evidence, including witness testimony, on an 

objection to the presentence report. 

 Finally, counsel contends that the district court’s 

consideration of hearsay evidence at sentencing violated Reyna’s 

constitutional right of confrontation. In Crawford v. 

Washington, 541 U.S. 36 (2004), the Supreme Court held that the 

Confrontation Clause prohibits the admission at trial of 

testimonial statements that are not subject to cross5 
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examination. Id. at 50-51. However, no circuit court to have 

considered the effect of Crawford has concluded that the rule 

announced in Crawford applies at sentencing. See, e.g., United 

States v. Bras, 483 F.3d 103, 109 (D.C. Cir. 2007) (determining 

Crawford did not alter general rule that hearsay evidence 

admitted at sentencing does not violate defendant’s 

confrontation rights); see also United States v. Brown, 430 F.3d 

942, 943-44 (8th Cir. 2005) (noting courts have held that 

Crawford did not alter general rule of admissibility of hearsay 

evidence at sentencing). 

 Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

AFFIRMED