The Honorable Jimm Larry Hendren, United States District Judge for the

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Western District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3606

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Arkansas.

Michael Ed Brewer, *

* [UNPUBLISHED]

Appellant. *

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 Submitted: March 26, 1998

 Filed: March 27, 1998 

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Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

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PER CURIAM.

Michael Ed Brewer pleaded guilty to one count of distributing

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994), and to one count of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (1994).

The District Court sentenced Brewer to 121 months imprisonment and three years

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supervised release. In this direct appeal of his sentence, Brewer argues that the District
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Court&s reliance on hearsay evidence at sentencing was erroneous, and violated his due

process and confrontation rights. We disagree and therefore affirm.

At sentencing, the District Court considered the testimony of an FBI agent, who

had participated in Brewer&s investigation, as to the substance of interviews the agent or

other investigators had conducted with third persons. Based on this testimony, the

District Court overruled Brewer&s objections to the drug-quantity determination indicated

in the presentence report and to a recommended increase under U.S. Sentencing

Guidelines Manual § 3B1.1(a) (1997) for Brewer&s aggravating role in the offense. 

District courts may consider hearsay at sentencing, without regard to its

admissibility at trial, so long as the testimony has sufficient indicia of reliability to

support that it was probably accurate. See U.S. Sentencing Guidelines Manual

§ 6A1.3(a), p.s. (1997); United States v. Drapeau, 121 F.3d 344, 351 (8th Cir. 1997).

The particular circumstances of a case dictate whether challenged hearsay is reliable

enough to be used at sentencing, see Drapeau, 121 F.3d at 351, a determination we

review for abuse of discretion, see United States v. Stavig, 80 F.3d 1241, 1247 (8th Cir.

1996).

We conclude the District Court did not abuse its discretion in this case because

the statements given to investigators were largely consistent with one another, and were

corroborated in part by Brewer&s admissions and the circumstances surrounding the

arrest of one of the persons the FBI agent interviewed. In addition, the declarants were

providing information against their penal interests. Cf. United States v. Cassidy, 6 F.3d

554, 557 (8th Cir. 1993) (holding that there was no abuse of discretion in considering

detective&s testimony as to what third person stated during debriefing; declarant made

incriminating statements in presence of her attorney while awaiting sentencing in

declarant&s own case, statements were consistent with facts discovered during

investigation and were corroborated by seized physical evidence and defendant&s own
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sentencing testimony, and this court has upheld consideration of hearsay evidence under

more “tenuous and unclear circumstances”). Although Brewer provided contrary

testimony, we cannot say that the District Court erred in choosing to discredit it. See

United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993).

Finally, Brewer&s Confrontation Clause argument is foreclosed by United States

v. Wise, 976 F.2d 393, 401 (8th Cir. 1992) (en banc) (right to confront witnesses does

not attach at sentencing), cert. denied, 507 U.S. 989 (1993); and given the approximate

three-fold increase in Brewer&s sentence attributable to the challenged hearsay, we do

not think due process concerns were triggered in this case, see id. (holding that in certain

instances sentence may so overwhelm or be so disproportionate to punishment that

would otherwise be imposed that due process concerns must be addressed).

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.