* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11337

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOHN B BROADUS, also known as Blacc

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:06-CR-76-1

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

John B. Broadus appeals his sentence following his guilty plea to five

counts of an indictment charging him with conspiracy, distribution, and

possession with intent to distribute cocaine base. Broadus contends that the

district court erred by overruling his objections to information that was based

on hearsay and unsworn statements in violation of his Sixth Amendment right

to confront witnesses as setforth in Crawford v. Washington, 541 U.S. 36 (2004).

United States Court of Appeals

Fifth Circuit

F I L E D

December 4, 2007

Charles R. Fulbruge III

Clerk
No. 06-11337

2

This court has held that the Confrontation Clause does not apply at sentencing.

United States v. Mitchell, 484 F.3d 762, 776 (5th Cir.), cert. denied, 128 S.Ct. 297

(2007); United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006). Broadus

simply argues that this holding is incorrect and should be reversed. A panel of

this court cannot overrule a prior panel’s decision in the absence of intervening

contrary or superseding authority. Burge v. Parish of St. Tammany, 187 F.3d

452, 466 (5th Cir. 1999). 

Broadus argues that the district court committed Sixth Amendment error

in light of United States v. Booker, 543 U.S. 220 (2005), by adopting the facts

that were not proved beyond a reasonable doubt. Booker eliminated any Sixth

Amendment error caused by judicial factfinding with respect to sentencing

determinations by rendering the Sentencing Guidelines advisory rather than

mandatory. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

Broadus is asking the court to reverse Mares. As in the prior issue, one panel

of the court may not overrule another. See Burge, 187 F.3d at 466. 

Broadus asserts that all three of his felony drug convictions were related

for purposes of his criminal-history score because they had been consolidated for

sentencing. Whether prior convictions are related under U.S.S.G. § 4A1.2

because they were functionally consolidated for trial or sentencing is a question

of fact accorded deferential review under the clear-error standard. Buford v.

United States, 532 U.S. 59, 64-66 (2001). In United States v. Kates, 174 F.3d

580, 584 (5th Cir. 1999), the court held that two offenses involving delivery of

cocaine, occurring one week apart, were not related even though the defendant

was sentenced by same judge on same date for each offense and sentences were

concurrent. The district court did not err in determining that Broadus’s

convictions were unrelated for the purpose of calculating his criminal history.

The Government’s motion for summary affirmance is GRANTED, and its

alternative motion for an extension of time to file a brief is DENIED. The

district court’s judgment is AFFIRMED.