FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-30300 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00080-RFC

HORACE LITTLESUN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, District Judge, Presiding

Argued and Submitted

September 12, 2005—Seattle, Washington

Filed April 21, 2006

Before: James R. Browning, Arthur L. Alarcón, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Kleinfeld

4551
COUNSEL

Larry Jent, Williams & Jent, PLLP, Bozeman, Montana, for

appellant Horace Littlesun. 

Marcia Hurd, Assistant U.S. Attorney, District of Montana,

for appellee United States of America.

UNITED STATES v. LITTLESUN 4553
OPINION

KLEINFELD, Circuit Judge: 

We publish this opinion to resolve whether, after Crawford

v. Washington, it is appropriate to use hearsay testimony during sentencing. We join each of our sister circuits who have

considered the issue in concluding that it is. 

FACTS

Horace Littlesun, his wife, and numerous others conspired

to sell and sold methamphetamine on the Northern Cheyenne

Indian Reservation in Montana. Their inventory came from

several out-of-state individuals the reservation residents called

“the Mexicans.” 

Littlesun pled guilty to selling 3.7 grams of methamphetamine to an undercover informant,1

 but the sentencing judge

held him accountable for 32.5 grams. The approximate one

ounce difference generated a guideline adjustment that lengthened Littlesun’s sentence. Littlesun’s wife had told a Bureau

of Indian Affairs agent that her husband had sold the additional ounce, but she did not testify at Littlesun’s sentencing

hearing. The BIA agent who interviewed her testified to what

she had told him. The sentencing judge believed the agent and

imposed the quantity adjustment accordingly. Littlesun was

also denied a downward adjustment for minor or minimal role

in the conspiracy, partly on the basis of what his wife had told

the agent. 

The sentencing judge considered the defense’s confronta1Conspiracy to distribute methamphetamine within 1,000 feet of the

Northern Cheyenne federal housing project in violation of 21 U.S.C.

§§ 841(a)(1), 860, & 846, and distributing less than 50 grams of methamphetamine within 1,000 feet of the Northern Cheyenne federal housing

project. 

4554 UNITED STATES v. LITTLESUN
tion clause objection to the BIA agent’s testimony and overruled it, concluding that all that he needed was “some

particularized guarantee of trustworthiness” rather than confrontation and cross-examination of Littlesun’s wife. The

agent testified that the wife had told him that “the Mexicans”

had fronted an ounce to her husband in February 2003 for a

price of $1,500.2 She and her husband were selling grams for

$100 and smaller “bindles” for $25. Her husband also collected debts for “the Mexicans,” wired money to them, and

permitted them to stay at his house on their trips to the reservation. 

When the investigation broke open, Littlesun’s wife talked

to the investigators but he did not. She refused to disclose

who her customers were, but said that her husband used a

gram of methamphetamine himself every few days, which

would offer an alternative path for the disappearance of the

ounce he was fronted. 

Littlesun testified that one of the Mexicans was “making a

move” on his wife, and “[t]hey must have fell in love or

something,” so he moved out to his sister’s and was staying

with her in Busby, Montana, during the first three months of

2003. During that period he was “stepping out” on his wife

with another woman, and she was angry at him for it. But he

had moved back home a couple of days before the March sale

of 3.7 grams to the undercover agent, though they were “still

having [their] feud.” (This was not their first tiff — the presentence report says that the wife had stabbed him several

years before.) He denied selling the ounce, denied it was

fronted to him, and denied collecting debts for “the Mexicans.” He testified that he only sold the 4 grams when the

informant came to his house and asked for his wife, and the

wife and informant told him to go to the neighbor’s at the end

of the cul-de-sac and bring back the drugs for her deal. 

2To front drugs is to advance the inventory to a dealer on credit. 

UNITED STATES v. LITTLESUN 4555
On cross-examination, Littlesun admitted that he wired

$711 to someone in Utah on December 14, 2002, and $921 to

one of his co-defendants on January 5, 2003. He knew at the

time that the money was drug trafficking proceeds and that

there was a drug conspiracy going on, but said his wife “had

her own thing going.” 

The district judge was hearing this case after Blakey3 and

before Booker,

4

 so he applied a “beyond a reasonable doubt”

standard at sentencing. The judge did not impose an upward

adjustment to Littlesun’s guideline calculation for wiring the

money, but considered the money transfers in determining

whether Littlesun was telling the truth about the ounce. He

found beyond a reasonable doubt that Littlesun knew about

the conspiracy, though he did not adjust the sentence to reflect

the 210 gram amount charged to the conspiracy in Count I of

the indictment. Despite Littlesun’s denial, the sentencing

judge found beyond a reasonable doubt that the ounce was

fronted to Littlesun and that he sold it. The sentencing judge

disbelieved Littlesun because he denied personal involvement

with the conspiracy even while “the Mexicans” lived in his

house and he wired money to them. So he accepted the wife’s

out-of-court statement to the BIA agent. As a result, Littlesun

got 33 months to serve even though he had no significant

criminal history. His wife got only 18 months. 

ANALYSIS

A. Hearsay at Sentencing

[1] The Supreme Court held in Williams v. New York5 that

admission of hearsay evidence at sentencing did not violate

the due process clause. In that case, a jury had recommended

life imprisonment for a murderer but the judge imposed a

3Blakely v. Washington, 542 U.S. 961 (2004). 

4United States v. Booker, 543 U.S. 220 (2005). 

5Williams v. New York, 337 U.S. 241, 246 (1949). 

4556 UNITED STATES v. LITTLESUN
death sentence because the presentence investigation revealed

additional aggravating evidence that the jury had not heard.

The Court explained that, 

both before and since the American colonies became

a nation, courts in this country and in England practiced a policy under which a sentencing judge could

exercise a wide discretion in the sources and types of

evidence used to assist him in determining the kind

and extent of punishment to be imposed within limits fixed by law.6

This may include affidavits and, in smaller communities, the

judge’s own knowledge. When Williams was decided in 1949,

presentence reports had just begun to be considered, the Court

noted, to implement “a prevalent modern philosophy of

penology that the punishment should fit the offender and not

merely the crime,” so that the death sentence was no longer

“an automatic and commonplace result of convictions.”

7

 Individualization of sentences made it especially necessary to

review a broad range of sentencing information that was not

appropriately submitted to juries considering guilt. 

[2] Congress has since provided by statute that the hearsay

rule and other evidentiary limitations do not apply to sentencing: 

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 sentence.8

6

Id. at 246. 

7

Id. at 247. 

8

18 U.S.C. § 3661. 

UNITED STATES v. LITTLESUN 4557
We require only that the testimony “be accompanied by some

minimal indicia of reliability.”

9

 In this case, that criterion is

plainly satisfied by the judge’s personal observation of the

defendant’s demeanor during his testimony, the wire transfers

and their significance, and testimonial inconsistencies noted

by the sentencing judge. 

[3] Littlesun argues that these longstanding principles have

been implicitly overruled and that the Supreme Court’s decision in Crawford v. Washington10 requires that the Confrontation Clause be interpreted to exclude hearsay at sentencing.

But Crawford does not expressly speak to sentencing. It holds

that, with the possible exception of dying declarations, the

Confrontation Clause demands two things for admissibility of

testimonial hearsay at trial: unavailability of the witness and

prior opportunity for cross-examination.11 Crawford speaks to

trial testimony, not sentencing. 

Littlesun’s argument nevertheless has some force. Though

the meaning of “testimonial” in Crawford is not entirely clear,

there can be no question that Littlesun’s wife’s testimony is

testimonial if Crawford applies to sentencing. And the record

is clear that Littlesun never had an opportunity to crossexamine his wife about what she said. Cross examination

might have been productive, because her participation in the

methamphetamine conspiracy and her own interest in

lenience, her boyfriend among “the Mexicans,” his girlfriend,

and the prior occasion when she stabbed Littlesun all might

have given rise to an inference that she was not telling the

truth when she cast the blame on her husband for the additional ounce. 

9United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (internal quotations omitted). 

10Crawford v. Washington, 541 U.S. 36 (2004). 

11Id. at 63-64, 68-69 (overruling the “particularized guarantees of trustworthiness” test in Ohio v. Roberts to the extent it is inconsistent with

Crawford). 

4558 UNITED STATES v. LITTLESUN
[4] But it is not for us to overrule the Supreme Court’s

decision in Williams. Under Agostini v. Felton,

12 we are bound

to apply controlling Supreme Court precedent until it is

explicitly overruled by that Court.13 And Crawford does not

explicitly overrule Williams. Thus the law on hearsay at sentencing is still what it was before Crawford: hearsay is admissible at sentencing, so long as it is “accompanied by some

minimal indicia of reliability.”

14

[5] The same conclusion has been reached by the First,

Second, Sixth, Seventh, Eighth, and Eleventh Circuits,15 and

none of our sister circuits have reached a contrary conclusion.

And we have previously held that “[f]ederal law is clear that

a judge may consider hearsay information in sentencing a defendant.”16

[6] Littlesun counters with our decisions in United States v.

Comito17 and United States v. Martin,

18 but those cases

involved revocation of parole and supervised release, not sentencing. Those decisions were grounded in the Supreme

12Agostini v. Felton, 521 U.S. 203, 237 (1997) (“If a precedent of this

Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative

of overruling its own decisions.” (internal citation omitted)). 

13United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005).

14United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (internal

quotations omitted). 

15See, e.g., United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005);

see also United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005);

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. Brown, 430

F.3d 942, 944 (8th Cir. 2005); United States v. Chau, 426 F.3d 1318, 1323

(11th Cir. 2005). 

16United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988).

17United States v. Comito, 177 F.3d 1166, 1172 (9th Cir. 1999). 

18United States v. Martin, 984 F.2d 308 (9th Cir. 1993). 

UNITED STATES v. LITTLESUN 4559
Court’s decision in Morrissey v. Brewer19 which expressly

held that a parolee is entitled to cross-examine witnesses at a

revocation proceeding,20 subject to balancing certain factors.

That requirement has since been codified in the Federal Rules

of Criminal Procedure,21 but neither Morrissey nor the Federal

Rules of Criminal Procedure say anything about Williams or

the right to examine adverse witnesses at sentencing. A court

is presented with quite a different set of circumstances when

it has to decide whether someone is guilty and must go to

prison than when it is deciding how long a convicted criminal

must serve. We rejected an attempt to graft Crawford’s Sixth

Amendment rule onto Morrissey’s Due Process requirement

at revocation proceedings in our recent decision in United

States v. Hall.

22 United States v. Corral23 holds that reversal

is necessary where the sentencing judge relies on what was

concededly unreliable hearsay.24 It does not hold that accomplice hearsay is unreliable even where there are sufficient

indicia of reliability. The government conceded on appeal in

Corral that the hearsay was unreliable, but had not done so at

sentencing.25 Corral expressly recognizes that hearsay is

admissible at sentencing.26 The reliability of Littlesun’s wife’s

hearsay might have become doubtful because she was an

accomplice with a penal interest and had demonstrated her

hostility to her husband, but the wire transfers and inconsis19Morrissey v. Brewer, 408 U.S. 471 (1972). 

20Id. at 488-89. 

21See Fed. R. Crim. Proc. 32.1(b)(2)(C). 

22United States v. Hall, 419 F.3d 980, 985 (9th Cir. 2005). 

23United States v. Corral, 172 F.3d 714 (9th Cir. 1999). 

24See id. at 715. 

25See id. (Explaining that the government conceded that the hearsay in

that case “was not reliable enough to be used.”). 

26See id. at 716 (Explaining that the sentencing “judge was correct that

hearsay is admissible in sentencing . . . .”). 

4560 UNITED STATES v. LITTLESUN
tencies the district court noted were significant indicia corroborating Littlesun’s role.27

B. Minor or Minimal Participant

[7] Littlesun also challenges the district court’s denial of a

downward adjustment because he was a minimal or minor

participant in the conspiracy.28 Much of his argument is that

the conspiracy sold a lot more methamphetamine than he participated in, but the judge took this into account in attributing

to Littlesun only 32.5 grams, not the 210 grams the indictment

charged. The district judge relied on Littlesun’s wife’s statement, as well other material in the presetence report to conclude that he had “a smaller role than some others in the

conspiracy, but it was by no means small enough” for a role

adjustment. We review denial of a role adjustment for clear

error,29 and there was none because the court accepted the evidence of Littlesun’s wife’s statement. 

[8] The district court’s determination that hearsay was

admissible at sentencing and its guideline calculation were

each correct. However, we grant a limited remand to allow the

district court to answer the question whether it would have

imposed a different sentence had it viewed the Guidelines as

advisory.30

AFFIRMED in part and REMANDED.

27Littlesun also relies on United States v. Mezas de Jesus, 217 F.3d 638

(9th Cir. 2000), but it does not hold that hearsay or accomplice testimony

are inadmissible at sentencing. Rather, it holds that the clear and convincing standard of proof should have been applied where an uncharged

offense had an extremely disproportionate effect on the sentence relative

to the offense of conviction. See id. at 642-43. 

28U.S.S.G. § 3B1.2. 

29See United States v. Pena-Gutierrez, 222 F.3d 1080, 1091 (9th Cir.

2000) (Explaining that a “district court’s determination that the defendant

was not a minor participant in the offense is a factual determination that

we review for clear error.”). 

30United States v. Ameline, 409 F.3d 1073, 1079 (9th Cir. 2005) (en

banc). 

UNITED STATES v. LITTLESUN 4561