UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-5000

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WARREN SANDERS, a/k/a New York Mike, a/k/a

Charlie Brown, a/k/a William McKinney,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Huntington. Robert C. Chambers,

District Judge. (CR-03-86)

Submitted: February 28, 2006 Decided: May 8, 2006

Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Vacated and remanded by unpublished per curiam opinion.

John H. Tinney, Jr., James K. Tinney, THE TINNEY LAW FIRM,

P.L.L.C., Charleston, West Virginia, for Appellant. Kasey Warner,

United States Attorney, Miller A. Bushong, III, Assistant United

States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*Sanders pled guilty to distribution of more than five grams

of cocaine base (crack) and was initially sentenced to a term of

262 months imprisonment. 

- 2 -

PER CURIAM:

Warren Sanders appeals the 235-month sentence he received

after we remanded his case for resentencing to correct an error in

his criminal history calculation. United States v. Sanders, No.

03-4768 (4th Cir. Aug. 27, 2004) (unpublished).* Sanders contends

that, when he was resentenced in November 2004, the district court

erred under United States v. Booker, 543 U.S. 220 (2005), in

computing his offense level and applying the guidelines as

mandatory, in making fact findings by a preponderance of the

evidence, and in considering testimonial hearsay evidence from law

enforcement interviews and grand jury testimony summarized in the

presentence report. The government does not oppose resentencing.

We vacate the sentence and remand for resentencing.

Relying on Booker and United States v. Hughes, 401 F.3d

540 (4th Cir. 2005), Sanders contends that the district court erred

in calculating his offense level based on relevant conduct that was

more than the five grams of crack he pled guilty to distributing.

We conclude that Sanders’ sentence was based on judicially found

facts concerning the drug quantity in violation of the Sixth

Amendment, as interpreted in Booker and Hughes. Resentencing is

thus necessary. 
- 3 -

We note that Sanders maintains that Booker requires a

sentencing court applying the advisory guidelines to make fact

findings beyond a reasonable doubt. Neither Booker nor this

court’s decisions since Booker support his position. See Hughes,

401 F.3d at 557, 560 (applying clearly erroneous standard of review

to district court’s factual findings). In addition, relying on

Crawford v. Washington, 541 U.S. 36 (2004), Sanders contends that

the Confrontation Clause should apply to the district court’s

consideration of information in the presentence report that

increased his guideline sentence. In Crawford, the Supreme Court

held that the Confrontation Clause prohibits the admission of

testimonial statements that are not subject to cross-examination.

Id. at 50-51. Several circuits have held that Crawford did not

make the Confrontation Clause applicable at sentencing. See United

States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005); United

States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 126 S.

Ct. 671 (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), cert. denied, 126 S. Ct. 1086 (2006). In light of

these decisions, we conclude that Sanders’ position is without

merit. 

For the reasons discussed, we vacate the sentence imposed

by the district court and remand for resentencing consistent with

Booker and Hughes. We dispense with oral argument because the
- 4 -

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

VACATED AND REMANDED