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### NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 09-4451

__________ UNITED STATES OF AMERICA,

v. DWAIN WILLIAMS, Appellant
On Appeal from the United States District Court for the Middle Distri ct of Pennsylvania (D. C. No. 1-09 -cr-00010-001) District Judge: Hon. Sylvia H. Rambo

Submitted under Third Circuit LAR 34.1(a) on November 5, 2010 Before: SCIRICA, RENDELL and ROTH, Circuit Judges (Opinion filed: December 10, 2010)

O P I N I O N ROTH , Circuit Judge : I. Introduction Dwain Williams appeals his conviction for conspiracy to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 846, and more th an 100 grams of heroin, in

### violation of 21 U.S.C. § 841(a)(1 ). He claims that the District Court violated his Sixth Amendment right to confront witnesses when it admitted laboratory analyses without the testimony of the analysts who performed them. He also contends that the District Court erred in finding, for sentencing purposes, a drug weight greater than 1,000 grams. II. Background On December 9, 2008, Williams was arrested on two drug charges after he participated in a controlled drug sale arra nged by a confidential info rmant. A substance suspected to be heroin was recovered at the si te of the sale and sent to a laboratory for testing. The resulting analyses confirmed that the substance was heroin. Before Williams’s trial, his counsel stipulated to th e admissibility of the laboratory analyses, and no objection was made at trial when the anal yses were admitted as evidence. The jury found Williams guilty on bo th drug charges. At sentencing, the District Court relie d on the confidential informant’s testimony to determine the amount of heroin that Willia ms conspired to distri bute and distributed. The informant himself had been a drug dealer who had pu rchased heroin from Williams for over a year. Although th e informant could not recall th e exact amount of heroin he had purchased from Williams, he stated that he had made at least one purchase of 500 grams and weekly purchases fro m Williams of ten or more grams of heroin. The Court found that although the info rmant’s testimony contained some inconsistencies, it was “not entirely non-credible.” Accordingly, when calculating the amount of heroin that Williams distributed, the District Court us ed the low end of th e weekly estimates provided by the in formant (ten grams) and calculated th at this amounted to 520 grams of 2

### heroin sold over the course of a year. This amount, added to the single sale of 500 grams and the controlled sales of 14 and 103 grams, resulted in a total distribution amount of 1,137 grams of heroin, and a base offense level of 32 for Williams. Williams appealed his conviction and sentence. We have jurisd iction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). III. Discussion A. Confrontation Clause Williams’s appeal regarding the C onfrontation Clause turns on whether Williams’s right to confront th e laboratory analyst was validly waived by his counsel. If the right was waived, it cannot now be raised on appeal. See Virgin Islands v. Rosa , 399 F.3d 283, 290 (3d Cir. 2005). Williams argues that his counsel’s sti pulation was not a valid waiver of his Confrontation Clause rights be cause he did not personally waive the right; his attorney waived his right on his behal f. Although we have not pr eviously decided whether the Confrontation Clause requires a defendant’s personal waiver of his confrontation rights, every circuit to consider the matter has held that a personal waiver is not required. See Janosky v. St. Amand , 594 F.3d 39, 48 (1st Cir. 2010); United States v. Plitman , 194 F.3d 59, 64 (2d Cir. 1999 ); United States v. Stephens , 609 F.2d 230, 232-33 (5th Cir. 1980); United States v. Cooper , 243 F.3d 411, 418 (7th Cir. 2001); United States v. Gamba , 541 F.3d 895, 900-01 (9th Cir. 2008); United States v. Aptt , 354 F.3d 1269, 1282 (10th Cir. 2004. We agree with our sist er circuits and conclude that the Confrontation Clause does not require that the defendant persona lly waive his confrontation rights. 3

### Because Williams’s personal waiver of hi s confrontation rights was not required, we therefore consider whether his counsel’s waiver of his confrontation right was invalid under the circumstances of this case. Th e validity of counsel’s waiver depends on whether the defendant dissented from his counsel’s decision and whether counsel’s decision was a legitimate trial tactic or part of a prudent trial strategy. United States v. Stephens , 609 F.2d 230, 232-33 (5th Cir. 1980). Neither factor, as applied to the facts here, suggests that the sti pulation concerning the laborat ory test by Williams’s counsel was invalid. First, there is no evidence in the recordthat Williams dissented from his counsel’s stipulation to the admissibility of the laboratory evidence before or during trial. Second, an attorney’s decision to stipulate to evidence and thereby waive his client’s confrontation rights is a legitimate trial tactic and part of a pruden t trial strategy as long as the decision does not constitute in effective assistance of counsel. See Aptt , 354 F.3d at 1284. Nothing in the record suggests that Williams’s attorney had any evidence with which to cross-examine or rebut the laborator y technician, Thus, there was no reason to insist on the technician’s testimony and go od reasons to avoid presenting it. Because Williams’s trial counsel validly waived his confronta tion rights, they cannot now be raised on appeal. See Virgin Islands , 399 F.3d at 290. B. Sentencing Williams also contends that the court clearly erred in calculating his offense level based on the testimony of the confidential in formant because the co urt did not explicitly and affirmatively find that testimony to be credible. We review a District Court’s 4

### 5 sentencing decisions for clear error. See United States v. Perez , 280 F.3d 318, 352 (3d Cir. 2002). The District Court’s characterized the confidential informant’s testimony, regarding amounts and specific dates of drug purchases, as “inc onsistent” but “not entirely non-credible.” Williams argues that th is language should be interpreted to mean that the informant’s testimony contained just the smallest scintilla of credibility. When this remark is considered in its proper cont ext, however, it is evident that the District Court found that, despite containing some in consistencies, the in formant’s testimony was sufficiently credible to sup port the court’s conservative estimate of drug amounts. We conclude that the District Court’s determin ation of Williams’s drug purchase amount was not clearly erroneous. IV. Conclusion For the foregoing reasons, we will affirm Williams’s judgment of conviction and

sentence.