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The Honorable George Howard, Jr., United States District Judge for the

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1492

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United States of America,

Appellee,

v.

Kenneth Ray Irvin,

Appellant.

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Appeal from the United States

District Court for the

Eastern District of Arkansas.

 [UNPUBLISHED]

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Submitted: March 16, 2007

 Filed: March 22, 2007

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Before COLLOTON, HANSEN, and GRUENDER, Circuit Judges. 

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PER CURIAM.

Kenneth Ray Irvin appeals the 312-month sentence imposed by the district

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 following his plea of guilty to violations of 21 U.S.C. §§ 841(a)(1) and 846.

We affirm. 

The district court adopted the recommendations contained in the Presentence

Investigation Report (PSR) and calculated an advisory Guidelines range of 262 to 327
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months. Irvin made no objections to the PSR. Prior to the sentencing hearing, Irvin

submitted a sentencing memorandum, to which he attached five character letters. At

the sentencing hearing, the government called a detective involved with the

investigation of Irvin's case, who testified about the background of the case leading

up to Irvin's arrest. Most of the detective's testimony corroborated information

contained in the PSR. In addition, the detective testified that Irvin had forcibly

performed a body cavity search on a woman whom he thought stole drugs from him

and had pistol-whipped her companion who attempted to intervene. The detective

received this information from the victim of the body cavity search, as well as from

the confidential informant who ultimately led the detectives to Irvin. Irvin did not

object to the detective's testimony, and his counsel cross-examined the detective.

Irvin asked for a sentence at the bottom of the advisory range of 262 to 327 months,

and the district court sentenced him to 312 months of imprisonment. Irvin claims on

appeal that the district court erred in determining his sentence by relying on irrelevant

and unreliable hearsay evidence from the detective.

Because Irvin did not object to the detective's testimony, we review his claim

for plain error. See United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005);

United States v. Pirani, 406 F.3d 543, 550 (8th Cir.) (en banc) (plain error standard

of review), cert. denied, 126 S. Ct. 266 (2005). The Federal Rules of Evidence, with

the exception of the privilege rules, do not apply to sentencing proceedings. Fed. R.

Evid. 1101(d)(3); see also United States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992)

(en banc) ("Uncorroborated hearsay evidence is a proper topic for the court's

consideration, as long as the defendant is afforded an opportunity to explain or rebut

the evidence." (internal marks omitted)), cert. denied, 507 U.S. 989 (1993). Thus, a

sentencing judge may base his sentencing decision on relevant hearsay evidence "if

it is accompanied by sufficient indicia of reliability to support the conclusion that it

is probably accurate." Sharpfish, 408 F.3d at 511. The detective who provided the

hearsay evidence was involved in investigating Irvin's case, and he testified that both

the victim of the body cavity search and the confidential informant gave consistent
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statements about Irvin's behavior. The evidence was certainly relevant to the district

court's consideration of Irvin's history and characteristics under 18 U.S.C.

§ 3553(a)(1), particularly in light of the character letters submitted by Irvin. Given

the state of the record, we cannot say the district court plainly erred in considering the

unobjected to hearsay evidence when it determined Irvin's sentence. 

Irvin does not contest the district court's calculation of the advisory Guidelines

range. We review his ultimate sentence for reasonableness, United States v. Booker,

543 U.S. 220, 261 (2005), and we find nothing to suggest that the district court acted

unreasonably in sentencing Irvin toward the top end of the advisory Guidelines range.

The district court's judgment is affirmed.

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