2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-2007

USA v. Robinson

Precedential or Non-Precedential: Precedential

Docket No. 05-5330

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Recommended Citation

"USA v. Robinson" (2007). 2007 Decisions. Paper 1038.

http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1038
 

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-5330

 

UNITED STATES OF AMERICA

 v.

SHAWN ROBINSON,

 Appellant.

___________________

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 04-cr-00421

District Judge: Hon. Jerome B. Simandle

____________________

Submitted under Third Circuit LAR 34.1(a)

 February 27, 2007
2

Before: McKEE and ALDISERT, Circuit Judges, and

 RESTANI,* Judge

(Filed: March 5, 2007)

Christopher J. Christie, Esquire

United States Attorney

George S. Leone, Esquire

Chief, Appeals Division

Caroline A. Sadlowski, Esqire

Assistant United States Attorney

970 Broad Street

Newark, New Jersey 07102

Counsel for Appellee

John F. Renner, Esquire

Pavilions at Greentree, Suite 401

12000 Lincoln Drive

Marlton, New Jersey 08053

Counsel for Appellant

_________________

 * The Honorable Jane A. Restani, Chief Judge, U.S. Court of

International Trade, sitting by designation.
3

 

OPINION

 

ALDISERT, Circuit Judge.

On May 4, 2005, Shawn Robinson pleaded guilty to 10

counts of cocaine possession with the intent to distribute. See

21 U.S.C. § 841(a)(1), (b)(1)(C). The District Court for the

District of New Jersey sentenced Robinson to 150 months’

imprisonment and three years’ supervised release. Robinson

now appeals his punishment. He contends that the use of

hearsay evidence at his sentencing hearing violated his Sixth

Amendment right to confront his accusers. We conclude that

Appellant’s argument lacks merit and, accordingly, we will

affirm the judgment of the District Court.

I.

During a 10-month police investigation in Penns

Grove, New Jersey, Robinson sold undercover informants

approximately 167 grams of cocaine and 62 grams of crack

cocaine. Robinson was subsequently arrested and charged

with a twelve-count indictment. In May of 2005, he signed a

plea agreement; the government dropped two charges of crack

cocaine possession and Robinson pleaded guilty to 10 counts

of cocaine possession with intent to distribute. 
4

At the sentencing hearing, to the surprise of the

prosecutor, Robinson claimed that he was set up by the

government. He insisted that he only sold drugs to the

undercover informant, and only as a result of the informant’s

prodding. To rebut this contention, Sergeant Brian Facemyer

of the Salem County Narcotics Task Force presented hearsay

testimony that Robinson sold drugs to at least seven different

buyers. Facemyer explained that seven of Robinson’s regular

customers provided taped, sworn statements admitting they

had purchased cocaine from Robinson. Based on their

admissions, six of the buyers then pleaded guilty to drugrelated offenses. 

Concerned about his credibility, Robinson challenged

the introduction of Facemyer’s hearsay testimony. Appellant

argued that under the Sixth Amendment’s Confrontation

Clause he had the right to cross-examine the seven individuals

who accused him of dealing cocaine. The Confrontation

Clause guarantees that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. amend. VI. To support

his position, Robinson cited Crawford v. Washington, 541

U.S. 36 (2004), a Supreme Court case that examines the Sixth

Amendment right to confront accusers at trial. The District

Court rejected Appellant’s argument and considered

Facemyer’s testimony in fashioning Robinson’s sentence.

Robinson now appeals.
5

II.

This case asks us to decide if the Sixth Amendment’s

Confrontation Clause prevents the government from

introducing hearsay evidence during sentencing hearings. Put

another way: do criminal defendants have the right to crossexamine out-of-court witnesses during the sentencing phase? 

The law on this issue is well settled. Both the Supreme Court

and this Court of Appeals have determined that the

Confrontation Clause does not apply in the sentencing context

and does not prevent the introduction of hearsay testimony at

a sentencing hearing. See Williams v. Oklahoma, 358 U.S.

576, 584 (1959); United States v. Kikumura, 918 F.2d 1084,

1099-1100 (3d Cir. 1990) (holding that the Confrontation

Clause only applies at trial, not sentencing). 

Robinson makes a valiant attempt to outflank the clear

precedent of this Court. He argues that the Supreme Court’s

recent decision in Crawford v. Washington mandates that we

reevaluate how the Sixth Amendment applies to sentencing.

We disagree. In Crawford, the Supreme Court held that in a

criminal trial the Confrontation Clause prohibits

consideration of out-of-court testimonial statements, unless

the witness is unavailable and the defendant has had a

previous opportunity to conduct cross-examination. See 541

U.S. at 68. Crawford, however, never applies its rule to

sentencing; nowhere does the decision refer to sentencing

hearings. Crawford, therefore, provides no platform to

reverse prior Supreme Court decisions that expressly allow

the introduction of hearsay evidence in the sentencing
We also note that none of our sister Courts of Appeals have 1

interpreted Crawford to apply to sentencing hearings. See

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

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

United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005);

United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005).

6

context. 

1

Prosecutors, of course, may not introduce any and all

hearsay testimony at a sentencing proceeding. The admission

of hearsay statements in the sentencing context is subject to

the requirements of the Due Process Clause. Under the

precedent of this Court, hearsay statements must have some

“minimal indicium of reliability beyond mere allegation.” 

Kikumura, 918 F.2d at 1102 (citations omitted); see also

U.S.S.G. § 6A1.3(a) (courts may consider any evidence at

sentencing “provided that the information has sufficient

indicia of reliability to support its probable accuracy”). The

evidence offered by the Government through the testimony of

Sergeant Facemyer easily passes this test. The District Court

noted that Facemyer’s testimony was supported by audiotapes

of Robinson talking with his buyers and taped sworn

statements of those buyers admitting they purchased cocaine

from Robinson on multiple occasions. Considering the

footprint left by this evidence, the District Court’s decision to

allow the hearsay testimony was warranted. Accordingly, we

affirm the sentence imposed by the District Court. 
7

* * * * * *

For the reasons detailed above, we will affirm the

judgment of the District Court.