United States Court of Appeals

For the First Circuit

No. 04-1024

UNITED STATES OF AMERICA,

Appellee,

v.

ERNESTO LUCIANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Lipez, and Howard,

Circuit Judges.

William T. Murphy, for appellant, by appointment of the court.

Donald C. Lockhart, Assistant United States Attorney, with

whom Robert Clark Corrente, United States Attorney, and Adi

Goldstein, Assistant United States Attorney, were on brief, for

appellee.

July 8, 2005
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TORRUELLA, Circuit Judge. This appeal focuses on the

district court's finding that defendant-appellant Ernesto Luciano

used a weapon in connection with an assault, triggering a fourlevel sentencing enhancement. Although Luciano pleaded guilty to

one count of being a felon in possession of a firearm, 18 U.S.C.

§ 922(g)(1), during sentencing he objected to the enhancement and

denied using the weapon in connection with an assault.

On appeal, Luciano argues (1) pursuant to Blakely v.

Washington, 124 S. Ct. 2531 (2004), and United States v. Booker,

125 S. Ct. 738 (2005), that his sentence was improperly enhanced

based on facts determined by the district court without a jury; (2)

pursuant to Crawford v. Washington, 541 U.S. 36 (2004), that the

district court's reliance on a witness's out-of-court statement to

determine the enhancing facts violated his rights under the

Confrontation Clause, and (3) that the district court abused its

discretion when, in determining the enhancing facts, it relied on

out-of-court statements of the only witness to the alleged

enhancing crime, without determining that the witness was

unavailable. For the reasons set forth below, we affirm Luciano's

sentence.

I.

On the night of July 30, 2003, Luciano was arguing with

his girlfriend at a bus stop in Providence, Rhode Island. A nearby

teenager, David Camacho, witnessed Luciano pull out a gun and point
1 While Luciano later admitted that he possessed the gun, he

denied the assault.

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it at Luciano's girlfriend.1 Camacho flagged down a police cruiser

driven by Officer Brian Thornton and told Officer Thornton what he

had seen. He told the officer that the perpetrator was dressed all

in orange and pointed to the bus stop where he had seen Luciano.

Officer Thornton approached the area of the bus stop and saw

Luciano, who was dressed in orange. He stopped Luciano and ordered

him to place his hands on his head. As Luciano complied with the

order, he dropped a loaded gun magazine. Officer Thornton then

frisked Luciano and found a fully loaded .22 caliber semi-automatic

pistol.

The Pre-Sentence Report ("PSR") calculated Luciano's

base offense level as 24, pursuant to United States Sentencing

Guidelines (U.S.S.G.) § 2K2.1(a)(2), due to Luciano's two prior

felony drug convictions. In paragraph seventeen, the PSR then

applied a four-level enhancement based on the fact, determined by

the district court judge rather than a jury, that Luciano had used

the weapon in connection with an assault with a deadly weapon. See

U.S.S.G. § 2K2.1(b)(5); R.I. Gen. Laws § 11-5-1(a). After applying

a three-level reduction for acceptance of responsibility, the PSR

concluded that Luciano's total offense level was 25. His ten

criminal history points placed him in criminal history category V.

Thus, the resulting applicable guideline sentencing range ("GSR")
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was 100-125 months. The statutory maximum, however, was 120

months, and the district court sentenced him to the maximum of 120

months.

Two witnesses testified at the sentencing hearing --

Officer Thornton and Julissa Torres, Luciano's girlfriend and the

alleged victim of the assault. The teenage witness, Camacho, did

not testify.

Officer Thornton testified that fourteen-year-old David

Camacho stopped his cruiser on Broad Street in Providence at 9:40

p.m. on July 30, 2003. The defense objected on the basis of

hearsay when the officer began describing what the boy had said.

The court overruled the objection, pointing out that hearsay is

admissible in a sentencing hearing. Thereafter, Officer Thornton

testified that Camacho told him that a man dressed in orange had

pointed a gun at him and at the man's girlfriend. The officer also

described the demeanor of Julissa Torres as crying, upset and

visibly shaken. Officer Thornton testified that as he attempted to

ask Torres questions, Luciano was screaming at her in Spanish from

the back seat of the cruiser. Torres refused to identify herself

and eventually stopped speaking to the officer altogether.

In addition to calling Officer Thornton, the government

offered a detective's report of a statement that Camacho made to

another Providence Police Detective at the police station later

that night. The defense objected that Luciano was not given the
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opportunity to cross-examine Camacho. When the court sought

clarification concerning the ground for the objection, the defense

confirmed that it was a hearsay objection. The government

responded that U.S.S.G. § 6A1.3 allows the admission of hearsay at

sentencing so long as it is sufficiently reliable. The district

court overruled the objection and admitted the report. Later in

the hearing, the defense again objected to the use of Camacho's

statements without his presence for cross-examination, this time

questioning the reliability of the evidence.

The government also offered Camacho's grand jury

testimony into evidence. The defense objected on the ground that

it was hearsay and not sufficiently reliable. The district court

overruled the objection and admitted the exhibit.

Julissa Torres testified that she had known Luciano for

one and a half to two years and is still his girlfriend. They were

on Broad Street in Providence waiting for a bus and were arguing

about a woman who had recently given birth to Luciano's child.

Torres stated that, at that time, there was a group of teenagers

near the bus stop. She also testified that their arguments had

never been physical and that she did not know Luciano had a gun

with him until Officer Thornton searched him. Torres stated that

Luciano never threatened her with a gun and that he had not pointed

a gun at her at the bus stop. She also testified that, while in
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the back of the police cruiser, Luciano was yelling in Spanish that

she should go to his mother's house.

In ruling that the enhancement was warranted, the

district court noted that the defense's objection to Camacho's

statements was that they lacked the necessary indicia of

reliability and therefore should not be taken into account. The

court ruled that there were in fact multiple indicia of the

reliability of the hearsay descriptions of the assault, noted that

Torres had understandable motives to exonerate Luciano, and that

she might not have seen Luciano point the gun at her head if, as

Camacho described, Luciano had pointed the gun at the back of her

head. The district court ultimately concluded that the

government had proven the assault by a preponderance of the

evidence and that the four-level enhancement was proper. After

denying two motions for downward departure, the district court

sentenced Luciano to the statutory maximum of 120 months in prison.

II.

A. Booker

Luciano asserts that he is entitled to resentencing in

light of Blakely and Booker. At the outset, we must determine

whether Luciano has preserved the Booker error. "The argument that

a Booker error occurred is preserved if the defendant below argued

Apprendi or Blakely error or that the Guidelines were

unconstitutional." United States v. Antonakopoulos, 399 F.3d 68,
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76 (1st Cir. 2005). In his supplemental Booker brief, Luciano

claims that the Booker error was preserved by trial counsel's

repeated objections to the use of hearsay testimony to describe the

assault. However, Luciano admits that no reference was made to

Apprendi at the time, nor was the argument made that the Guidelines

are unconstitutional. In addition, the argument that the Booker

error was preserved is contradicted by Luciano's original appellate

brief, in which he acknowledged that he did not raise a Blakelylike claim below and that, consequently, the standard of review on

appeal is plain error. Thus, we find that the Booker error was not

preserved, and we review for plain error. See Antonakopoulos, 399

F.3d at 75.

To prevail under the plain error standard, the appellant

must show: "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001). See also United States v.

Olano, 507 U.S. 725, 731-32 (1993). The first two prongs are

satisfied "whenever defendant's Guidelines sentence was imposed

under a mandatory Guidelines system." Antonakopoulos, 399 F.3d at

77. That is the case here.

However, we "reject[ed] the view that a Blakely [Sixth

Amendment] error automatically requires a Booker remand" for
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resentencing. Id. at 79. The district court's finding of

"additional facts which raised the sentence authorized solely by

the jury verdict or guilty plea . . . is insufficient to meet the

third and fourth Olano prongs on plain-error review." Id. For the

claim to survive plain error review, this court must find a

reasonable probability that advisory Guidelines would have produced

a more favorable sentence. Id. at 78-79.

In this case, it appears very unlikely that the district

court would have sentenced Luciano more leniently under advisory

Guidelines. As it was, the district court rejected two motions for

downward departure, rejected the government's more lenient sentence

recommendation, and sentenced Luciano to the statutory maximum of

120 months out of an applicable guideline sentencing range of 100-

125 months. In so doing, the district court remarked: "In my

judgment, I need to send you away long enough to protect the

citizens of this state and to impress upon you that this sort of

behavior simply will not be tolerated." Thus, while the district

court could have given Luciano a lower sentence under the mandatory

regime, it emphatically chose not to. Luciano has not cited any

additional circumstance which would suggest that the district court

would apply a shorter sentence under advisory Guidelines. Given

Luciano's failure to establish a reasonable probability of a lower

sentence on remand, we find that Luciano's claim fails plain error

review.
2 The Sixth Amendment of the Constitution declares, in relevant

part:

In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses in

his favor, and to have the [a]ssistance of

[c]ounsel for his defen[s]e.

U.S. Const. amend. VI.

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B. Crawford

Luciano argues, pursuant to Crawford v. Washington, 541

U.S. 36 (2004), that his Confrontation Clause rights were violated

as a result of his inability to cross-examine the witness, Camacho,

at the sentencing hearing.2 Specifically, Luciano objects to the

district court's admission of (1) the testimony of Officer Thornton

describing Camacho's assertions, (2) a detective's report of

Camacho's statement at the police station and (3) Camacho's grand

jury testimony. The government offered no evidence showing that

Camacho was unavailable as a witness or demonstrating efforts to

make him available.

As Luciano did not raise this Confrontation Clause or

Crawford-type claim in the proceedings below -- defense objections

were framed as hearsay and reliability objections -- we review for

plain error. See United States v. Montoya, 967 F.2d 1, 2 & n.4

(1st Cir. 1992).

Prior to Crawford, this court held that the Sixth

Amendment right to confront witnesses does not apply at sentencing.
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See United States v. Rodríguez, 336 F.3d 67, 71 (1st Cir. 2003)

("'[A] defendant's Sixth Amendment right to confront the witnesses

against him does not attach during the sentencing phase . . . .'")

(quoting United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.

1992) (collecting cases)). This was also the majority view among

the other circuits. See United States v. Navarro, 169 F.3d 228,

236 (5th Cir. 1999) (holding that "there is no Confrontation Clause

right at sentencing"); United States v. Francis, 39 F.3d 803, 810

(7th Cir. 1994) ("[E]ven with the dramatic changes in the

sentencing process brought about by the Sentencing Guidelines, the

pre-Guidelines policy of allowing sentencing courts to obtain all

relevant sentencing information without the strictures of the right

of confrontation remains intact . . . ."); United States v. Petty,

982 F.2d 1365, 1369-70 (9th Cir. 1993) (collecting cases); United

States v. Silverman, 976 F.2d 1502, 1508-16 (6th Cir. 1992) (en

banc); United States v. Wise, 976 F.2d 393, 401 (8th Cir. 1992) (en

banc) (concluding that "the enactment of the Guidelines has not so

transformed the sentencing phase that it constitutes a separate

criminal proceeding. The right to confront witnesses, therefore,

does not attach."); United States v. Kikumura, 918 F.2d 1084, 1102-

03 & n.21 (3d Cir. 1990).

By its own terms, Crawford does not address whether the

Sixth Amendment right to confront witnesses applies at sentencing.

Crawford concerned "testimonial hearsay" that was introduced at
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trial. 541 U.S. at 68. In Crawford, the Supreme Court held that

out-of-court statements by witnesses that are testimonial are

barred by the Confrontation Clause, unless witnesses are

unavailable and the defendant had a prior opportunity to crossexamine them, regardless of whether such statements are deemed

reliable by the court. Id. Nothing in Crawford requires us to

alter our previous conclusion that there is no Sixth Amendment

Confrontation Clause right at sentencing.

Blakely and Booker do not alter this analysis. In

Blakely, the Supreme Court held that the imposition of a sentencing

enhancement -- based solely on the sentencing judge's factual

findings -- above the range indicated in the State of Washington's

Sentencing Reform Act, violated the defendant's Sixth Amendment

rights, because the facts supporting the findings were neither

admitted by the defendant nor found by a jury beyond a reasonable

doubt. Blakely, 124 S. Ct. at 2537. Luciano argues that Blakely

essentially transformed sentencing enhancements into separate

criminal proceedings during which confrontation rights attach.

However, nothing in Blakely suggests that this result was intended

by the Supreme Court. In addition, when the Supreme Court, in

Booker, considered Blakely in the context of the federal Sentencing

Guidelines, rather than rendering the Guidelines unconstitutional

as some expected it would, or requiring that the Guidelines

sentences be based on facts found by jury or admitted by the
3 While the Supreme Court left for another day "any effort to

spell out a comprehensive definition of 'testimonial,' Crawford,

541 U.S. at 68, the Court noted that "prior testimony at a

preliminary hearing, before a grand jury, or at a former trial; and

[] police interrogations" constitute testimonial hearsay. While

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defendant, the Supreme Court remedied the Sixth Amendment problem

by holding that the U.S. Sentencing Guidelines are advisory.

Booker 125 S. Ct. at 756-57. Therefore, Booker error "is not that

a judge (by a preponderance of the evidence) determined facts under

the Guidelines which increased a sentence beyond that authorized by

the jury verdict or an admission by the defendant; the error is

only that the judge did so in a mandatory Guidelines system."

Antonakopoulos, 399 F.3d at 75. Thus, nothing in Blakely or Booker

necessitates a change in the majority view that there is no Sixth

Amendment right to confront witnesses during the sentencing phase.

See United States v. Martínez, --- F.3d ---, No. 04-2075, 2005 WL

1492079, at *4 (2d Cir. Jun 24, 2005) (holding, post-Booker, that

the Sixth Amendment rights of confrontation do not bar judicial

consideration of hearsay testimony at sentencing proceedings.).

In the alternative, we note that even if Crawford did

apply to sentencing hearings, the initial statement that Camacho

made to Officer Thornton when Camacho flagged down the Officer's

cruiser immediately following the assault does not constitute

"testimonial hearsay" as used in Crawford. Instead, Camacho's

statement appears to be an excited utterance that would qualify for

admission at trial under as a hearsay exception.3 See Fed. R.
the grand jury testimony and detective's report might constitute

testimonial hearsay for purposes of Crawford, assuming arguendo

that the Confrontation Clause applied at sentencing, the excited

utterance of fourteen-year-old Camacho as he flagged down Officer

Thornton immediately following the incident clearly does not fall

within the meaning of testimonial hearsay as it is used Crawford.

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Evid. 803(2) ("Excited utterance. A statement relating to a

startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition.").

C. Reliability and Sufficiency of the Evidence

Finally, Luciano challenges the reliability and

sufficiency of the evidence relied on by the sentencing court in

applying U.S.S.G. § 2K2.1(b)(5). Section 2K2.1(b)(5) provides for

a four-level enhancement "[i]f the defendant used or possessed any

firearm or ammunition in connection with another felony offense."

Due to its finding that Luciano committed assault with a deadly

weapon at the bus stop, the district court applied a four-level

enhancement to Luciano's sentence. Luciano argues that the

government failed to establish by a preponderance of the evidence

that Luciano committed the assault, because the evidence presented

at the sentencing hearing was hearsay and unreliable.

We review the district court's determination of

reliability for an abuse of discretion. United States v. Figaro,

935 F.2d 4, 8 (1st Cir. 1991) ("'[T]he sentencing judge enjoys wide

discretion in determining both the relevance and reliability of the

sentencing information . . . .'") (quoting United States v.
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Iguaran-Palmar, 926 F.2d 7, 10 (1st Cir. 1991)). "At sentencing,

'the court may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability

to support its probable accuracy.'" Tardiff, 969 F.2d at 1287

(quoting U.S.S.G. § 6A1.3(a)).

The standard of review for the district court's finding

that Luciano had committed assault with a deadly weapon is clear

error. "If a party assigns error to a factual finding made at

sentencing, we review the finding for clear error. In doing so, we

ask only whether the court clearly erred in finding that the

government proved the disputed fact by a preponderance of the

evidence." United States v. Powell, 50 F.3d 94, 102-03 (1st Cir.

1995) (internal citation omitted). See also United States v.

Peterson, 233 F.3d 101, 111 (1st Cir. 2000) (reviewing the factual

findings underlying the application of a sentencing enhancement for

clear error).

As we have already noted, Camacho's statement appears to

have all of the authenticity and reliability of an excited

utterance that would qualify as a hearsay exception under Federal

Rule of Evidence 803(2). The facts that Officer Thornton was able

to quickly locate Luciano near the bus stop, identify him due to

the orange clothing Camacho had described, and especially that
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Officer Thornton recovered a gun from Luciano, corroborate

Camacho's statement.

In addition, the girlfriend, Torres, confirmed that she

and Luciano had been fighting just before the incident. Torres

also admitted that she had seen Luciano with a gun in the past.

Finally, although Torres denied that Luciano pointed the gun at

her, the district court cited a logical reason for discounting her

testimony on that point, beyond the fact that she was a biased

witness: Torres likely would not have seen a gun pointed at the

back of her own head.

We therefore find that the district court did not abuse

its discretion in relying on Camacho's statements. See, e.g.,

United States v. Cash, 266 F.3d 42, 44 (1st Cir. 2001) (finding

hearsay statements of defendant's cellmate sufficiently reliable

for purposes of U.S.S.G. § 6A1.3(a) in light of corroborating

information). Moreover, we find that Camacho's statements and the

corroborating evidence provide sufficient basis for the district

court's assault finding. Therefore, there is no clear error.

III.

For the reasons set forth above, Luciano's sentence is

affirmed.