* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 5, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10107

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD EARL LEATCH, also known as Low Down,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:03-CR-78-3-N

--------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

Edward Earl Leatch pleaded guilty to conspiracy to

distribute and possess with intent to distribute 50 grams or more

of cocaine base, and he was sentenced to 168 months in prison. 

Leatch argues that under Crawford v. Washington, ___ U.S. ___,

124 S. Ct. 1354 (2004), his Confrontation Clause right was

violated during his sentencing proceeding. Crawford involved a

defendant’s right under the Confrontation Clause during his

criminal trial. 124 S. Ct. at 1356-58. “[T]here is no
No. 04-10107

-2-

Confrontation Clause right at sentencing.” United States v.

Navarro, 169 F.3d 228, 236 (5th Cir. 1999). Nothing in Crawford

indicates that its holding is applicable to sentencing

proceedings. Accordingly, Leatch’s Crawford-based argument lacks

merit.

Leatch also argues that the district court erred in

determining the drug quantity attributable to him. Leatch

asserts that the drug quantities sold by his co-conspirators

could not have been reasonably foreseeable to him. The record

shows that Leatch and his co-conspirators belonged to a gang who

sold drugs openly on the street and who controlled the block

where they sold drugs. The information contained in the PSR,

which was unrebutted by Leatch, was corroborated by police

surveillance and undercover drug buys. The district court did

not clearly err in determining the drug quantity attributable to

Leatch. See U.S.S.G. § 1B1.3(a)(1)(B); United States v. Peters,

283 F.3d 300, 314 (5th Cir. 2002); United States v. Wilson, 116

F.3d 1066, 1077 (5th Cir. 1997), vacated in part on other grounds

sub nom. United States v. Brown, 161 F.3d 256, 256 n.1 (5th Cir.

1998) (en banc); United States v. Buchanan, 70 F.3d 818, 834 (5th

Cir. 1995). 

Finally, Leatch argues that the district court erred in

increasing his offense level by two pursuant to U.S.S.G.

§ 2D1.1(b)(1) based on the finding that he possessed a firearm in

connection with a drug-trafficking offense. The PSR stated that
No. 04-10107

-3-

several weapons were recovered from the area where Leatch’s gang

sold drugs and that all of the gang members were aware that guns

were present, in and around the area where they sold drugs, as

protection for the drugs and the drug proceeds. At sentencing,

Leatch did not dispute that any of his co-conspirators possessed

firearms in connection with their drug-trafficking activity. Nor

did he dispute that there were weapons stashed nearby during the

street deals or that all of the gang members knew of their

presence and availability. Thus, the district court did not

clearly err in increasing Leatch’s offense level by two under

§ 2D1.1(b)(1). See United States v. Devine, 934 F.2d 1325, 1339

(5th Cir. 1991); United States v. Mir, 919 F.2d 940, 943 (5th

Cir. 1990); United States v. Aguilera-Zapata, 901 F.2d 1209, 1215

(5th Cir. 1990).

AFFIRMED.