414 F.

3d 174

UNITED STATES of America, Appellee,

v.
Ernesto LUCIANO, Defendant, Appellant.
No. 04-1024.

United States Court of Appeals, First Circuit.

Heard January 4, 2005.
Decided July 8, 2005.

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.
Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.
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, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, ___
U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 124 S.Ct. 1354, 158
L.Ed.2d 177 (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.
3

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 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")
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.
7

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 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 the back of the police cruiser, Luciano was yelling in
Spanish that she should go to his mother's house.

10

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
11

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, 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 Blakely-like 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.

12

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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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.

13

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

automatically requires a Booker remand" for 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.

14

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.
B. Crawford
15

Luciano argues, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177 (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.

16

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).

17

Prior to Crawford, this court held that the Sixth Amendment right to confront
witnesses does not apply at sentencing. See United States v. Rodriguez, 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 preGuidelines 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).
18

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 trial. 541 U.S. at 68, 124 S.Ct.
1354. 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.

19

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 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. Martinez, 413 F.3d 239, 242 (2d Cir.2005) (holding,

post-Booker, that the Sixth Amendment rights of confrontation do not bar

judicial consideration of hearsay testimony at sentencing proceedings.).
20

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.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.").

21

C. Reliability and Sufficiency of the Evidence

22

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.

23

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.
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)).

24

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).
25

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
Officer Thornton recovered a gun from Luciano, corroborate Camacho's
statement.

26

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.

27

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.
28

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

Notes:
1

While Luciano later admitted that he possessed the gun, he denied the assault

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.
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, 124 S.Ct.
1354, 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 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.