U.S. v. Wallace
Decision Date | 23 May 2005 |
Docket Number | No. 04-1265.,04-1265. |
Citation | 408 F.3d 1046 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Taras WALLACE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
Lee T. Lawless, St. Louis, Missouri, for appellant.
Reginald Harris, Assistant U.S. Attorney, argued, St. Louis, Missouri (Raymond W. Gruender, Jennifer J. Roy, and Allison H. Behrens, on the brief), for appellee.
Before MELLOY, BRIGHT, and BENTON, Circuit Judges.
The government charged Taras Wallace with being a convicted felon in possession of a firearm. Wallace pled guilty pursuant to a plea agreement. Wallace objected to the presentence investigation report's recommendation of a four-level increase for using or possessing a firearm in connection with another felony offense. At sentencing, the district court1 overruled Wallace's objections regarding the government's use of out-of-court statements made by Antionette Jordan, finding the statements reliable. The district court applied the four-level increase and sentenced Wallace to 110 months imprisonment. Wallace appeals and argues the district court erred in using hearsay evidence in accessing an upward adjustment, violated his right of confrontation in using the hearsay evidence to enhance his offense level, and committed plain error in sentencing him in violation of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm.
The government charged Wallace with being a convicted felon in possession of a firearm. Wallace pled guilty pursuant to a plea agreement. The presentence investigation report recommended a four-level increase because Wallace possessed or used the firearm in connection with another felony offense. Wallace objected to the presentence investigation report's recommendation of the four-level increase.
At sentencing, Officer Michael Stewart testified that Antionette Jordan told him that Wallace choked her and struck her in the back of the head with a firearm. The government presented a copy of Jordan's written statement that she prepared in the presence of Detective James Lisziewski of the Domestic Abuse Response Team. Jordan's written statement noted that Wallace hit her in the back of the head with a gun. The government also played Jordan's 911 call for the district court. Jordan did not attend sentencing.
The district court overruled Wallace's objections and found the out-of-court statements Jordan made were reliable and Wallace used or possessed the firearm in connection with a felony assault. The district court added the four-level increase finding Wallace used or possessed a firearm in connection with a felony offense. The district court granted Wallace a three-level reduction for acceptance of responsibility. The district court then sentenced Wallace to a 110-month term of imprisonment. Wallace appeals.
Wallace argues the district court erred in using hearsay evidence in sentencing him and accessing the four-level increase. As a "general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (quotations omitted). The commentary in the Sentencing Guidelines expressly allows reliable hearsay evidence at sentencing, and courts have concluded hearsay is admissible in sentencing as long as it bears some indicia of reliability. United States v. Shevi, 345 F.3d 675, 679 (8th Cir.2003) (, )cert. denied, 540 U.S. 1166, 124 S.Ct. 1182, 157 L.Ed.2d 1214 (2004).
Here, the district court heard the following hearsay evidence at sentencing: Jordan's 911 call, Jordan's victim statement form, and Jordan's sworn grand jury testimony. In all of these statements Jordan asserted Wallace had hit her in the head with a firearm. In addition to the above evidence, the government presented Officer Stewart's testimony (regarding Jordan's statement that Wallace hit her on the head with a firearm) and a photograph of Jordan showing marks around her neck. We affirm, because all of this evidence has an indicia of reliability. See United States v. Williams, 10 F.3d 910, 914 (1st Cir.1993) ( ); United States v. Corbin, 998 F.2d 1377, 1386-87 (7th Cir.1993) ( ); United States v. Farnsworth, 92 F.3d 1001, 1010 (10th Cir.) (, )cert. denied, 519 U.S. 1034, 117 S.Ct. 596, 136 L.Ed.2d 524 (1996).
Wallace next argues the district court violated his right of confrontation by using out-of-court statements to enhance his offense level. This court has determined that the confrontation clause does not apply in sentencing proceedings. See United States v. Due, 205 F.3d 1030, 1033 (8th Cir.2000). As long as the out-of-court information relative to the circumstances of the crime bears an indicia of reliability, then the sentencing court can consider it without providing the defendant with a right to confrontation. United States v. Atkins, 250 F.3d 1203, 1212-13 (8th Cir.2001) ( ). As noted above, the information the district court relied on has an indicia of reliability. No error is shown on this issue.
Finally, Wallace argues the district court violated Booker in enhancing his offense level by finding he used or possessed the firearm in connection with a felony assault. Wallace objected to the facts underlying the Booker issue (that the district court relied on unreliable, hearsay evidence in finding he used a weapon in the commission of another offense). Wallace's objection did not...
To continue reading
Request your trial-
United States v. Con-Ui
...not apply at sentencing. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079 (1949); Umana, 750 F.3d at 346; United States v. Wallace, 408 F.3d 1046, 1048 (8th Cir.2005). See also United States v. Petty, 982 F.2d 1365, 1367 (9th Cir.1993); United States v. Tardiff, 969 F.2d 1283, 1287 (1s......
-
U.S. v. Beiermann
...of a non-capital case that `the confrontation clause does not apply in sentencing proceedings.'") (quoting United States v. Wallace, 408 F.3d 1046, 1048 (8th Cir.2005) (per curiam), cert. denied, 546 U.S. 1069, 126 S.Ct. 816, 163 L.Ed.2d 642 (2005)). Thus, the court finds no "constitutional......
-
United States v. Coonce
...the question of whether it applies in capital sentencing proceedings. See Johnson , 495 F.3d at 976 n.23 (quoting United States v. Wallace , 408 F.3d 1046, 1048 (8th Cir. 2005) ). Numerous circuits have found that the Confrontation Clause does not apply in capital sentencing proceedings, ci......
-
U.S. v. Johnson
...reiterated the general proposition that "the confrontation clause does not apply in sentencing proceedings." United States v. Wallace, 408 F.3d 1046, 1048 (8th Cir.2005) (citing United States v. Due, 205 F.3d 1030, 1033 (8th Cir.2000), in a decision on appeal of sentencing on a charge of be......