                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 20, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-41123
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GILBERT LAMAS,

                                      Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 6:03-CR-98-ALL
                         --------------------

Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gilbert Lamas appeals from his guilty-plea convictions for

being a felon in possession of a firearm (“Count 1”) and

possession of firearms in furtherance of a drug-trafficking crime

(“Count 3”).   Lamas argues that, for Count 1, the use of his

prior state conviction in determining his base offense level and

his criminal history category constitutes impermissible double

counting.   He concedes that his argument is foreclosed by United

States v. Hawkins, 69 F.3d 11, 15 (5th Cir. 1995), but raises the


     *
       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this opinion should not be published and is not precedent except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.
                           No. 04-41123
                                -2-

issue to preserve it for potential Supreme Court review.    Because

this issue is foreclosed, it does not warrant relief.

     Lamas contends that the district court clearly erred by

applying U.S.S.G. § 2K2.1(c)(1)(B) to cross-reference his offense

in Count 1 to U.S.S.G. § 2A1.1(a), which is the guideline for

first-degree murder, because there was insufficient evidence

supporting that cross-reference.   Examination of the record shows

that, because the evidence linking Lamas to the drive-by shooting

was sufficiently reliable and was not rebutted by Lamas, the

district court did not err in adopting that evidence.   See United

States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).     Based

on that evidence, the district court did not clearly err by

applying the cross-reference provision in U.S.S.G.

§ 2K2.1(c)(1)(B).   See United States v. Angeles-Mendoza,

__F.3d__, No. 04-50118, 2005 WL 950130 at *2 (5th Cir. Apr. 26,

2005).

     Lamas argues that, because the fact that he possessed a

firearm in furtherance of a drug-trafficking crime was not proved

beyond a reasonable doubt, his sentence for Count 3 violated his

Sixth Amendment rights under Blakely v. Washington, 124 S. Ct.

2531 (2004), because it increased his sentence beyond the

statutory maximum for Count 1.   That argument lacks merit.    See

United States v. Hicks, 389 F.3d 514, 532 (5th Cir. 2004).

     Lamas also argues that the testimonial evidence presented at

his sentencing hearing included hearsay evidence that was
                            No. 04-41123
                                 -3-

insufficiently reliable due to the lack of corroborating evidence

and that the admission of that hearsay evidence violated his

rights under the Confrontation Clause.     Lamas correctly concedes

that this court has held that “[t]here is no Confrontation Clause

right at sentencing.”    United States v. Navarro, 169 F.3d 228,

236 (5th Cir. 1999).    Moreover, as the evidence had a

sufficiently reliable basis, the district court did not err in

considering that evidence at sentencing.    U.S.S.G. § 6A1.3(a).

     Lamas contends that the sentencing court’s failure to order

the production of Lamas’s brother’s statement upon Lamas’s motion

violated FED. R. CRIM. P. 26.2(a).   However, because Lamas’s

brother was not a testifying witness at the sentencing hearing,

there was no violation of FED. R. CRIM. P. 26.2(a).

     The district court’s judgment of conviction is AFFIRMED.
