                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       February 8, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 04-6371
v.                                            (Western District of Oklahoma)
                                                (D.C. No. CR-04-78-1-R)
EXSAVIOR ANTWAN PHILLIPS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.




      After examining the briefs and the appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is,

therefore, ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.    INTRODUCTION

      ExSavior Antwan Phillips pleaded guilty to one count of coercion of a

person under age eighteen to engage in a sexual act. At sentencing, the United

States District Court for the Western District of Oklahoma applied the United

States Sentencing Guidelines (“Guidelines” or “USSG”) in a mandatory fashion.

The court determined Phillips was subject to four enhancements and an upward

departure, and sentenced him to 125 months’ imprisonment. On appeal, Phillips

argues the court erred when it applied the Guidelines in a mandatory fashion and

when it enhanced his sentence based on judge-found facts. Phillips also alleges

the district court erred by relying upon hearsay testimony to support his sentence

enhancements. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm

the judgment of the district court.

II.   BACKGROUND

      On May 5, 2004, a grand jury indicted Phillips on four counts arising from

his alleged involvement in activities related to prostitution in the Oklahoma City

area. On June 1, 2004, a seven-count superseding indictment charged Phillips

with additional related offenses. Phillips pleaded guilty to count three of the

indictment. Count three charged that, on or about March 31, 2003, Phillips used a

hotel in Oklahoma City to knowingly induce and attempt to induce an individual




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under the age of eighteen to engage in prostitution, in violation of 18 U.S.C. §§

2422(b) and 2.

      A probation officer prepared a Presentence Investigation Report (“PSR”),

which recommended that Phillips receive certain sentence enhancements based on

the specific characteristics of his offense. In addition to the sentencing

enhancements, the PSR noted Phillips’ case could warrant upward departure under

the Guidelines because Phillips had three cases pending in Oklahoma County at

the time he committed his offense. Phillips objected to three of the recommended

sentence enhancements contained in the PSR and to the PSR’s suggested upward

departure.

      At the sentencing hearing, special agent Michael Beaver of the FBI testified

as to Phillips’ involvement with prostitution activities. Beaver based his

testimony on information he gathered through interviews with prostitutes who had

worked for Phillips, tape-recordings of telephone conversations between Phillips

and his prostitutes, and cell phone records.

      Beaver explained his investigation revealed Phillips was a pimp who

recruited, employed, and managed juvenile prostitutes. He told the court Phillips

used certain prostitutes as managers in his enterprise. Phillips’ managing

prostitutes were responsible for collecting money, enforcing rules, and recruiting

and training “line-level” prostitutes.


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      Beaver described an incident in which Phillips recruited a homeless

juvenile girl, T.D., to work for him as a prostitute. He explained that Phillips and

a managing prostitute took the girl to dinner, discussed how much money she

could make, and showed her rolls of cash. After successfully recruiting T.D.,

Beaver alleged Phillips took away her cell phone, provided her with a fanny pack

filled with condoms, diaper wipes, and hand sanitizer, and transported her to a

truck stop where she could begin to work as a prostitute. Beaver testified that

Phillips had also used a managing prostitute to recruit a juvenile girl from a hotel

in Oklahoma City.

      Beaver further alleged Phillips used violence to control prostitutes. He

noted Phillips and another pimp had once arranged for the physical assault of a

prostitute in the back seat of a car. Beaver described a recorded and transcribed

phone conversation between Phillips and a juvenile prostitute in which Phillips

told the prostitute he was going to torture, choke, and hit another of his

prostitutes. Beaver also informed the court that three other criminal cases—two

involving firearms and one involving an assault—were pending against Phillips

on the date he committed his offense.

      After Beaver’s testimony, the district court concluded Phillips (1) used

violence or coercion in the course of his prostitution enterprise; (2) unduly

influenced a minor to engage in a commercial sex act; and (3) was the leader or


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organizer in a criminal activity. Overruling Phillips’ objections, the court

imposed sentence enhancements based on each of these conclusions. Noting that

Phillips committed his offense when other criminal charges were pending against

him, the court also upwardly departed, moving Phillips from criminal history

category III to category IV. The court sentenced Phillips to a term of 125

months’ imprisonment, the high end of the Guidelines range. The district court

stated it would sentence Phillips in an identical fashion in the event the

Guidelines were declared unconstitutional, noting its belief that the sentence

imposed was “fair and appropriate.” ROA at 107.

III.   DISCUSSION

A.     Constitutional Booker Error

       Phillips contends the district court committed constitutional Booker error

when it applied the Guidelines in a mandatory fashion and enhanced his sentence

on the basis of judge-found facts. United States v. Booker, 125 S. Ct. 738,

750–56 (2005). At the sentencing hearing, the district court found facts regarding

Phillips’ use of violence, his exertion of undue influence on a minor, his role as a

leader in a criminal enterprise, and his criminal history. The court used these

facts to increase Phillips’ sentence beyond the maximum sentence that would have

been imposed on the basis of the facts admitted by Phillips in his guilty plea.

Accordingly, we conclude the district court committed constitutional Booker


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error. See United States v. Gonzales-Huerta, 403 F.3d 727, 731 (10th Cir. 2005)

(en banc) (defining constitutional Booker error).

      Because Phillips asserted an objection in the district court based on the

Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296 (2004), he

preserved his Booker argument for appeal. United States v. Clifton, 406 F.3d

1173, 1175 n.1 (10th Cir. 2005). When confronted with a preserved constitutional

Booker error, this court applies a harmless error standard. 1 United States v.

Waldroop, 431 F.3d 736, 743 (10th Cir. 2005). “[T]he government bears the

burden of proving beyond a reasonable doubt that the error was harmless.” Id.

      In conducting a harmless error analysis, this court considers whether “the

district court would have imposed a less severe sentence in the exercise of [its]

post-Booker discretion.” United States v. Riccardi, 405 F.3d 852, 876 (10th Cir.

2005). In the course of this evaluation, we have noted that when a district court

judge sentenced a defendant to the top of the applicable Guidelines range in a pre-

Booker context, “there is no reason to think the judge would exercise his now-

greater discretion to reduce the sentence.” Id.; see also Waldroop, 431 F.3d at

743 (noting district court imposed highest possible sentence upon defendant and



      1
       Phillips argues the district court’s constitutional Booker error constitutes
structural error. This argument is foreclosed by circuit precedent. See United
States v. Dowlin, 403 F.3d 647, 668–69 (10th Cir. 2005) (holding constitutional
Booker error is not structural error).

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concluding court would not reduce sentence on remand). We have also expressed

confidence that a district court would impose the same sentence on remand when

the court consulted the Guidelines, adopted the recommendations contained in the

PSR, and imposed an identical alternative sentence. United States v. Corchado,

427 F.3d 815, 821 (10th Cir. 2005). Moreover, when determining whether a

district court would impose a less severe sentence on remand, this court has also

taken into account critical comments made by the court and directed at the

defendant. See Waldroop, 431 F.3d at 743 (observing that the district court

voiced its disapproval of defendant’s greed at sentencing).

      In the instant case, all of the foregoing factors are present. The district

court sentenced Phillips to the top of the applicable Guidelines range. It imposed

an identical alternative sentence, and described that sentence as “fair and

appropriate.” 2 ROA at 107. Moreover, the court’s comments to Phillips, made



      2
       The district court in this case did not reference explicitly the advisory
Guidelines and the statutory sentencing factors listed in 18 U.S.C. §3553(a), as
suggested in United States v. Booker. 125 S. Ct. 738, 756–57 (2005). It is
nonetheless apparent that the court relied upon the Guidelines and the findings
contained in the PSR to arrive at its sentencing decision. In this context, we are
confident the district court’s alternative sentence reliably indicates that the court
would not impose a less severe sentence on remand. See United States v.
Corchado, 427 F.3d 815, 821 (10th Cir. 2005) (finding non-constitutional Booker
error harmless when district court did not specifically use sentencing
methodology suggested by Booker, but when reviewing court knew “the court
consulted the Guidelines and adopted the findings in the PSR, which analyzed
several of the factors set forth in 18 U.S.C. § 3553(a).”).

                                         -7-
just before imposing sentence, indicate it was not inclined toward leniency. The

court stated that Phillips’ criminal history led it to conclude Phillips was “a young

man that’s completely out of control and, frankly, a danger to society.” ROA at

104. Addressing Phillips, the court said, “I’m sorry. You had an opportunity and

you blew it and I think society needs to be protected from you.” Id. All evidence

in the record indicates the district court would not reduce Phillips’ sentence on

remand. Accordingly, we hold the district court’s constitutional Booker error was

harmless beyond a reasonable doubt.

B.    Confrontation Clause

      Phillips alleges the district court violated his Sixth Amendment right to

confront the witnesses against him when the court relied on hearsay testimony to

support its sentencing decision. This court reviews de novo a district court’s legal

conclusions concerning the Confrontation Clause. United States v. Montague,

421 F.3d 1099, 1102 (10th Cir. 2005).

      Phillips contends Agent Beaver offered hearsay testimony at his sentencing

hearing and alleges the district court relied on this testimony to support its

decision to enhance his sentence. He concedes courts of appeal have long

accepted hearsay testimony in sentencing hearings. Phillips argues, however, that

the Supreme Court’s recent Confrontation Clause case, Crawford v. Washington,




                                         -8-
541 U.S. 36 (2004), changed the standard of admissibility for hearsay in

sentencing proceedings.

      In Crawford, the Supreme Court departed from existing precedent and held

that the Sixth Amendment precludes testimonial hearsay evidence unless the

declarant is unavailable and the defendant had a previous opportunity to

cross-examine the declarant. 541 U.S. at 68. Crawford represents a “fundamental

shift” in Confrontation Clause jurisprudence. United States v. Solomon, 399 F.3d

1231, 1237 n.2 (10th Cir. 2005). It in no way suggests, however, that we must

alter the standard of admissibility for hearsay evidence in sentencing proceedings.

Thus, our established rule on that subject remains unchanged in the wake of

Crawford. This court has determined the Confrontation Clause does not apply at

noncapital sentencing proceedings under the Guidelines. United States v.

Hershberger, 962 F.2d 1548, 1554 (10th Cir. 1992); see also United States v.

Beaulieu, 893 F.2d 1177, 1180 (10th Cir. 1990) (noting sentencing judge may

consider reliable hearsay evidence). The district court, therefore, did not err

when it used reliable hearsay testimony from Agent Beaver to assist it in

determining an appropriate sentence for Phillips.

IV.   CONCLUSION

      For the foregoing reasons, we affirm the judgment of the United States

District Court for the Western District of Oklahoma.


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ENTERED FOR THE COURT



Michael R. Murphy
Circuit Judge




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