                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                June 16, 2006
                               No. 05-16252                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 03-80029-CR-DTKH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

RODNEY TAYLOR,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (June 16, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

     A Southern District of Florida grand jury indicted Rodney Taylor, a
convicted felon, for possession of a .25 caliber semi-automatic pistol from

December 28, 2002 through February 21, 2003, (Count 1), and possession of .25

caliber ammunition (Count 2), both counts in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e). The Government thereafter filed a notice of intent to rely on the

penalty enhancement contained in 18 U.S.C. § 924(e)(1), citing three second

degree felonies: robbery convictions dated July 13, 2001, and April 2, 2002, and a

drug conviction dated July 13, 2001.

       A jury found Taylor guilty as charged, and the court, after finding (on the

basis of evidence adduced at the sentencing hearing) that Taylor had murdered

Hermanth Rao on February 1, 2003 using the Count 1 pistol, sentenced Taylor to

life imprisonment on Count 1.1 After we vacated the life sentence and remanded

the case for resentencing in conformance with United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court held a new

sentencing hearing. Without objection, the court adopted the record of the

previous sentencing hearing – including its finding that Taylor had murdered Rao

on February 1, 2003 – and gave Taylor an opportunity to present additional

evidence. Then, after the evidentiary record closed, the court afforded him his

right of allocution.


       1
         The court properly treated the Count 2 conviction as having merged into the Count 1
conviction.

                                               2
      The court sentenced Taylor to prison for life. It did so after consulting the

Guidelines, treating them as advisory, and considering the sentencing factors set

out in 18 U.S.C. § 3553(a), all as required by Booker. Taylor now appeals his

sentence.

      The presentence report (“PSI”), prepared pursuant to the 2003 Guidelines

Manual, applied U.S.S.G. § 2K2.1, the guideline applicable to § 922(g) offenses.

That guideline provides that if the defendant used or possessed any firearm or

ammunition in connection with the commission or attempted commission of

another offense, and if death resulted, the court must apply “the most analogous

offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

offense level is greater than that determined above.” U.S.S.G. § 2K2.1(c)(1)(B)

(Cross Reference). The guideline for homicide fixes the base offense level for first

degree murder at 43. See U.S.S.G. § 2A1.1(a). Taylor was an armed career

criminal, but because the offense level prescribed by § 2A1.1(a), 43, was greater

than the level prescribed for armed career criminals, the offense level remained at

43. Taylor used the Count 1 firearm in connection with a crime of violence – he

murdered Hermanth Rao on February 1, 2003 – so his criminal history increased to

category VI, pursuant to U.S.S.G. § 4B1.4(c)(2). Total offense level 43, coupled

with category VI, yielded an imprisonment range of life.



                                          3
      In his brief, Taylor contends that the Due Process Clause precluded the court

from considering his murder of Rao under U.S.S.G. § 2A1.1(a) because the

indictment did not charge him with murder. The law-of-the-case doctrine

forecloses this contention. In vacating Taylor’s previous sentence, we instructed

the court to comply with Booker’s dictates. Booker instructs that the sentencing

court consult the Guidelines, and, as Taylor must concede, the district court did just

that. As a fall-back argument, Taylor says that due process precluded the court

from making its murder finding by a preponderance of the evidence. Our cases

foreclose this argument. See e,g,, United States v. Duncan, 400 F.3d 1297, 1304-

05 (11th Cir.), cert. denied, ___ U.S. ____, 126 S.Ct. 432 (2005). Taylor next

challenges the court’s use of hearsay in finding that Taylor murdered Rao, citing

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). Crawford does not

apply to hearsay evidence offered at sentencing hearings. United States v.

Castellano, 430 F.3d 1142, 1146 (11th Cir. 2005) (admission of hearsay and

documentary evidence at defendant’s sentencing hearing to prove his prior

convictions did not violate the Sixth Amendment).

      Taylor’s final argument is one that he did not present to the district court;

hence, we review it for plain error. The argument is that the court improperly

increased Taylor’s criminal history category on the basis of the Rao murder. We



                                          4
find no error, much less plain error, in the court’s use of that evidence in assessing

the defendant’s potential for recidivism, i.e., the service performed by the criminal

history category.

      Taylor’s sentence is

      AFFIRMED.




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