                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2006

USA v. Boyd
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1966




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"USA v. Boyd" (2006). 2006 Decisions. Paper 1401.
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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-1966


                          UNITED STATES OF AMERICA

                                           v.

                                    JESSE BOYD,
                                      a/k/a Jet,

                                                      Jesse Boyd,

                                                            Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Crim. No. 03-00227)
                     Honorable James M. Munley, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 6, 2006

               BEFORE: ROTH and GREENBERG, Circuit Judges, and
                        BUCKWALTER, District Judge*

                                (Filed March 22, 2006)


                              OPINION OF THE COURT



*Honorable Ronald L. Buckwalter, Senior Judge of the United States District Court for
 the Eastern District of Pennsylvania, sitting by designation.
GREENBERG, Circuit Judge.

       Jesse Boyd appeals from a judgment of conviction and sentence entered on March

22, 2005, on his plea of guilty to a single-count indictment charging him with distribution

and possession with intent to distribute cocaine contrary to 21 U.S.C. § 841(a)(1). The

court calculated his total offense level as 31 which, with his criminal history of VI,

yielded a sentencing range of 188 to 235 months. The court sentenced Boyd to a

custodial term of 188 months to be followed by a three-year term of supervised release.

The district court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324,

327-28 (3d Cir. 2006). On this appeal Boyd raises the following issues:

       A.     Whether the District Court, post [United States v. Booker, 543
              U.S. 220, 125 S.Ct. 739 (2005)], erred during [his] sentencing
              hearing by requiring all facts used to enhance [his] sentence
              be proved by a preponderance of the evidence, rather than
              beyond a reasonable doubt.

       B.     Whether the District Court erred during [his] sentencing
              hearing by not applying at least a clear and convincing
              evidence standard to the fact-finding underlying any
              enhancement when making a considerable upward guideline
              departure.

       C.     Whether the District Court erred during [his] sentencing
              hearing, when evaluating the admissibility of hearsay
              statements that involved drug quantity, by not applying a
              heightened standard of admissibility and where the Court did
              not ‘rigorously apply’ the sufficient indicia of reliability
              standard.

              1. Whether the present case involves ‘the tail wagging the
              dog’ requiring a higher standard of proof regarding drug

                                              2
              quantity.

              2. Whether the pre-sentence report and the District Court
              erroneously attributed drug amounts to [him] by relying on
              evidence that did not meet the ‘rigorously’ applied sufficient
              indicia of reliability standard.

       D.     Whether the District Court erred during [his] sentencing
              hearing by precluding [him] from inquiring into the identity of
              a confidential informant, and whether or not the informant
              was a drug-addict, even though the informant provided
              critical information on drug quantity upon which the Court
              ultimately relied to enhance [his] sentence.

       E.     Whether the District Court erred during [his] sentencing
              hearing by admitting [his] statements made during a change of
              plea hearing where [his] guilty plea was subsequently
              withdrawn by the Court over [his] explicit objection at the
              time of [his] initial sentencing hearing.

       F.     Whether the District Court erred during [his] sentencing
              hearing by determining [his] Criminal History Category as VI
              rather than V.

       G.     Whether the District Court erred, during [his] sentencing
              hearing in that the Court did not conduct a ‘full hearing’ on all
              controverted sentencing issues.

       H.     Whether the District Court erred under the advisory
              guidelines when the Court imposed a sentence that is patently
              unreasonable under the circumstances.

Br. at 2-3. After our review of this matter, we reject Boyd’s contentions without extended

discussion as we are satisfied that they are without merit. We nevertheless comment on

certain of them.

       To start with we reject Boyd’s first two contentions with respect to the standard of

proof as we have held that the preponderance of the evidence standard is applicable when

                                             3
a court makes findings of fact for purposes of sentencing. See Cooper, 437 F.3d at 330;

United States v. Miller, 417 F.3d 358, 363 (3d Cir. 2005). Accordingly, to the extent that

United States v. Siegelbaum, 359 F. Supp.2d 1104 (D. Or. 2005), which Boyd cites,

supports his argument, we will not follow that case.

         Next we consider but reject Boyd’s contention that the court erred when evaluating

the admissibility of hearsay statements with respect to drug quantity because the court

relied in part on unreliable hearsay evidence. In reaching this conclusion we see no

reason to believe that the evidence was unreliable. Moreover, as we noted in United

States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996), a case we decided before Booker and

thus at a time that the guidelines were mandatory, “[t]he use of hearsay in making

findings for purposes of Guidelines sentencing violates neither the Sentencing Reform

Act of 1984 nor the Due Process Clause.” It seems to us that now that the guidelines are

advisory rather than mandatory, a district court should have, if anything, more rather than

less flexibility in finding facts and considering hearsay for sentencing purposes.

         Finally we reject Boyd’s contention that the sentence imposed was “patently

unreasonable.” In this regard we point out that the court sentenced Boyd at the bottom of

the guideline range. While we do not suggest that that circumstance insulates the

sentence from a contention that it was unreasonable, still “it is less likely that a within-

guidelines sentence, as opposed to an outside-guidelines sentence, will be unreasonable.”

Cooper, 437 F.3d at 331; see also United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005).

                                               4
      The judgment of conviction and sentence entered March 22, 2005, will be

affirmed.




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