                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                          FILED
                    _____________________________U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                                                       JUNE 19, 2006
                             No. 05-12380
                                                    THOMAS K. KAHN
                         Non-Argument Calendar
                                                         CLERK
                    _____________________________

                  D.C. Docket No. 04-00075-CR-TWT-1

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

     versus

ROBERT STEWART,


                                                     Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                  for the Northern District of Georgia
                      _________________________

                              (June 19, 2006)

Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
          Robert Stewart appeals his 190-month total sentence, imposed pursuant to

his guilty plea for his involvement in a conspiracy to commit fraud by using

counterfeit checks and stolen identifications.1 No reversible error has been shown;

we affirm.

          Stewart argues that, in the light of “evolving Supreme Court

jurisprudence,”2 his due process and confrontation rights were violated when the

district court based its sentencing guidelines determinations on allegedly

unreliable hearsay evidence.3 But the Sixth Amendment right to confrontation is

not a sentencing right. See United States v. Cantellano, 430 F.3d 1142, 1146

(11th Cir. 2005), cert. denied, 126 S.Ct. 1604 (2006). A sentencing court may rely

      1
     Stewart pled guilty to (1) one count of conspiring with others to defraud Bank of America,
SunTrust Bank, and Wachovia (f/k/a First Union Bank) (collectively, the “Banks”), in violation of
18 U.S.C. §§ 1344, 371; (2) 53 counts of defrauding and obtaining money from the Banks on
specific dates for specific amounts of money, in violation of 18 U.S.C. §§ 1344, 2; and (3) 4 counts
of falsely representing social security numbers to open a bank account, to lease an apartment, to
manufacture a false college identification card, and to manufacture a false Virginia state drivers
license and additional college identification card, all in violation of 42 U.S.C. § 408 and18 U.S.C.
§ 2.
        Stewart also pled guilty to a different indictment alleging (1) that he made a false claim to
the U.S. Department of Veterans Affairs by stating that he had received an honorable discharge when
he actually had received a bad conduct discharge, in violation of 18 U.S.C. § 287, and (2) that he had
submitted a false loan application, in violation of 18 U.S.C. § 1014. This case was consolidated for
sentencing with the check fraud case.
      2
     Stewart cites Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), Blakely v. Washington, 124
S.Ct. 2531 (2004), United States v. Booker, 125 S.Ct. 738 (2005), and Crawford v. Washington, 124
S.Ct. 1354 (2004).
  3
   We review issues about the constitutionality of a sentence de novo. United States v. Chau, 426
F.3d 1318, 1321 (11th Cir.2005).

                                                  2
on hearsay evidence “provided that the evidence has sufficient indicia of

reliability, the court makes explicit findings of fact as to credibility, and the

defendant has an opportunity to rebut the evidence.” United States v. Baker, 432

F.3d 1189, 1253 (11th Cir. 2005) (citation omitted), cert. denied, No. 05-9687

(U.S. Apr. 17, 2006); see U.S.S.G. §6A1.3(a); see also United States v. Giltner,

889 F.2d 1004, 1007 (11th Cir. 1989) (writing that due process at sentencing

requires that defendant be allowed to refute hearsay testimony and that hearsay

bear minimal indicia of reliability). Neither Booker nor Crawford changed the

rule that sentencing courts may rely on reliable hearsay evidence. See Baker, 432

F.3d at 1254 n.68.

      Stewart also takes issue with the district court’s determination that the

hearsay evidence--the statements of codefendants Derrick Grayson, Demario

Riley, and Kenneth Ross as admitted through testimony of FBI Special Agent

David Riser--was reliable. We disagree.

      Agent Riser testified about documentary evidence supporting the statements

of the three codefendants. This evidence included: (1) a fax from Stewart’s

previous employer, Nextel, containing names, social security numbers, and birth

dates; (2) a document related to Stewart from the Department of the Army, Fort

Gordon, Georgia, listing names of Army officers later used to create fraudulent

                                           3
identities; (3) documents showing that Stewart had used stolen identifications to

produce fraudulent driver’s licenses and to purchase vehicles; (4) documents

showing that a stolen identification and the Nextel business name were used to

initiate an account with ChoicePoint, a credit reporting company; (5) credit reports

from ChoicePoint listing persons who had applied to NCS Pearson (another

previous employer of Stewart) while Stewart had worked at NCS Pearson; (6) a

document containing sensitive information about NCS Pearson applicants; (7)

copies of checks payable to other persons that Stewart had faxed from Nextel’s

human resources department; (8) a rental receipt showing Stewart’s rental of a

vehicle as a Nextel employee, when he no longer was employed by Nextel; (9)

materials used in the counterfeit check operation that were mailed to a box rented

by Stewart in Lawrenceville, Georgia; (10) photographs, including Stewart’s

photograph, stored on a computer and used to make identifications; and (11)

information showing that the vehicle Grayson was driving at the time of his arrest

had been purchased by Stewart by providing false pay information and pay stubs

to obtain an auto loan.

      The codefendants interviewed by Agent Riser presented statements

consistent with one another and with the documentary evidence. Grayson

confirmed that Stewart initiated the ChoicePoint account using stolen

                                         4
identification information and Nextel as the business name. Grayson told Agent

Riser that Stewart and another employee had supplied the NCS Pearson identities.

Grayson explained that he and Stewart were the leaders and organizers and that

both printed checks, provided identifications, directed the operation, and split the

proceeds.

       Riley confirmed that Stewart was an equal partner with Grayson. Riley also

stated that Stewart (1) printed checks in his presence in Florida, (2) advised him

that the “specials” were his idea,4 and (3) paid him for recruiting check cashers for

the “specials.” Riley and codefendant Alfred Ussery stated that Grayson and

Stewart were in charge, were the organizers of the group, and provided checks and

identifications.5 Codefendant Keisha Battle, a check casher, also stated that

Grayson and Stewart were partners and leaders of the operation.




  4
    Agent Riser explained that a “special” is an uncommon type of larger-dollar counterfeit check.
According to Agent Riser, after the group obtained Wachovia bank account information from Mark
Gentry, a “bank insider,” Stewart would change telephone numbers on bank accounts. Check
cashers then would cash counterfeit checks on these accounts at a Wachovia branch. When the bank
would call the telephone number on the check, Stewart or Grayson would pose as the legitimate
customer and would authorize the cashing of the check.
   5
    Stewart asserts that Riley’s statement is particularly suspect because the district court declined
the government’s request to assess an obstruction-of-justice enhancement, based solely on Riley’s
uncorroborated statement about Stewart’s alleged post-arrest communication with Riley. But this
statement is not relevant to whether the district court properly relied on hearsay testimony about
Riley’s statement of the offense conduct, which was consistent with the statements of other
codefendants.

                                                  5
         Ross and Mark Gentry (who was a Wachovia bank employee at the time of

the offenses) offered similar statements about their involvement in the operation

and their relationship with Stewart. Both stated that Ross had asked Gentry if he

wanted to participate in the operation by providing bank account information.

When Gentry agreed, Ross provided Gentry with a fax number to which Gentry

faxed the information. Both stated that Gentry had no contact with Stewart or

Grayson, and that Ross only had contact with Stewart.

         Our review of the record establishes sufficient indicia of reliability on the

hearsay statements testified to by Agent Riser. The district court, further, made an

explicit determination on the reliability of the codefendants’ statements.6 And

Stewart was given the opportunity to cross-examine Agent Riser about these

statements.



  6
      In ruling on an aggravating role enhancement, the district court said these things:

         [Tthere is abundant testimony from the codefendants Grayson and Riley and Ross
         from their statements that . . . Stewart and Grayson were more or less equal partners
         in this conspiracy and that they were organizers and leaders of the criminal activity.
         I find their testimony corroborated by the documentary evidence that Mr. Stewart
         participated in the printing of checks, creation of I.D.’s, directing of check chasers,
         coordination of drivers, recruiting Ross, who recruited Gentry, which gave him
         access to the insider bank information. He participated in changing the phone
         numbers in the internal bank accounts, which allowed the conspirators to cash the
         larger checks known as specials. He provided maps and other directions to the
         drivers so the check cashers could go to the right banks to cash the counterfeit
         checks. And he organized the--at least one of the out-of-town trips.

                                                   6
       We next reject Stewart’s argument that the district court violated his Sixth

Amendment rights under United States v. Booker, 125 S.Ct. 738 (2005), by

applying the advisory Sentencing Guidelines as effectively mandatory.7 The

district court, correctly, did consider the guidelines as “an important factor.” See

Booker, 125 S.Ct. at 767. And in imposing a sentence in the middle of the

guideline range, the court also specifically referred to the sentencing factors set

out in 18 U.S.C. § 3553(a). See United States v. Crawford, 407 F.3d 1174,

1178-79 (11th Cir. 2005) (after district court makes accurate guidelines

calculation, and considers other factors set forth in18 U.S.C. § 3553(a), it may

impose more severe or more lenient sentence as long as sentence is reasonable).

The district court’s sentencing procedure was proper under Booker.

       Stewart argues the district court clearly erred in its sentencing calculations.

Stewart specifically challenges (1) the four-level enhancement for being a leader

or organizer, U.S.S.G. § 3B1.1(a); (2) the amount of loss attributable to him as

relevant conduct, § 2B1.1(b)(1)(I); (3) the two-level enhancement for ten or more

victims, § 2B1.1(b)(2)(A); (4) the two-level enhancements for use of sophisticated

means, § 2B1.1(b)(9)(C), and for unauthorized use of means of identification,



  7
   Stewart timely raised his Booker claim below: we review his sentence de novo, but we reverse
only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

                                              7
§ 2B1.1(b)(10)(C)(i); and (5) the denial of an acceptance-of-responsibility

reduction, § 3E1.1. After careful review of Stewart’s arguments and of the record,

we reject his challenges and uphold the district court’s sentencing calculations.8

We discuss in more detail only the leadership enhancement and the loss

determination.

        On the leadership enhancement, documentary evidence and codefendant

statements showed that Grayson and Stewart, as partners, (1) printed checks and

identifications; (2) provided checks and identifications for drivers to give to check

cashers; (3) instructed drivers on which bank branch to use; (3) planned out-of-

town check cashing trips; (4) arranged for the “specials”; and (5) addressed

problems that would arise, such as the arrest of a check casher. This evidence is

enough to support the role enhancement.

        About the loss calculation, Stewart cites to United States v. Hunter, 323

F.3d 1314 (11th Cir. 2003), and argues that the government failed to show (1) the

scope of the conspiracy and (2) that the loss was reasonably foreseeable to

Stewart. In Hunter, we wrote that the participants in a conspiracy knew that they

were part of a larger criminal scheme was, by itself, insufficient to hold them



    8
     We review the district court’s fact determinations for clear error and its application of the
sentencing guidelines to those facts de novo. See Crawford, 407 F.3d at 1177-78.

                                                8
responsible for the entire amount of loss caused by the scheme. Hunter, 323 F.3d

at 1320-21. But we think this case is more like United States v. McCrimmon, 362

F.3d 725 (11th Cir. 2004), where we concluded that the entire loss caused by a

money laundering scheme properly was attributed to the defendant because he

“was fully aware of the objective of the conspiracy and was actively involved in

recruiting investors to further the . . . scheme.” McCrimmon, 362 F.3d at 732.

Unlike Hunter, Stewart was a leader and had knowledge of the full scope of the

conspiracy: the conduct of his co-conspirators in furtherance of the conspiracy was

reasonably foreseeable to him. The district court did not err in holding Stewart

responsible for the full amount of loss caused by the conspiracy.9

       Stewart also argues that the district court erred by using a preponderance of

the evidence standard of proof when applying the guideline enhancements. He

contends that a higher standard of proof should apply to his case because the

enhancements--based on facts not alleged in the indictment or admitted by him--

impacted his sentence in a severe manner. But “it is the settled law of this circuit

that at sentencing, a federal defendant’s due process rights are . . . satisfied by the



  9
   Stewart also contends that the district court failed to explain its ruling on this issue. The record
overwhelmingly supports the district court’s loss determination: the court’s failure to make a
particular finding on the scope of Stewart’s activity is not a basis for vacating his sentence. See
United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002).

                                                  9
preponderance of the evidence standard.” United States v. Jackson, 57 F.3d 1012,

1019 (11th Cir. 1995) (citations omitted); see also United States v. Rodriguez, 398

F.3d 1291, 1296 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005) (applying

preponderance standard after Booker).

      In sum, we discern no error in Stewart’s sentence.

      AFFIRMED.




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