                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 06-1492
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United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Eastern District of Arkansas.
Kenneth Ray Irvin,                       *
                                         *           [UNPUBLISHED]
            Appellant.                   *

                               ________________

                               Submitted: March 16, 2007
                                   Filed: March 22, 2007
                               ________________

Before COLLOTON, HANSEN, and GRUENDER, Circuit Judges.
                       ________________

PER CURIAM.

       Kenneth Ray Irvin appeals the 312-month sentence imposed by the district
court1 following his plea of guilty to violations of 21 U.S.C. §§ 841(a)(1) and 846.
We affirm.

      The district court adopted the recommendations contained in the Presentence
Investigation Report (PSR) and calculated an advisory Guidelines range of 262 to 327

      1
       The Honorable George Howard, Jr., United States District Judge for the
Eastern District of Arkansas.
months. Irvin made no objections to the PSR. Prior to the sentencing hearing, Irvin
submitted a sentencing memorandum, to which he attached five character letters. At
the sentencing hearing, the government called a detective involved with the
investigation of Irvin's case, who testified about the background of the case leading
up to Irvin's arrest. Most of the detective's testimony corroborated information
contained in the PSR. In addition, the detective testified that Irvin had forcibly
performed a body cavity search on a woman whom he thought stole drugs from him
and had pistol-whipped her companion who attempted to intervene. The detective
received this information from the victim of the body cavity search, as well as from
the confidential informant who ultimately led the detectives to Irvin. Irvin did not
object to the detective's testimony, and his counsel cross-examined the detective.
Irvin asked for a sentence at the bottom of the advisory range of 262 to 327 months,
and the district court sentenced him to 312 months of imprisonment. Irvin claims on
appeal that the district court erred in determining his sentence by relying on irrelevant
and unreliable hearsay evidence from the detective.

        Because Irvin did not object to the detective's testimony, we review his claim
for plain error. See United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005);
United States v. Pirani, 406 F.3d 543, 550 (8th Cir.) (en banc) (plain error standard
of review), cert. denied, 126 S. Ct. 266 (2005). The Federal Rules of Evidence, with
the exception of the privilege rules, do not apply to sentencing proceedings. Fed. R.
Evid. 1101(d)(3); see also United States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992)
(en banc) ("Uncorroborated hearsay evidence is a proper topic for the court's
consideration, as long as the defendant is afforded an opportunity to explain or rebut
the evidence." (internal marks omitted)), cert. denied, 507 U.S. 989 (1993). Thus, a
sentencing judge may base his sentencing decision on relevant hearsay evidence "if
it is accompanied by sufficient indicia of reliability to support the conclusion that it
is probably accurate." Sharpfish, 408 F.3d at 511. The detective who provided the
hearsay evidence was involved in investigating Irvin's case, and he testified that both
the victim of the body cavity search and the confidential informant gave consistent

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statements about Irvin's behavior. The evidence was certainly relevant to the district
court's consideration of Irvin's history and characteristics under 18 U.S.C.
§ 3553(a)(1), particularly in light of the character letters submitted by Irvin. Given
the state of the record, we cannot say the district court plainly erred in considering the
unobjected to hearsay evidence when it determined Irvin's sentence.

      Irvin does not contest the district court's calculation of the advisory Guidelines
range. We review his ultimate sentence for reasonableness, United States v. Booker,
543 U.S. 220, 261 (2005), and we find nothing to suggest that the district court acted
unreasonably in sentencing Irvin toward the top end of the advisory Guidelines range.
The district court's judgment is affirmed.
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