246 F.3d 696 (D.C. Cir. 2001)
In re:  Sealed Case
No. 00-3057
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2001Decided April 24, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 99cr00196-01)
Gregory L. Poe, Assistant Federal Public Defender, argued  the cause for appellant.  With him on the briefs was A.J.  Kramer, Federal Public Defender.
Marc O. Litt, Assistant U.S. Attorney, argued the cause for  appellee.  With him on the brief were Wilma A. Lewis, U.S.  Attorney, John R. Fisher, Roy W. McLeese, III, and Mary T.  O'Connor, Assistant U.S. Attorneys.
Before:  Williams, Ginsburg and Sentelle, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge:


1
Appellant pleaded guilty to one  count of unlawful possession of a firearm in violation of 18  U.S.C. 922(g)(1) and one count of unlawful possession of  cocaine in violation of 33 D.C. Code 33-541.  The presentence investigation report found that appellant had threatened to shoot someone with the firearm, a separate felony  that under 2K2.1(b)(5) of the United States Sentencing  Guidelines calls for a 4-level enhancement of the sentence for  gun possession.  Appellant objected, and the district court  took evidence, including some hearsay testimony.  On finding  by a preponderance of the evidence that appellant had indeed  made such a threat, the district court applied the enhancement and sentenced appellant accordingly.


2
Appellant challenges the court's reliance on the hearsay. He also objects to the use of the preponderance standard,  contending that the Supreme Court's decision in Apprendi v.  New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), requires the  government to prove the gun threat beyond a reasonable  doubt.  (He makes no claim of entitlement to jury trial on the  gun threat.)  Neither of appellant's claims prevails.  We  address the Apprendi theory first.


3
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4
Apprendi had pleaded guilty to a gun possession charge  carrying a sentence of 5-to-10 years.  At sentencing, the trial  court found by a preponderance that he had committed the  crime with a racially biased purpose, a finding that under  New Jersey law allowed a 10-to-20 year sentence for the  underlying crime.  The court imposed a 12-year sentence. In vacating the sentence, the Supreme Court held that any  fact (other than a prior conviction) "that increases the penalty  for a crime beyond the prescribed statutory maximum must  be submitted to a jury, and proved beyond a reasonable  doubt."  Apprendi, 120 S. Ct. at 2362-63 (emphasis added).


5
In the present case, appellant's sentence, with the enhancement, was 48 months, far less than the 10-year statutory  maximum for the gun possession charge.  18 U.S.C.  924(a)(2).  Thus appellant can win on his Apprendi claim  only if Apprendi also applies to a Guidelines enhancement  that results in a sentence within the statutory range.  Because appellant failed to raise this issue at sentencing, we review for plain error, United States v. Foster, 988 F.2d 206,  209 (D.C. Cir. 1993);  in fact there is no error at all.


6
Clearly Apprendi does not articulate a rule that takes the  step proposed by appellant.  In addition, the Apprendi Court  specifically distinguished, and found permissible, the practice  of authorizing "judges to exercise discretion--taking into  consideration various factors relating both to offense and  offender--in imposing a judgment within the range prescribed by statute."  120 S. Ct. at 2358 (citing Williams v.  New York, 337 U.S. 241, 246 (1949)).  See also id. at 2366 n.21  (stating that the Court took no position on the effect of the  decision on the Guidelines, but quoting the observation in  Edwards v. United States, 523 U.S. 511, 515 (1998), that  "petitioners' statutory and constitutional claims would make a  difference if it were possible to argue, say, that the sentences  imposed exceeded the maximum that the statutes permit."). The opinion stressed that the Court had "often noted" that  judges had exercised this discretion "within statutory limits." Id. at 2358.  In fact, the Court recently approved enhancements based on acquitted conduct when supported by a  preponderance of the evidence.  See United States v. Watts,  519 U.S. 148, 157 (1997).  Given this traditional latitude, and  the Apprendi Court's explicit endorsement of the tradition, it  is hard to see how the Court could have intended to mandate  the heightened standard for application of the Guidelines'  enhancement instructions when the resulting sentence remains within the statutory maximum.  Reading the Apprendi  rule to avoid such a result is consistent with the Court's  statement that the case addressed a "narrow issue."  Apprendi, 120 S. Ct. at 2354.


7
Appellant seeks support in the fact that the Court has  granted certiorari, vacated, and remanded ("GVR'd") a Guidelines case for further consideration in light of Apprendi.  See  Clinton v. United States, 121 S. Ct. 296 (2000), remanding  United States v. Reliford, 210 F.3d 285 (5th Cir. 2000).  At  best a GVR order could add little to appellant's case.  While  it may indicate "a reasonable probability that the decision  below rests upon a premise that the lower court would reject  if given the opportunity for further consideration," Lawrence v. Chater, 516 U.S. 163, 167 (1996), it does "not amount to a  final determination on the merits," Henry v. City of Rock  Hill, 376 U.S. 776, 777 (1964).  But appellant's attempted  inference is even weaker here.  The GVR'd case involved not  only Guidelines enhancements but also the application of a  statutory progression of minimum and maximum sentences  under 21 U.S.C. 841 (providing for increasing penalties for  different quantities and types of drugs).  Facts that trigger  the higher statutory maxima provided in 841 are clearly  subject to Apprendi, as we found in United States v. Fields,  242 F.3d 393 (D.C. Cir. 2001).  The Solicitor General supported a grant of certiorari in Clinton only for the statutory  penalty issues, but the Court issued the GVR order without  making the distinction.  App. Br. at 22-23.  As weak as  inferences from a GVR may be, an inference from the Court's  failure to sever some issues from the remand is feebler yet. We give it no weight.


8
The Apprendi dissenters, to be sure, attacked the line  drawn by the majority as "meaningless formalism," 120 S. Ct.  at 2388-90, and appellant argues in essence that their reading  reveals that the logic of Apprendi will ultimately compel the  Court to apply the case to Guidelines enhancements.  App.  Br. at 21-22.  The Apprendi dissent suggested that the  majority's stated rule would allow a legislature to set astronomic statutory ceilings for crimes, and then direct the courts  to make adjustments in accordance with facts determined  solely by the judge.  120 S. Ct. at 2389.  But the majority  responded that "structural democratic constraints exist to  discourage legislatures from enacting penal statutes that  expose every defendant ... to a maximum sentence exceeding that which is, in the legislature's judgment, generally  proportional to the crime."  Id. at 2363 n.16.  It is clearly not  for us to disregard a conceptual line that the Court majority  has not only stated but also stoutly defended against a  dissenting challenge.


9
We therefore join all of our sister circuits that have addressed the issue in declining to extend Apprendi beyond its  stated coverage.  See United States v. Caba, 241 F.3d 98, 101  (1st Cir. 2001);  United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001);  United States v. Williams, 235 F.3d 858, 862-63  (3d Cir. 2000);  United States v. Kinter, 235 F.3d 192, 198-201  (4th Cir. 2000);  United States v. Keith, 230 F.3d 784, 786-87  (5th Cir. 2000);  United States v. Munoz, 233 F.3d 410, 413-14  (6th Cir. 2000);  Hernandez v. United States, 226 F.3d 839,  841 (7th Cir. 2000);  United States v. Aguayo-Delgado, 220  F.3d 926, 933-34 (8th Cir. 2000);  United States v.  Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir. 2000); United States v. Heckard, 238 F.3d 1222, 1235-36 (10th Cir.  2001);  United States v. Nealy, 232 F.3d 825, 829 (11th Cir.  2000).


10
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11
The Sentencing Guidelines provide that a sentencing judge  may use relevant information to resolve a dispute over a factor without regard to admissibility at trial, "provided that  the information has sufficient indicia of reliability to support  its probable accuracy."  U.S.S.G. 6A1.3 (2000).  The evidence supporting the finding of a gun threat was clearly  hearsay that would not have been admissible at trial.  Officer  Spalding of the Metropolitan Police Department gave testimony that included reports of statements made to him by the  complainant and a friend of hers, and (double hearsay) statements made by the complainant to another police officer  (Sergeant White) and relayed to Spalding.  Appellant asserts  that the crediting of hearsay testimony delivered by Officer  Spalding violates both 6A1.3 and appellant's due process  rights under United States v. Tucker, 404 U.S. 443, 447  (1972), which holds that a sentence founded on "misinformation of constitutional magnitude" may not be sustained.  We  have recently held that use of hearsay at sentencing does not  per se violate a defendant's rights.  See United States v.  Drew, 200 F.3d 871, 879 (D.C. Cir. 2000).  As we cannot  imagine how hearsay with "sufficient indicia of reliability to  support its probable accuracy" could violate Tucker's due  process standard, our analyses of the due process and Guidelines arguments merge for the purposes of this appeal.


12
Appellant argues that we should review the reliability  determination de novo.  In support he cites Ornelas v. United States, 517 U.S. 690, 697 (1996), prescribing such review for  district court findings of reasonable suspicion or probable  cause, and the plurality opinion in Lilly v. Virginia, 527 U.S.  116, 136 (1999), requiring de novo review to resolve whether  hearsay received in a criminal trial had the "particularized  guarantees of trustworthiness" that are required under the  Confrontation Clause for hearsay not meeting any recognized  exception, see Ohio v. Roberts, 448 U.S. 56, 66 (1980).  The  government argues for an abuse of discretion standard, on  the ground that the issue is basically an evidentiary ruling in  a phase of the proceeding where the judge exercises broad  discretion.  We need not decide this dispute, because even  under de novo review we find that the hearsay testimony has  sufficient indicia of reliability.


13
Spalding testified that he responded to a radio run for a  man with a gun at an apartment in Southeast Washington. Spalding went to the apartment and found appellant and his  sister.  Appellant "appeared distraught."  Spalding asked if  "there was a weapon in this apartment that needs to be  removed," and appellant directed him to the back bedroom  where another officer, White, found a 12-gauge shotgun.  See  Transcript of Sentencing, May 9, 2000 ("Tr.") at 14-16.  After  the gun was secured, Spalding interviewed those present in  the apartment while White interviewed people on the street,  including the complainant.  See id. at 16-17.  Spalding conducted follow-up interviews with the complainant and, at her  suggestion, a friend of hers who was also present during the  incident but who was not interviewed at the time.  See id. at  20.  The friend's story was consistent with the complainant's  in all relevant respects.  At the sentencing hearing Spalding  offered the statements made to him and to White.


14
It appears agreed that appellant was acquainted with the  complainant and that she took offense when he made a lewd  comment about her from the apartment window as she passed  by on the street.  It is further agreed that appellant went  down to the front of the building to intercept her, and an  argument ensued.  Here the agreement ends.  According to  the complainant's version as reported by Spalding, she made  some (possibly threatening) reference to her boyfriend, and appellant responded that "he would take care of her, or he  would take care of them."  Id. at 18.  Appellant retreated  into the building, while complainant remained at the locked  front door to the building.  See id.  Appellant then returned  carrying something in his right hand.  See id.  When complainant recognized the item as a gun, she began to flee but  then changed her mind.  See id. at 19.  As she returned  toward the building, her friend stepped between her and the  door.  See id. at 19-20.  Appellant reportedly told complainant's friend "to move out of the way, because he did not want  to shoot her."  Id. at 20, 21-22.  Complainant understood  herself to be the intended target.  See id. at 20.


15
To establish reliability the government notes that complainant presented her version of the facts on the night of the  incident, maintained it consistently in more than one later  interview, and testified to it before the grand jury under oath. (The grand jury testimony was not admitted into evidence but  government counsel proffered that she had read it and that it  was consistent with the accounts by Spalding except as to the  exact words of the appellant's threat.  Gov't Br. at 20-21  n.15.)  See United States v. Williams, 10 F.3d 910, 914-15  (1st Cir. 1993) (crediting hearsay declarant who had previously presented story under oath and therefore subjected to  perjury);  United States v. Corvin, 998 F.2d 1377, 1386 (7th  Cir. 1993) (crediting hearsay based in part on fact that  declarant gave statement to police at the scene "without  opportunity for reflection" and maintained a consistent version).


16
Appellant tries to turn the complainant's self-consistency  around, saying that she had an "obvious incentive to hold  fast" once she had told her story.  See App. Br. at 25. Perhaps so, but self-consistency, in accounts given virtually in  the heat of the event and later with a clear exposure to  perjury, must still count as a plus.  Appellant further argues  that complainant's self-corroboration is insufficient because  her grand jury testimony differed from the earlier interviews. But all we know is that there was a minor difference in her  report of the wording of the threat.  This alone is not enough  to undermine credibility.  Finally, appellant notes that complainant failed in the first instance to reveal a past sexual  relationship between them that might have created bias.  But  the testimony of co-conspirators and informers is often credited if other indicia of reliability are present, despite the fact  that they may be perceived as interested parties.  See United  States v. Golden, 17 F.3d 735, 736 (5th Cir. 1994) ("This court  has previously concluded that information provided by an  'interested adverse witness' was sufficiently reliable.");  United States v. Wise, 976 F.2d 393, 403 (8th Cir. 1992) ("[A] coconspirator's prior inconsistent statement, brought out during  his testimony at the sentencing hearing, was sufficiently  reliable, when considered along with the other corroborating  circumstances present.") (citing United States v. Sciarrino,  884 F.2d 95, 97 (3rd Cir. 1989)).


17
The government points to other indicia of reliability besides  self-consistency.  First, appellant's own sister, testifying on  his behalf, gave testimony consistent with the complainant's  account at least up to the point of appellant's retreat into the  building.  She also acknowledged, on listening to a tape of a  911 call placed from the apartment, that appellant can be  heard screaming, "[W]here is the gun?", that he was "pretty  angry at this point," and that another woman at the scene  was repeatedly yelling at appellant "to get into the house." Tr. at 75-78.  That appellant was actively in search of the  gun during the confrontation supports the likelihood of his  using it to make a threat, and the would-be pacifier's shouts  suggest that she at least saw a risk of violence.  Finally, the  account of complainant's friend matched hers in all serious  respects.  Although there is no non-hearsay witness precisely  confirming the threat, appellant has not pointed us to any  case that would demand it.  And it would make little sense  for this court to make such a demand, especially in the  context of judicial sentencing, as then the hearsay would be  largely unnecessary to the court's finding.


18
Appellant takes several shots at the corroborating data, but  most of his critiques show no more than that each item taken  alone falls short of independently establishing the threats. Beyond that, he observes that the district court gave no  weight to the claim by another sister of appellant, who was not present during the incident, that complainant had been  drinking and smoking marijuana laced with PCP earlier in  the day.  See id. at 53-54.  But the district court noted the  testimony, expressed grave doubt as to its credibility, and  said that even if true it was of little relevance, as there was no  doubt of her ability to identify appellant correctly.  See id. at  95-96.


19
Appellant also argues that the district court erred in discrediting the sister who was present.  The court observed  that it "was perfectly clear that her desire to protect her  brother outweighed her desire, if any, to tell the truth."  Id.  at 95.  The decision to disbelieve this direct witness, though  affecting the court's ultimate assessment of the hearsay, was  a garden-variety credibility issue that we could reverse only  for clear error.  We find none.  The sister's testimony was  jumbled and inconsistent and included retractions.  Further,  Spalding testified that neither sister had been forthcoming on  the night of the incident and that both seemed committed to  consulting with each other before talking with the police.  We  therefore find that the hearsay has substantial indicia of  reliability and that appellant has failed to undermine our  confidence in this assessment.


20
Finally, appellant claims for the first time on appeal that  6A1.3(b) of the Guidelines and Fed. R. Crim. P. 32(c)(1)  (which 6A1.3(b) makes applicable to resolution of disputed  sentencing factors) required specific written findings relating  to the reliability and credibility of the hearsay declarants. But we have long and consistently held that one who fails to  object to the absence of Rule 32(c)(1) findings waives his right  to challenge an enhancement on these grounds and that we  will uphold an enhancement supported by the record.  See,  e.g., United States v. Sobin, 56 F.3d 1423, 1428 (D.C. Cir.  1995).  In any event, because here we have reviewed the  issue de novo, any error would appear harmless.


21
The judgment of conviction and sentence are


22
Affirmed.

