                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    October 12, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 06-8004
          v.                                        District of W yoming
 TREVOR LAK E,                                  (D.C. No. 05-CR-170-04-B)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Defendant Trevor Lake plead guilty to one count of conspiracy to possess

with intent to distribute between 500 grams and 1.5 kilograms of

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The

district court imposed the statutory minimum sentence of 120 months, with five



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
years supervised release, and a $350 fine. M r. Lake now appeals his sentence.

First, he argues that the sentencing court committed constitutional error under

United States v. Booker, 543 U.S. 220 (2005), and violated his Sixth Amendment

right to confrontation by relying on hearsay statements to add a two-level

enhancement for possession of a firearm, Crawford v. Washington, 541 U.S. 36

(2004). Second, M r. Lake claims the district court erred by counting his prior

juvenile record in W yoming toward the calculation of criminal history points

under the Federal Sentencing Guidelines. W e reject these challenges and affirm

the district court.

                              I. Firearm Enhancement

       At the recommendation of the pre-sentence report (PSR), the district court

imposed a two-level enhancement under the sentencing guidelines for M r. Lake’s

possession of a firearm during the drug conspiracy. U.S.S.G. § 2D1.1(b) (2004).

W e review the district court’s legal findings de novo, its factual findings for clear

error, and its ultimate sentencing decision for “reasonableness.” United States v.

Kristl, 437 F.3d 1050, 1053-54 (10th Cir. 2006).

       M r. Lake alleges a brace of errors w ith regard to the district court’s firearm

enhancement, beginning with its consistency with Booker. The court’s

enhancement, M r. Lake claims, was constitutional Booker error. W e do not agree.

The district court’s finding that M r. Lake possessed a firearm, coupled with the

criminal history designation M r. Lake also contests, brought M r. Lake’s

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sentencing range to 121-151 months. Yet the district court sentenced M r. Lake to

the 120-month statutory minimum, below what it believed to be the correct

guideline recommendation. 21 U.S.C. § 841(b)(1)(A). Under Booker,

considering judge-found facts violates the Sixth Amendment only if they increase

the actual sentence, not the advisory sentencing range. United States v. Yazzie,

407 F.3d 1139, 1144 (10th Cir. 2005) (en banc). Here, the court's finding that

M r. Lake possessed firearms did not increase his sentence beyond the maximum

authorized by his plea. On the contrary, he received the statutorily required

minimum sentence. Thus, the district court’s finding had no constitutional effect.

Sentencing according to the dictates of a statutory mandatory minimum does not

constitute Booker error. United States v. Payton, 405 F.3d 1168, 1173 (10th Cir.

2005).

         M r. Lake also claims that the court’s reliance on testimonial hearsay in

determining the appropriate guidelines range violated his confrontation rights

under Crawford v. Washington, 541 U.S. 36 (2004). W e review this claim de

novo. United States v. M ontague, 421 F.3d 1099, 1102 (10th Cir. 2005). The

PSR included statements by one M ichael Vancamp, alleging that M r. Lake

threatened him with a weapon shortly before M r. Lake’s arrest. Partly on the

strength of this hearsay statement, the district court found M r. Lake possessed a

firearm during the drug conspiracy and enhanced his sentence accordingly.




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      Our cases hold that because the Sixth Amendment’s Confrontation Clause

does not apply at sentencing, Crawford does not apply either. United States v.

Bustamante, 454 F.3d 1200, 1202-03 (10th Cir. 2006) (“W e see nothing in

Crawford that requires us to depart from our precedent ‘that constitutional

provisions regarding the Confrontation Clause are not required to be applied

during sentencing proceedings.’” (citing United States v. Hershberger, 962 F.2d

1548, 1554 (10th Cir. 1992))). Therefore, M r. Lake’s C onfrontation Clause rights

were not implicated by the court’s reliance on M ichael Vancamp’s statements in

the PSR.

       Nor was the district court’s finding that M r. Lake possessed a firearm

during the drug conspiracy clearly erroneous. Even aside from M r. Vancamp’s

hearsay statements, the evidence amply supports that finding. M ost significantly,

M r. Lake himself admitted to owning a handgun. R. Vol. 3 at 35-38. W hile the

Government bears the initial burden of proving weapons possession by

preponderance of the evidence, once this burden is met, the defendant must show

it is clearly improbable the weapon was connected with the offense. United

States v. Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001). M r. Lake adduced no

evidence at trial or any other point to show that his firearm was unconnected to

the instant offense. Accordingly, given his admissions and the supporting

statements of M r. Vancamp and others in the PSR, we conclude the district

court’s factual finding was not clearly erroneous.

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                               II. Criminal H istory

      M r. Lake also challenges the district court’s use of his prior juvenile

confinement to calculate two criminal history points under U .S.S.G. §

4A1.2(d)(2)(A). This calculation placed him in criminal history category II. M r.

Lake claims juvenile adjudications in W yoming are “special proceedings” that do

not involve any determination of guilt, and as such should not count toward the

criminal history determination under the guidelines. Had the court correctly

calculated his criminal history, M r. Lake contends, he might have been eligible

for the so-called “safety-valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. §

5C1.2(a), a statutory escape hatch which allows a defendant to evade the

mandatory minimum sentence for certain offenses if the district court finds the

defendant meets five specified criteria. Among those criteria: the defendant must

not have more than one criminal history point and must not have possessed a

firearm in connection with the offense. 18 U.S.C. § 3553(f), U .S.S.G. § 5C1.2(a).

      W e note at the outset that M r. Lake would not qualify for the safety-valve

provision regardless of the disposition of his criminal history claim, for the

obvious reason that he possessed a firearm in connection with the offense.

Nevertheless, we proceed to review the factual elements of the district court’s

calculation of criminal history for clear error and its legal determinations de novo.

United States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005).




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      The U.S. Sentencing Guidelines provide that for offenses committed by a

defendant prior to the age of eighteen, two criminal history points should be

added for each “juvenile sentence to confinement of at least sixty days,” provided

the defendant was released from confinement within five years of the instant

offense. U.S.S.G. § 4A1.2(d)(2)(A). M r. Lake was confined for a total of 148

days, a fact he does not dispute. He claims only that his confinement is not

relevant for calculating criminal history because the predicate adjudication

involved no determination of guilt.

      But the guidelines do not require a determination of guilt. They require

prior confinement, and for good reason: states label their juvenile proceedings in

different ways. A number of states continue to treat juvenile adjudications as

civil matters. M any, like W yoming, avoid using the terms “guilt” and

“innocence.” Accordingly, the guidelines focus on conduct rather than

terminology. W e have held that section 4A1.2(d)(2) “applies to offenses for

conduct that is criminalized regardless of one’s status, but which the defendant

comm itted prior to age eighteen.” United States v. M iller, 987 F.3d 1462, 1466

(10th Cir. 1993). That is, if the offense for which the juvenile defendant was

confined was not specific to his status as a juvenile, but would have been criminal

regardless of his age, that conduct is relevant for calculating criminal history

under the guidelines.




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      M r. Lake was confined for assault and battery, an offense most assuredly

not specific to his status as a juvenile. As we have explained in a different

context, Congress did not intend the guidelines to treat juveniles accused of the

same crime and with otherwise identical criminal histories differently from each

other simply because different states call their juvenile proceedings by different

names. United States v. David A., 436 F.3d 1201, 1213 (10th Cir. 2006).

W hatever W yoming labels its juvenile adjudications, the district court

appropriately counted M r. Lake’s prior confinement towards his criminal history.

      The judgment of the United States District Court for the District of

W yoming is AFFIRM ED.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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