                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-15565                ELEVENTH CIRCUIT
                            Non-Argument Calendar               JULY 1, 2009
                          ________________________           THOMAS K. KAHN
                                                                  CLERK
                   D. C. Docket No. 08-00132-CR-T-30-MAP

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

OSCAR FERNANDEZ,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (July 1, 2009)

Before MARCUS, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Oscar Fernandez appeals his 87-month sentence for conspiracy and

possession with intent to distribute over 500 grams of cocaine, in violation of 21

U.S.C. §§ 841 and 846.       The district court found that Fernandez was the
leader/organizer of his conspiracy, and, as a result, enhanced his sentence by two

levels and denied him a safety valve reduction. On appeal, Fernandez argues that

in imposing the leader/organizer enhancement, the district court erred in relying

solely on the facts in the pre-sentence investigation report (“PSI”), and violated his

Fifth Amendment Due Process Clause right and Sixth Amendment Confrontation

Clause right. After careful review, we affirm.

      If a sentencing issue is raised for the first time on appeal, we will review that

issue only for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th

Cir. 2000). Under plain error review, there must be (1) an error, (2) that is plain,

and (3) that affects substantial rights. Id. When these three factors are met, we

may then exercise our discretion and correct the error if it seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. United States v.

Olano, 507 U.S. 725, 732 (1993). Review for plain error requires an error to be

clear or obvious. United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007). If

a defendant fails to object to facts that are contained in the PSI, he is deemed to

have admitted those facts. United States v. Bennett, 472 F.3d 825, 833-34 (11th

Cir. 2006).

      We have held that it is not plain error for a district court to consider reliable

hearsay statements during sentencing.      United States v. Chau, 426 F.3d 1318,



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1322-23 (11th Cir. 2005).       We have also specifically stated that the Sixth

Amendment’s Confrontation Clause right is applicable solely to trials and “does

not apply to sentencing.” United States v. Cantellano, 430 F.3d 1142, 1146 (11th

Cir. 2005).    With regard to the Due Process Clause, we have held that a

defendant’s due process rights are not violated “where, at the time the defendant

committed the offense, the United States Code and the guidelines advised the

defendant of the statutory maximum sentence and that a judge would engage in

fact-finding to determine his sentence and could impose up to the statutory

maximum sentence.”      United States v. Martinez, 434 F.3d 1318, 1323 (11th

Cir. 2006) (quoting United States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.

2005)).

      At the sentencing hearing, Fernandez failed to object to the factual

statements in the PSI, and, therefore, admitted those factual statements as true.

Bennett, 472 F.3d at 833-34.      Because Fernandez admitted the truth of those

factual statements, the statements cannot be considered unreliable, and it was not

plain error for the district court to consider them at sentencing. See Chau, 426 F.3d

at 1322-23.    Fernandez’s arguments to the contrary and his reliance on the

Confrontation Clause are misplaced, as those arguments are foreclosed by

precedent. See id.; Cantellano, 430 F.3d at 1146.



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      Turning to Fernandez’s due process claims, at the time that he committed the

instant offenses, 21 U.S.C. § 841(b)(1)(B)(ii) provided that he would be facing a

statutory term of imprisonment ranging from five to forty years. The pertinent

statutes also provided that a judge would engage in factfinding, using the PSI and

the Sentencing Guidelines to determine his sentence, which could be as high as the

statutory maximum sentence. See 18 U.S.C. §§ 3552, 3553; Martinez, 434 F.3d at

1323; Duncan, 400 F.3d at 1307. Therefore, Fernandez’s due process rights were

not violated, and his arguments to the contrary are foreclosed by precedent. See

Martinez, 434 F.3d at 1323. Accordingly, we affirm the district court’s decision.

      AFFIRMED.




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