                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-2007

USA v. Pinkerman
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4487




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                                                      NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ____________

                             No. 05-4487
                            ____________

                  UNITED STATES OF AMERICA

                                   v.

                     DOLPH PINKERMAN, III,

                                         Appellant.

                            ____________

            On Appeal from the United States District Court
                for the Middle District of Pennsylvania
                           (No. 04-cr-00038)
              District Judge: Hon. Christopher C. Conner

              Submitted Under Third Circuit LAR 34.1(a)
                          January 25, 2007

Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.

                            ____________

                      (Filed: February 16, 2007)


                     OPINION OF THE COURT
CHAGARES, Circuit Judge.

       Dolph Pinkerman pleaded guilty to conspiracy of theft from interstate shipments,

in violation of 18 U.S.C. § 371. The District Court sentenced Pinkerman to thirty-three

months imprisonment. Pinkerman appeals his sentence, arguing that the District Court

erroneously relied on hearsay evidence in its post-Booker sentencing. We find this

argument meritless and will affirm.

                                             I.

       Because we write solely for the parties, we limit ourselves to describing the facts

that are necessary to understand the issue on appeal. Pinkerman pleaded guilty to

interstate theft in February of 2004. The District Court conducted a sentencing hearing in

October of 2004, in which Pinkerman disputed the amount of loss attributable to his

offense and claimed to be involved in only one transaction with a resulting loss of

$30,844.00. The District Court heard testimony from an employee of the company from

which Pinkerman stole and from a detective. The detective described for the court

statements made by Pinkerman’s co-conspirators and described documents that indicated

Pinkerman participated in multiple incidents of theft. The court relied on the undisputed

parts of the pre-sentence report and the testimonial evidence and found that Pinkerman’s

theft resulted in $896,000.00 in loss.1 The court calculated the sentencing range under the


       1
         The court indicated that it considered the detective’s testimony regarding his
review of relevant documents, but the court specifically declared that it did “not
consider[] evidence implicating testimonial hearsay.” App. at 174. Because testimonial
descriptions of documents would still be testimonial hearsay, we assume by this statement

                                             2
then-mandatory Sentencing Guidelines as thirty-three to forty-one months, based on an

offense level of twenty and a criminal history category of I. The court sentenced

Pinkerman to thirty-three months imprisonment.

       We vacated that sentence and remanded after United States v. Booker, 543 U.S.

220 (2005). On remand, the District Court again found Pinkerman had an offense level of

twenty and criminal history category of I. The court considered the advisory nature of the

Guidelines and concluded a thirty-three month sentence was still appropriate.

                                            II.

       Pinkerman argues that the District Court violated his Sixth Amendment rights by

relying on hearsay in determining the amount of loss because that finding increased his

sentence under the Guidelines. Def. Br. at 13. In making this argument Pinkerman

depends upon United States v. Booker, 543 U.S. 220 (2005), which held “[a]ny fact

(other than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 543

U.S. at 244 (2005). Booker held that judicial fact-finding in a mandatory guidelines

regime violated the Sixth Amendment, but remedied that violation by rendering the

Guidelines advisory. See id. Under the advisory Guidelines, the Sixth Amendment is not

offended by judicial fact-finding. See United States v. Dragon, 471 F.3d 501, 506-07 (3d



the court meant that it did not rely on the detective’s testimony describing statements by
Pinkerman’s co-conspirators.

                                             3
Cir. 2006); United States v. Gunter, 462 F.3d 237, 243-44 (3d Cir. 2006); United States v.

Cooper, 437 F.3d 324, 330 (3d Cir. 2006); United States v. Miller, 417 F.3d 358, 363 (3d

Cir. 2005). As we recently explained, now that the Guidelines are advisory, “[n]one of

the facts relevant to enhancements or departures under the Guidelines can increase the

maximum punishment to which the defendant is exposed.” United States v. Grier, No.

05-1698, slip op. at 19 (3d Cir. Feb. 9, 2007) (en banc).

       Insofar as Pinkerman contends that reliable hearsay evidence is inappropriate in

sentencing proceedings, that contention is inconsistent with our precedent. See United

States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996) (“The sentencing court can give a high

level of credence to hearsay statements, going so far as to ‘credit hearsay evidence over

sworn testimony, especially where there is other evidence to corroborate the inconsistent

hearsay statement.’”) (quoting United States v. Miele, 989 F.2d 659, 664 (3d Cir.1993)).

Pinkerman only cites to the Booker line of cases in his brief, and offers no reason why

Booker would have changed our previous holdings regarding hearsay evidence in

sentencing proceedings. In fact, in issuing Booker, “there is every reason to believe that

the Supreme Court intended that the practices that have guided us and other courts in the

twenty years since the Guidelines were first promulgated would continue to govern

sentencing in the federal courts.” See Grier, slip op. at 9. Sentencing courts could rely on

hearsay evidence before Booker, and they can rely on such evidence today. See, e.g., id.

at 29 n.9 (noting that the Federal Rules of Evidence do not apply at sentencing). We must

reject Pinkerman’s argument to the contrary.

                                             4
                                          III.

       For the foregoing reasons, we will affirm the judgment of sentence imposed by the

District Court.




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