                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        June 8, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 04-40744
                            Summary Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

JAMES WILLIE EDWARDS,

                                        Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                       USDC No. 1:03-CR-36-TH-ALL
                          --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

     James     Willie   Edwards   (Edwards)   appeals   his    guilty      plea

conviction and sentence for possession with intent to distribute

five grams or more but less than 50 grams of crack cocaine in

violation of 21 U.S.C. § 841(a)(1).

     Edwards contends that his rights under the Confrontation

Clause were violated at the suppression hearing when Detective

Harry Kelley (Detective Kelley) was allowed to proffer ex-parte

testimony on behalf of the confidential informant (CI).              Although


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                No. 04-40744
                                     -2-

the CI’s testimony was the sole basis for obtaining the search

warrant for Edwards’s residence, Edwards was unable to cross-

examine the CI because the Government failed to produce the CI at

the suppression hearing or otherwise disclose his or her identity.

      The government is not required to disclose the identity of an

informant unless the informant’s identity is relevant and helpful

to   the   defense   of   the   accused     or   is   essential   to    a   fair

determination of a cause.       Roviaro v. United States, 353 U.S. 53,

59-63 (1957).        “[T]he government’s privilege of nondisclosure

overrides any [S]ixth [A]mendment right to the identity of an

informant for purposes of confrontation.”             United States v. De Los

Santos, 810 F.2d 1326, 1334 (5th Cir. 1987). Although Edwards does

not directly challenge the district court’s denial of his motion to

disclose    the   CI’s    identity,   his    Confrontation     Clause       claim

necessarily implicates the issue of whether the CI’s identity

should have been disclosed.       See id. at 1332 n.5.

      The district court did not abuse its discretion when it denied

Edwards’s motion to disclose the CI’s identity.            See United States

v. Orozco, 982 F.2d 152, 154-155 (5th Cir. 1993).            Edwards was not

charged with the sale of crack cocaine to the CI.              Although this

information was used to obtain the search warrant, the CI did not

actively participate in the search and, thus, was not a witness to

charged offense. Further, Edwards has failed to establish that the

CI’s testimony would significantly aid in his defense. Although he

argues that cross-examination was necessary to test the validity
                                  No. 04-40744
                                       -3-

and veracity of the CI’s testimony and thereby challenge the

probable    cause      determination,       Edwards    was     able     to     question

Detective Kelley regarding the CI’s reliability and present three

witnesses directly contradicting the CI’s testimony.                     Finally, the

CI was still being utilized and the disclosure of his or her

identity would have jeopardized the CI’s safety and usefulness.

Therefore, the Government’s privilege of nondiclosure overrides

Edwards’s rights under the Confrontation Clause.                         See De Los

Santos, 810 F.2d at 1331, 1334-35.

      Edwards also contends that the district court erred when it

denied his motion to suppress the evidence seized during the search

of   his   residence     because      the   search    warrant      and    supporting

affidavits      were    based   on    uncorroborated         and   unsubstantiated

statements and lacked in indicia of probable cause to render belief

in its existence entirely unreasonable.

      Edwards     has    failed      to   present     any    evidence        that    the

detectives’ statements, if false, were made intentionally or with

a reckless disregard for the truth.            See United States v. Alvarez,

127 F.3d 372, 373 (5th Cir. 1997).             Further, the affidavits were

not so lacking in indicia of probable cause that they rendered the

detectives’ belief in its existence entirely unreasonable.                       The CI

had been used at least six times in the past and had proved to be

reliable.       Further,    the      information     provided      by    the    CI   was

corroborated by the detectives’ observations and the audiotape from

the controlled buy.        Therefore, the good-faith exception to the
                                No. 04-40744
                                     -4-

exclusionary rule was applicable, and the district court did not

err when it denied Edwards’s motion to suppress. See United States

v. Satterwhite, 980 F.2d 317, 320-22 (5th Cir. 1992).

     Edwards also contends that the district court clearly erred in

determining the quantity of drugs attributable to him as relevant

conduct.    Specifically, he argues that the offenses included as

relevant conduct were unrelated, too remote in time, based on

different fact patterns, unfounded, unadjudicated, and based on

hearsay evidence.

     “Post-[United States v. Booker, 125 S. Ct. 738 (2005)], we

continue    to   apply   the   same   standard   of   review   to   claims   of

erroneous     fact-finding     with   respect    to   the   application      of

adjustments, i.e., we review for clear error.”              United States v.

Villanueva, ___ F.3d ___, No. 03-20812, 2005 WL 958221, *8 n.9 (5th

Cir. Apr. 27, 2005).           Edwards has not demonstrated that the

district court clearly erred in determining the quantity of drugs

attributable to him as relevant conduct.              See United States v.

Ocana, 204 F.3d 585, 589-91 (5th Cir. 2000).           Although most of the

offenses included as relevant conduct took place nearly two years

prior to the offense of conviction, this alone does not make them

irrelevant.      See United States v. Miller, 179 F.3d 961, 967 n.10

(5th Cir. 1999) (noting that a 21-month gap is not automatically

too remote and that if other factors are “authoritatively present”

the temporal factor may be overcome). Further, all of the offenses

involved Edwards’s sale of crack cocaine to undercover officers or
                           No. 04-40744
                                -5-

informants and the seizure of controlled substances pursuant to

warrants obtained as a result of those transactions.       Finally,

although Edwards argues that the relevant conduct offenses were

unfounded, unadjudicated, and based on hearsay evidence, he did not

submit any rebuttal evidence to refute the information in the

presentence report (PSR). See United States v. Vital, 68 F.3d 114,

120 (5th Cir. 1995).

     Edwards also contends that the district court clearly erred

when it increased his base offense level for possession of a

dangerous weapon under U.S.S.G. § 2D1.1(b)(1).     Specifically, he

argues that the enhancement was based on the execution of an arrest

warrant nearly one year prior to the offense of conviction; that

the incident was uncorroborated, unadjudicated, based on hearsay

evidence, and lacking in indicia of reliability; and that the

Government failed to establish a sufficient nexus between his

actions and the weapon.

     Edwards has not demonstrated that the district court clearly

erred when it increased his base offense level for possession of a

dangerous weapon under U.S.S.G. § 2D1.1(b)(1).     The incident was

properly included as relevant conduct.       See U.S.S.G. § 1B1.3.

Further, the weapons were found in Edwards’s residence and in close

proximity to the drugs and money.    See United States v. Eastland,

989 F.2d 760, 770 (5th Cir. 1993).   Finally, Edwards did not submit

any rebuttal evidence to refute the information in the PSR.     See

Vital, 68 F.3d at 120.
                                    No. 04-40744
                                         -6-

       Edwards also contends that the district court’s reliance on

testimonial       statements    to    determine     the     quantity      of    drugs

attributable to him as relevant conduct and to increase his base

offense level for possession of a dangerous weapon violated his

rights under the Confrontation Clause.              He relies on Crawford v.

Washington, 124 S. Ct. 1354 (2004).

       Crawford involved a defendant’s right under the Confrontation

Clause during his criminal trial.           124 S. Ct. at 1356-58.         Prior to

Crawford, this court had not recognized such a right at sentencing.

See United States v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999).

Nothing in Crawford indicates that its holding is applicable to

sentencing    proceedings.           Therefore,     Edwards’s      contention      is

foreclosed by Navarro.

       Finally,     Edwards    contends      that     the      relevant        conduct

determination and possession of a dangerous weapon enhancement were

improper in light of Blakely v. Washington, 124 S. Ct. 2531 (2004).

Because Edwards did not object on this basis in the district court,

this court’s review is for plain error.                   See United States v.

Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed,

No. 04-9517 (U.S. Mar. 31, 2005).

       Although Edwards’s sentence was enhanced based on facts that

were   neither     admitted    by    him   nor   found    by   a   jury   beyond    a

reasonable doubt, he has not demonstrated that this plain error

affected his substantial rights.            Edwards has failed to point to

any evidence in the record indicating that the same sentence would
                                  No. 04-40744
                                       -7-

not have been imposed had the district court known that the

Sentencing Guidelines were advisory.             The record itself gives no

indication that the district court would have reached a different

result under an advisory guidelines scheme.               The district court

found that although a sentence at the lowest end of the guideline

range was still a high sentence, it was warranted because other

periods of supervision and incarceration had not deterred Edwards’s

criminal    behavior,     he    had   prior    convictions   for   delivery       of

controlled substances, he had several pending charges, and he

continued   to   engage    in    drug-trafficking.       Given     the    lack    of

evidence indicating that the district court would have reached a

different    conclusion,       Edwards   has    not   demonstrated       that    his

substantial rights were affected, and, thus, he has failed to

establish plain error.          See Mares, 402 F.3d at 520-22.

     Accordingly, the district court’s judgment is AFFIRMED.
