          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                                November 14, 2007
                                 No. 06-20966
                               Summary Calendar              Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

DAVID DUQUE, JR

                                           Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:06-CR-239-ALL


Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
      David Duque, Jr., appeals his guilty-plea conviction and 168-month
sentence for one count of bribery of a public official, in violation of 18 U.S.C.
§ 201(b)(2)(A) and (C), and his concurrent 60-month sentence for three counts of
unlawful use or transfer of identification documents, in violation of 18 U.S.C.
§ 1028(a)(3). Duque presents three arguments on appeal, all of which pertain
to his sentence.



      *
      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should not be published and is not precedent except under the limited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. 06-20966

      The record shows that Duque admitted to a single incident of assisting in
the transport of approximately 4.8 kilograms of cocaine through the checkpoint
to which he was assigned while employed as an agent with the United States
Border Patrol Service. Duque also admitted to the illegal sale of identification
documents on several occasions.
      During Duque’s sentencing hearing, the Government called FBI Special
Agent Peter Hanna to testify regarding Duque’s other relevant conduct. Agent
Hanna testified that he received information from four confidential sources
regarding other illegal acts committed by Duque. One of the sources revealed
to Agent Hanna that Duque assisted in getting 15 kilograms of cocaine through
his checkpoint in 2002, and approximately another 25 kilograms of cocaine,
along with marijuana, through his checkpoint in 2003. The other sources
provided information about additional illegal activities by Duque, including at
least two other occasions of allowing narcotics through his checkpoint. Agent
Hanna also testified that Duque agreed to take a polygraph test, the results of
which showed that Duque showed deception regarding whether there were other
occasions on which he received money for allowing things to come through the
checkpoint to which he was assigned.
      Duque’s presentence report (PSR) calculated his base offense level at 36
because his offense was committed for the purpose of facilitating a drug offense,
and due to his involvement with at least 51.8 kilograms of cocaine and 5,080.3
kilograms of marijuana. See U.S.S.G. §§ 2C1.1(c) and 2D1.1. Duque argues that
his base offense level should have been only 30 because he only admitted to
helping transport 4.8 kilograms of cocaine. By increasing his base offense level
from 30 to 36, Duque notes, his sentencing range under the Sentencing
Guidelines (after adjustment for acceptance of responsibility) was increased from
70-97 months to 135-168 months.
      According to Duque, the district court’s imposition of a 168-month
sentence was therefore unreasonable because it was calculated by using relevant

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conduct that he did not admit to and that was not proven beyond a reasonable
doubt. Duque also contends that the district court did not adequately articulate
its reasons pursuant to 18 U.S.C. § 3553(a) for imposing his sentence.
      Following Booker, sentences are reviewed for unreasonableness. United
States v. Booker, 543 U.S. 220, 261-63 (2005). A sentence imposed with a
properly calculated guidelines range is presumed reasonable. The use of such
a presumption was recently upheld by the Supreme Court in Rita v. United
States, 127 S.Ct. 2456, 2462 (2007). It will be rare for a reviewing court to say
that a sentence within a properly calculated guidelines range is unreasonable.
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
      The record in the present matter shows that the district court adequately
articulated its reasons under 18 U.S.C. § 3553(a) for imposing Duque’s sentence.
Duque has not shown that the district court erred concerning his relevant
conduct, and has failed to rebut the presumption that his sentence was
reasonable.
      Duque concedes that his second argument is foreclosed, but he wishes to
preserve it for further appellate review.      He contends that his right of
confrontation was violated because he was not afforded an opportunity to
confront the four confidential sources whose information was presented to the
district court through the hearsay testimony of Agent Hanna. As Duque admits,
this court has rejected a confrontation right at sentencing hearings. United
States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006), citing Crawford v.
Washington, 541 U.S. 36 (2004). In Beydoun, this court further held that there
is no Crawford violation when hearsay testimony is used at sentencing, rather
than at trial. Beydoun, 469 F.3d at 108. Under existing case law, Duque’s
argument is without merit.
      Duque’s final argument is that the district court may have committed
plain error by allowing Agent Hanna’s hearsay testimony of the results of his
polygraph examination to help show relevant conduct. Duque admits, however,

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that he did not object to the testimony during the hearing, and would therefore
have to show plain error.
      To establish plain error, Duque must demonstrate (1) an error, (2) that is
clear or plain, and (3) that affected his substantial rights. United States v.
Vasquez-Zamora, 253 F.3d 211, 213 (5th Cir. 2001). Even if those elements are
established, this court may exercise its discretion to correct the error only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).
      As noted above, hearsay testimony is allowable at sentencing hearings.
Beydoun, 469 F.3d at 108.        Furthermore, there is no per se rule against
admissibility of polygraph evidence. United States v. Posado, 57 F.3d 428, 431-
36 (5th Cir. 1995). Nor do the Federal Rules of Evidence govern sentencing
hearings.   FED. R. EVID. 1101(d)(3);   U.S.S.G. § 6A1.2(a). A defendant, however,
does have the burden of showing that information relied upon at sentencing is
materially untrue. United States v. Chavez, 119 F.3d 342, 349 (5th Cir. 1997).
      Duque has failed to carry that burden. Moreover, he admits in his brief
that neither he nor the Government argued the results of the polygraph test
during the sentencing hearing, and the district court made no reference to the
polygraph in announcing his sentence. Duque has thus also failed to show that
his substantial rights were affected by admission of Agent Hanna’s testimony
about the polygraph test during the sentencing hearing to show relevant
conduct.
      Accordingly, the decision of the district court is AFFIRMED.




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