                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             AUGUST 15, 2007
                             No. 06-15163                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 04-60192-CR-MGC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

EDWARD MELVIN,

                                                         Defendant-Appellant.


                       ________________________

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

                            (August 15, 2007)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:
       This appeal is the third time this case has been before us. Edward Melvin

appeals his 100-month sentence imposed on remand for distribution and possession

with intent to distribute cocaine base within 1,000 feet of a playground. At the

most recent resentencing hearing, the district court neither violated Melvin’s

constitutional right to confrontation by admitting lab reports, nor afforded

dispositive weight to the sentencing guidelines. Accordingly, for the reasons set

out below, we AFFIRM.

                                I. BACKGROUND

       A federal grand jury indicted Melvin on three counts of distribution and

possession with intent to distribute cocaine base within 1,000 feet of a playground,

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860. Melvin pled guilty

to all three counts.

       According to the presentence investigation report (“PSI”), the Hallandale

Beach Police Department, in conjunction with the Drug Enforcement Agency

(“DEA”), executed three controlled purchases of cocaine base from Melvin. The

probation officer assigned Melvin a base offense level of 28, pursuant to U.S.S.G.

§ 2D1.2(a)(1), because the offense involved more than 5 grams, but less than 20

grams, of cocaine base within a protected location. Melvin received a three-level

reduction, pursuant to U.S.S.G. §§ 3E1.1(a) and (b), because he accepted



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responsibility and pled guilty in a timely manner. Accordingly, Melvin’s total

offense level was 25. Melvin’s criminal history category was V. Based on the

total offense level of 25 and the criminal history category of V, Melvin’s

recommended sentencing range was 100 to 125 months of imprisonment.

      Melvin raised several objections to the PSI, including that he had not pled

guilty to, nor had the indictment alleged, a specific drug quantity as reported in the

PSI. The district court overruled Melvin’s objections and sentenced him to 100

months of imprisonment. Melvin appealed his sentence, and we held that: (1) the

district court constitutionally erred by enhancing Melvin’s sentence, under a

mandatory guidelines scheme, based on facts neither included in the indictment nor

admitted by him; (2) the district court’s treatment of the guidelines as mandatory

constituted statutory error; and (3) because it was unclear what sentence the district

court would have imposed under an advisory system, the government failed to

meet its burden of showing that the error was harmless. Accordingly, we vacated

and remanded Melvin’s sentence “for resentencing under an advisory guidelines

scheme.” United States v. Melvin, 152 Fed. App’x 792, 795 (11th Cir. 2005).

      At resentencing, Melvin reiterated his contention that his base offense level

should be 12, the lowest offense level for an offense involving cocaine base,

because the drug quantity proffered by the government was neither admitted to by



                                           3
Melvin nor proven to a jury. The government responded that the district court

could determine the drug quantity by a preponderance of the evidence under an

advisory guidelines scheme. Melvin argued that lab reports would be insufficient

to establish the drug quantity because he would object to the amount. He also

reminded the district court that it had indicated at the initial sentencing hearing that

Melvin’s guideline range was too high. The district court then stated:

      I believe last summer, at least for me, we were all trying to navigate
      the kind of rough waters of Booker, Blakely, and Reese. I believe,
      and there are certain of these resentences that I have done and the
      sentences remain the same. But in this case I believe there are some
      adjustments that need to be made given the way that the indictment in
      this case was written.

R4 at 7. The district court then concluded that the base offense level was 12, the

criminal history category was V, and the resulting guidelines range was 27 to 33

months of imprisonment. Prior to imposing the sentence, the district court noted

that “this defendant deserves an incarcerated sentence. With a criminal history of

five, he hasn’t learned his lesson. . . . your client is no babe in the woods, Mr.

Lautenbach.” Id. at 8. The district court sentenced Melvin to 33 months of

imprisonment. The government appealed Melvin’s sentence.

      We vacated and remanded for resentencing. We held that the district court

erred when it concluded that “it could not calculate the guideline range by using a

drug quantity neither included in the indictment nor admitted to by Melvin.”

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United States v. Melvin, 190 Fed. App’x 865, 869 (11th Cir. 2006). We held that

the district court had an obligation “to determine the drug quantity under a

preponderance of the evidence standard.” Id.

      At the third sentencing hearing, the district court began by explicitly

referring to the guidelines as advisory. The government offered four DEA lab

reports that indicated that Melvin’s drug transactions involved a total of 5.63 grams

of cocaine base. Relying on United States v. Frazier, 26 F.3d 110 (11th Cir. 1994),

Melvin objected to the lab reports. He argued that hearsay was not automatically

admissible in a sentencing hearing without a court-conducted balancing test to

determine the government’s reason for not presenting a witness.

      The government called Carlos Diaz, a DEA forensic chemist. Diaz

explained his credentials and the process used by the DEA to weigh controlled

substances. He personally conducted two of the lab reports before the district

court. He described the testing procedures, and he testified that the amounts

documented in the reports were accurate. In addition, he testified as to the

conclusions reached in the two lab reports that he did not personally perform.

Melvin again objected, and the district court overruled the hearsay objections. On

cross-examination, Diaz acknowledged that he had not personally conducted, nor




                                          5
observed, two of the tests. He reviewed those lab reports, and he stated that the

correct procedures were followed.

       Melvin argued that the lab reports not conducted by Diaz should not be

considered because the district court had failed to follow Frazier, resulting in the

admission of hearsay and the violation of his due process rights. He asserted that

the district court should only take into account 1.7 grams, which is what the

government was able to prove. The government contended that: (1) it had to prove

the drug quantity by a preponderance of the evidence, and hearsay was admissible

in sentencing proceedings; and, (2) Diaz adequately explained the DEA’s standard

procedures. Melvin argued that the analyst who performed the contested tests was

available, and he should have been presented to the district court.

       The district court opined that it could use lab reports if it found the reports

reliable. Accordingly, the district court found that the government had proven by a

preponderance of the evidence that Melvin was accountable for 5.63 grams of

cocaine base. Melvin’s total offense level was 25, his criminal history category

was V, and his sentencing range was 100 to 125 months of imprisonment. The

district court began to impose its sentence, stating, “[h]aving re-reviewed the pre-

sentence report, as well as the factors in 3553(c),”1 when Melvin requested an


       1
        The factors to be reviewed in imposing a sentence are found at 18 U.S.C. § 3553(a). The
most plausible explanation is that the district court accidentally cited § 3553(c), as it did reference

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opportunity to inform the court of some additional facts. R5 at 29. He claimed to

have “turned over the proverbial new leaf,” citing his clean disciplinary record in

prison and his successful completion of numerous “programs.” Id. at 29-30.

Melvin personally addressed the district court, stating that he had “been walking

with God” and was a changed man. Id. at 31. The district court sentenced him to

100 months of imprisonment and a supervised release term of 6 years. Melvin

reiterated his due process objections.

                                     II. DISCUSSION

       On appeal, Melvin argues that the 67-month increase in his sentence

indicates that the district court placed “undue weight” on the guidelines, thereby

violating United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). During the

first resentencing hearing, the district court stated that Melvin “deserved” a 33-

month sentence, R4 at 8, and, thus, Melvin contends that the only explanation for

the increased prison term is that the court believed it had to impose a sentence

within the guidelines range. He asserts that the guidelines were given “dispositive

weight” and had a “dispositive effect” on his sentence in violation of Booker.

Appellant’s Br. at 5.




reviewing “the factors.” See R5 at 29.

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       “[A] sentence may be reviewed for procedural or substantive

unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.

2006). “A sentence may be unreasonable if it is the product of a procedure that

does not follow Booker’s requirements, regardless of the actual sentence.” Id.

Normally, we review such legal issues concerning the guidelines de novo. Id. at

1183 (citation omitted). Where the Booker objection is not raised before the

district court, however, we review for plain error. United States v. Shelton, 400

F.3d 1325, 1328 (11th Cir. 2005) (citation omitted). “An appellate court may not

correct an error the defendant failed to raise in the district court unless there is: (1)

error, (2) that is plain, and (3) that affects substantial rights.” Id. at 1328-29

(citation and internal quotation omitted). “If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1329 (citation and internal quotation omitted).

       In Booker, the Supreme Court (1) held that sentence enhancements based

solely on judicial fact-finding pursuant to the mandatory Federal Sentencing

Guidelines violated the Sixth Amendment, and (2) excised the provisions of the

Sentencing Reform Act that made the guidelines mandatory - 18 U.S.C.

§§ 3553(b)(1) and 3742(e) - thereby effectively rendering the Sentencing



                                             8
Guidelines advisory only. 543 U.S. at 232-35, 258-59, 125 S.Ct. at 749-51, 764.

We have explained that there are two types of Booker error: (1) Sixth Amendment

error based upon sentencing enhancements under a binding guidelines system; and

(2) error based upon sentencing under a mandatory guidelines system. Shelton,

400 F.3d at 1329-31.

      “[A] district court may determine, on a case-by-case basis, the weight to give

the Guidelines, so long as that determination is made with reference to the

remaining section 3553(a) factors that the court must also consider in calculating

the defendant’s sentence.” Hunt, 459 F.3d at 1185. “[N]othing in Booker or

elsewhere requires the district court to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). We have

further noted that a district court’s explicit acknowledgment that it had considered

the defendant’s arguments and the factors set out in § 3553(a) would alone be

sufficient. Id. at 1330. In determining if the district court has adequately

considered the defendant’s arguments and the § 3553(a) factors, we can look to the

district court’s statements over the entire sentencing hearing. See United States v.

Williams, 435 F.3d 1350, 1355 (11th Cir. 2006) (per curiam).




                                            9
      Here, whether reviewing under a plain error or de novo standard of review,

the district court’s imposition of sentence was not procedurally unreasonable.

Melvin’s appeal is predicated upon his argument that the 67-month difference in

his sentence between the first resentencing hearing and the second resentencing

hearing can only be explained by the district court giving undue or dispositive

weight to the guidelines. The district court, however, stated that it considered the §

3553 factors, and it granted Melvin the opportunity to present evidence on why he

should receive a sentence below the guidelines range. See Hunt, 459 F.3d at 1185.

In addition, the district court began the second resentencing hearing by explicitly

referring to the guidelines as advisory. Melvin’s argument regarding the district

court’s remark that he “deserved” a 33-month sentence is misleading. The district

court observed that he deserved an incarcerated sentence, and its 33-month

sentence was imposed under an improperly calculated guidelines range. The

district court’s sentence was not procedurally unreasonable as the court clearly

understood it was sentencing under an advisory guidelines scheme and it

considered the § 3553 factors. See Scott, 426 F.3d at 1330. Melvin offers no

argument as to the substantive reasonableness of the 100-month sentence.

Accordingly, there was no procedural error in the district court’s imposition of

sentence, and it did not treat the guidelines as dispositive or mandatory.



                                          10
      Melvin argues that the district court erred in relying on lab reports to

establish the drug quantity attributable to him. Melvin argues that the district

court’s decision to credit two reports without hearing testimony from the lab

analyst who prepared the reports deprived him of his right to confront the analyst.

He contends that the government could not satisfy a preponderance of the evidence

standard because the reports were not authenticated or corroborated. He argues

that the technician’s absence deprived him of his right to confrontation.

      We review constitutional challenges to a sentence de novo. United States v.

Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005) (per curiam) (citation omitted),

cert. denied, 126 S.Ct. 1604 (2006). “[R]eliable hearsay can be considered during

sentencing.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (per

curiam) (citations omitted). The district court can rely on such evidence “as long

as the evidence has sufficient indicia of reliability, the court makes explicit

findings of fact as to credibility, and the defendant has an opportunity to rebut the

evidence.” Id. (citation and internal quotation omitted). In addition, we have

noted that the Supreme’s Court’s holding in Crawford v. Washington, 541 U.S. 36,

68, 124 S.Ct. 1354, 1374 (2004) (holding that testimonial hearsay cannot be

introduced at trial unless the declarant was unavailable and the defendant has had a

prior opportunity to cross-examine the declarant), did not address the use of



                                           11
hearsay during sentencing proceedings, meaning that courts could still base

sentencing determinations on reliable hearsay. United States v. Baker, 432 F.3d

1190, 1254 n.68 (11th Cir. 2005), cert. petition filed, No. 06-11248 (Aug. 24,

2006). The right to confrontation is a trial right and not a sentencing right.

Cantellano, 430 F.3d at 1146.

      In Frazier, we held that minimal due process requirements, such as the right

to confront adverse witnesses, are applicable to revocation proceedings. 26 F.3d at

114. In the context of supervised release revocation proceedings, district courts

must “balance the defendant’s right to confront adverse witnesses against the

grounds asserted by the government for denying confrontation.” Id. (citations

omitted). If the district court admits hearsay, then it must be reliable. Id. (citation

omitted).

      Melvin’s argument is precluded by our precedent. He frames the argument

as a violation of his confrontation rights, claiming that the district court failed to

balance his confrontation rights with the reasons that the government denied

confrontation. We have specifically held, however, that the right to confrontation

is not a sentencing right. Castellano, 430 F.3d at 1146. His reliance upon Frazier

for the argument that his confrontation rights were violated is misplaced because

that case dealt with revocation proceedings. It is worth noting, even though



                                            12
Melvin does not appeal on these grounds, that the district court credited Diaz’s

testimony regarding the lab reports and allowed Melvin to challenge the reports.

Thus, a hearsay challenge fails as well. See Zlatogur, 271 F.3d at 1031.

                               III. CONCLUSION

      Melvin challenges his sentence upon two grounds: (1) the sentencing court

afforded the guidelines too much weight in violation of Booker; and, (2) the

sentencing court erred in relying upon certain laboratory reports to establish doing

quantity. For the reasons set out above we find no reversible error. Accordingly,

we AFFIRM.




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