                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1614
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Michael James Schlosser,                *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 12, 2008
                                Filed: March 3, 2009
                                 ___________

Before MURPHY, RILEY and GRUENDER, Circuit Judges.
                           ___________

GRUENDER, Circuit Judge.

      After Michael James Schlosser pled guilty to theft of mail matter in violation
of 18 U.S.C. § 1708, the district court1 sentenced him to 18 months’ imprisonment.
Schlosser appeals his sentence, arguing that the district court imposed a procedurally
flawed sentence because it relied on hearsay evidence and improperly delegated fact-
finding to a magistrate judge and that the district court imposed a substantively
unreasonable sentence. For the reasons discussed below, we affirm.


      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
I.    BACKGROUND

       On August 30, 2007, a federal grand jury indicted Michael James Schlosser on
one count of theft of mail matter and one count of obstructing correspondence. After
Schlosser’s arraignment, the district court released him from custody on a personal
recognizance bond. One condition of the bond stated that Schlosser “shall not commit
any offense in violation of federal, state or local law (including tribal) while on release
in this case.” Another condition of the bond stated that Schlosser shall “not possess
a firearm, destructive device, or other dangerous weapon.”

       On October 6, 2007, while Schlosser was free on the bond, South Dakota state
police arrested him for fourth degree burglary, possession of stolen property,
damaging and tampering with highway signs and markers, and intentional damage to
property. According to the police incident report, Schlosser and a juvenile male used
a stolen firearm to shoot at mailboxes, at road signs, and at a house containing five
individuals. Based on the arrest, the United States Probation Office submitted a report
of apparent bond violation to the district court. While the state charges remained
pending, Schlosser was transferred to federal custody pursuant to a writ of habeas
corpus ad prosequendum.

       Schlosser entered into a plea agreement with the Government whereby he pled
guilty to mail theft in exchange for a dismissal of the obstructing correspondence
count. He remained in federal custody until his sentencing hearing on February 8,
2008. The Presentence Investigation Report (“PSR”) calculated Schlosser’s total
offense level at 6, which included a two-level increase for a crime involving 10 or
more victims pursuant to U.S.S.G. § 2B1.1(b)(2)(a)(i) and a two-level decrease for
acceptance of responsibility pursuant to U.S.S.G. § 3E.1. The district court denied
Schlosser the two-level adjustment for acceptance of responsibility, which resulted in
a total offense level of 8, criminal history category of I, and advisory sentencing
guidelines range of 0-6 months.

                                            -2-
       Next, the district court discussed the 18 U.S.C. § 3553(a) factors, stating that
the pending state charges “would constitute very serious violations of his bond
conditions” and that “it’s the obligation of this Court to have a full understanding of
the background of this defendant and to determine which of those [§ 3553(a)]
factors . . . apply here, including whether he’s a threat to the public.” The court then
continued the sentencing hearing and ordered an evidentiary hearing on Schlosser’s
bond violations, referring it to a magistrate judge over Schlosser’s objection.

      On February 13, 2008, Magistrate Judge Myles J. Devine conducted a bond
revocation hearing. Schlosser offered to waive the hearing, admitting that probable
cause existed to believe he committed the offense of possession of stolen property.
Nevertheless, the magistrate judge proceeded with the hearing. The probation officer
assigned to Schlosser’s case testified about the incident report, which detailed the
alleged conduct underlying Schlosser’s arrest. The magistrate judge admitted the
incident report over Schlosser’s objection. Ultimately, the magistrate judge revoked
Schlosser’s bond, concluding that probable cause supported the state charges.

      The district court resumed Schlosser’s sentencing hearing on February 21,
2008. The court noted Schlosser’s multiple bond violations and recounted the details
of the conduct underlying the state offenses from the police incident report.
Accordingly, the court imposed an upward variance, specifically citing the need “to
promote respect for the law, to afford adequate deterrence to criminal conduct, and
most importantly, to protect the public from further crimes of the defendant.” The
court sentenced Schlosser to 18 months’ imprisonment. Schlosser appeals his
sentence, arguing that the district court erred procedurally by relying on the incident
report and by using the bond revocation hearing as a fact-finding hearing for
sentencing purposes. He further contends that the court abused its discretion by
imposing a substantively unreasonable sentence.




                                          -3-
II.   DISCUSSION

       In reviewing a sentence, we first consider whether the district court committed
“significant procedural error.” Gall v. United States, 552 U.S. ---, 128 S. Ct. 586, 597
(2007). Schlosser argues that the district court erred by relying on the incident report
during the sentencing hearing because it was hearsay evidence that lacked sufficient
indicia of reliability.2 Because Schlosser did not object to the district court’s
consideration of the incident report at sentencing, we review for plain error. See
United States v. Shepard, 329 F.3d 619, 621 (8th Cir. 2003). “[B]efore an appellate
court can correct an error not raised at trial, there must be (1) error, (2) that is plain,
and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-
67 (1997) (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 467 (internal quotations omitted). The burden is on the defendant
to prove plain error. United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en
banc).

       Congress has provided that “no limitation shall be placed on the information
concerning the background, character, and conduct of a person” that a court may
“consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.
“[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited
either as to the kind of information he may consider, or the source from which it may
come.” United States v. M.R.M., 513 F.3d 866, 870 (8th Cir.), cert. denied, 555 U.S.
---, 129 S. Ct. 171 (2008) (quotation omitted). “Hearsay is admissible in a sentencing
hearing and can be used to determine facts if the hearsay has sufficient indicia of


      2
       Schlosser also challenges the magistrate judge’s reliance on the incident report
during the bond revocation hearing. However, Schlosser does not appeal his bond
revocation so we do not address this argument.

                                            -4-
reliability.” United States v. Hansel, 524 F.3d 841, 847 (8th Cir.), cert. denied, 555
U.S. ---, 129 S. Ct. 520 (2008); see also United States v. Irvin, 219 Fed. Appx. 617,
619 (8th Cir. 2007) (unpublished per curiam) (using the “indicia of reliability”
standard when analyzing the district court’s use of hearsay evidence to support a
variance); cf. U.S.S.G. § 6A1.3(a). “The determination of whether hearsay evidence
is sufficiently reliable to support a sentencing decision depends on the facts of the
particular case and is committed to the sound discretion of the district court.” United
States v. Cassidy, 6 F.3d 554, 557 (8th Cir. 1993) (internal citation omitted).

         Several aspects of the incident report demonstrate sufficient indicia of
reliability. Schlosser’s admission that probable cause existed to support the
possession of stolen property charge corroborates part of the report. See United States
v. Bell, 785 F.2d 640, 644 (8th Cir. 1986). Moreover, the report itself is quite
“detailed and convincing.” See id. For instance, the report contains statements from
the owners of the house identifying Schlosser’s vehicle as the vehicle from which they
saw someone shooting. The report recounts that the officers found the stolen firearm
in the attic of the juvenile male who had been with Schlosser. The report also states
that at “every place [the officers] stopped, [the officers] found bullet holes or shell
casings or both which verified the story.” Thus, we conclude that Schlosser failed to
meet his burden of showing that the district court’s reliance on the incident report
during sentencing rises to the level of plain error. See Pirani, 406 F.3d at 550.
       We next address Schlosser’s contention that the district court erred procedurally
by improperly delegating the bond revocation hearing to a magistrate judge for the
purpose of determining facts relevant to an upward variance from Schlosser’s advisory
guidelines range. In support of this argument, Schlosser points to the district court’s
statement after the bond revocation hearing that the court ordered the revocation
hearing to “make sure that [the state charges] were true.”

      A district court typically has broad discretion to refer evidentiary hearings to
a magistrate judge. See 28 U.S.C. § 636(b)(1)(B) (providing that subject to limited

                                          -5-
exceptions, “a judge may . . . designate a magistrate judge to conduct hearings,
including evidentiary hearings”). However, as the magistrate judge explicitly
recognized in this case, his authority during the bond revocation hearing was limited
to a determination of whether probable cause supported a finding that Schlosser
violated the terms of his bond. See 18 U.S.C. § 3148(b). Thus, had the district court
relied on the magistrate judge’s findings of fact as proof by a preponderance of the
evidence that Schlosser engaged in the conduct underlying the bond violations, that
would be error. See United States v. Brown, 453 F.3d 1024, 1026 (8th Cir. 2006)
(explaining that the standard of proof at sentencing is preponderance of the evidence);
see also Gomez v. United States, 490 U.S. 858, 876 (1989) (explaining that a basic fair
trial right “is a defendant’s right to have all critical stages of a criminal trial conducted
by a person with jurisdiction to preside”).

       However, in this case, we are convinced that the district court did not err
because it did not rely on the magistrate judge’s findings of fact, despite the court’s
statement that it ordered the bond revocation hearing to “make sure that [the state
charges] were true.” Cf. United States v. O’Dell, 204 F.3d 829, 837 (8th Cir. 2000)
(finding no error where the district court enhanced a defendant’s sentence after it
“made its own independent findings” regarding the defendant’s conduct during a bond
revocation hearing before a magistrate judge). To the contrary, during the sentencing
hearing, the district court clearly relied on the unobjected-to PSR3 and the police


       3
        Schlosser argues that the district court could not have relied on the PSR to
prove that he committed the state offenses. He contends that the PSR merely
established that the state charges remained pending and that an incident report detailed
the allegations against him. Because these statements are literally true, Schlosser
argues that he could not have objected to the PSR. While Schlosser’s attorney
conceded at oral argument that the better practice would have been to object to the
underlying facts reported in the PSR, we need not address this issue. The incident
report established all of the facts listed in the PSR, and because we conclude that the
district court could rely on the incident report, any error in relying on the PSR would
be harmless. Cf. United States v. Beatty, 9 F.3d 686, 690-91 (8th Cir. 1993) (finding

                                            -6-
incident report, which it referenced repeatedly. When recounting Schlosser’s conduct,
the district court mentioned multiple details that are only present in the police incident
report, not the magistrate judge’s findings of fact. Thus, we conclude that the district
court made its own independent findings based on the incident report, a document that
sufficiently supports the district court’s findings. Accordingly, because the district
court properly considered the incident report and did not rely on the magistrate
judge’s fact-finding from the bond revocation hearing, we find no significant
procedural error in Schlosser’s sentence.

       Finally, we address Schlosser’s claim that his sentence was substantively
unreasonable because, in varying from the advisory guidelines range, the district court
placed too much weight on the conduct underlying his bond violations. We review
the substantive reasonableness of a sentence for an abuse of discretion. Gall, 128 S.
Ct. at 597. “A district court abuses its discretion and imposes an unreasonable
sentence when it . . . gives significant weight to an improper or irrelevant factor.”
United States v. Saddler, 538 F.3d 879, 890 (8th Cir.), cert. denied, 555 U.S. ---, 129
S. Ct. 770 (2008). A sentence outside of the advisory guidelines range is not
presumptively unreasonable. United States v. Braggs, 511 F.3d 808, 812 (8th Cir.
2008).

       We reject Schlosser’s argument. The district court explained why, given the
sentencing factors under § 3553(a), it imposed the upward variance. The court stated
that Schlosser’s offenses were “the most flagrant bond violations [the court had] ever
seen,” finding that the upward variance was needed to “promote respect for the law,
to afford adequate deterrence to criminal conduct, and, most importantly, to protect
the public from further crimes of the defendant.” Bond violations may be properly
considered in imposing upward variances, a fact Schlosser conceded during

harmless error where district court violated Federal Rule of Civil Procedure
32(c)(3)(D) by relying on disputed PSR paragraphs but the court’s ultimate sentence
was supported by properly determined facts).

                                           -7-
sentencing. See United States v. Red Bird, 450 F.3d 789, 795 (8th Cir. 2006); United
States v. Long Soldier, 431 F.3d 1120, 1123-24 (8th Cir. 2005). Moreover, pre-trial
conduct, including conduct while free on bond, is an appropriate consideration “under
§ 3553(a), because it is relevant to the history and characteristics of the defendant, and
to the need for the sentence to promote respect for the law.” Red Bird, 450 F.3d at
795. Considering the seriousness of Schlosser’s pre-trial conduct, we cannot say that
the district court abused its discretion by imposing the upward variance, and we
conclude that Schlosser’s sentence is not unreasonable.

III.   CONCLUSION

       For the foregoing reasons, we affirm Schlosser’s sentence.
                       ______________________________




                                           -8-
