                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 05-50698
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-04-03237-LAB
DENNIS EVAN INGHAM,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
         for the Southern District of California
        Larry A. Burns, District Judge, Presiding

                  Argued and Submitted
          October 18, 2006—Pasadena, California

                  Filed February 6, 2007

      Before: Harry Pregerson, Ronald M. Gould, and
            Richard R. Clifton, Circuit Judges.

                 Opinion by Judge Gould




                           1435
1438             UNITED STATES v. INGHAM


                      COUNSEL

Steven L. Barth, San Diego, California, for defendant-
appellant Dennis Evan Ingham.

Sherri Walker Hobson and Stephen Tokarz (argued), Assis-
tant United States Attorneys, San Diego, California, for
plaintiff-appellee United States of America.
                   UNITED STATES v. INGHAM                 1439
                          OPINION

GOULD, Circuit Judge:

   Dennis Evans Ingham entered a plea of guilty on one count
of conspiracy to distribute marijuana under 21 U.S.C. §§ 841
and 848. In light of a four-point increase in the offense level
for Ingham’s aggravating role as organizer/leader under sec-
tion 3B1.1(a) of the United States Sentencing Guidelines
(“the Guidelines”), the district court imposed a 100-month
sentence, which was three months more than the top of the
calculated guideline range due to Ingham’s extensive criminal
history. Ingham argues that the district court did not reconcile
his objection under Federal Rule of Criminal Procedure
32(i)(3) that only a two-point increase in the offense level was
proper because the district court did not explicitly address the
question of whether Ingham exercised control over his fellow
co-conspirators. Ingham also argues that the Presentence
Report (“PSR”) that recommended the four-point enhance-
ment in the offense level included unreliable hearsay. Ingham
argues additionally that, under United States v. Booker, 543
U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004);
and Apprendi v. New Jersey, 530 U.S. 466 (2000), the facts
underpinning the organizer/leader role must be admitted by
the defendant or proved by a jury beyond a reasonable doubt.
Finally, Ingham contends that the district court’s application
of the advisory Guidelines under Booker was contrary to the
Ex Post Facto and Due Process Clauses of the United States
Constitution. We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742.

                               I

  On December 21, 2004, an indictment was filed against
Ingham, alleging two felony counts for conspiracy to import
and distribute marijuana in excess of 100 kilograms. On April
28, 2005, Ingham waived the indictment and was charged on
a superseding information with a single count of conspiracy
1440               UNITED STATES v. INGHAM
to distribute forty-six kilograms or more of marijuana in vio-
lation of 21 U.S.C. §§ 841 and 848. That same day, Ingham
entered into a plea agreement acknowledging that he was sub-
ject to a maximum statutory sentence of 120 months, a
$500,000 fine, and at least four years of supervised release.
Under the plea agreement, Ingham also admitted the factual
basis of a narcotics smuggling conspiracy that began in Feb-
ruary 2004 and ended on June 23, 2004, and that “he acted as
a leader and manager of this importation conspiracy.”

   On June 27, 2005, a PSR was filed that made the following
undisputed factual findings regarding the conspiracy: In
August 2003, a special agent with United States Immigration
and Customs Enforcement (“ICE”) learned that Ingham may
have been leading an organization involved in smuggling
large quantities of narcotics into the United States by boat. As
of February 24, 2004, federal customs agents intercepted
phone conversations indicating Ingham’s desire to coordinate
a maritime smuggling operation covering Mexico, Panama
and Iraq. On March 9, 2004, a cooperating source (“CS”)
approached Ingham in Canada to discuss a more immediate
plan to smuggle drugs from Canada into the United States, the
proceeds of which Ingham contemplated using to finance the
larger maritime venture involving Mexico, Panama and Iraq.
In initiating the more immediate plan, Ingham contacted a
pilot, who was an undercover officer, with an offer to pay up
to $50,000 to fly loads of marijuana into the United States
where Ingham would arrange for transport to California. On
June 1, 2004, Ingham gave the CS $65,000 to start a front cor-
poration to further the maritime smuggling venture. Ingham
also directed the CS and Ingham’s former wife, Kay Samuel-
son, to exchange a total of $13,000 for small denominations
to be used in aid of the smuggling operation. On June 20,
2004, federal agents observed Samuelson visit three separate
banks where she exchanged $3,000 for $100 bills.

   Also on June 20, 2004, Ingham, Ritch and the undercover
officer discussed routes and time schedules for transporting
                    UNITED STATES v. INGHAM                  1441
the narcotics within Orange County, California. On June 23,
2004, three other co-conspirators and the CS gathered at an
airstrip in Kalso, British Columbia, a location selected by
Ingham, where the co-conspirators would meet the pilot/
undercover officer who in turn would undertake the first trip
to the United States. Before the plane’s arrival, however, the
Royal Canadian Mounted Police, who were conducting sur-
veillance of the airstrip in concert with U.S. border patrol
agents, interdicted the operation and arrested the co-
conspirators, seizing a total of 99.45 kilograms of marijuana
and nearly 19,000 ecstasy pills.

   A fourth co-conspirator, Daniel Hall, was also arrested on
June 23, 2004 in Seattle, Washington while under surveillance
by ICE agents. According to Hall, Ingham had previously
provided him with a cell phone, $900 and airplane tickets
from California to Seattle. At the Seattle airport, Hall met an
unknown man with a vehicle that, without Hall’s knowledge,
had been equipped with a tracking device. Hall drove the
vehicle to meet three other individuals who led him to a Seat-
tle neighborhood to pick up several bags. When ICE agents
triggered the kill switch on the vehicle, Hall was arrested with
a total of forty-six kilograms of marijuana. In a post-arrest
statement, Hall stated that Ingham had provided him with
funds and instructions to drive the narcotics shipment to Cali-
fornia. Later that day, after the transaction with Hall, the three
individuals traveled to the Canadian border where their car
was searched and $160,000 was discovered behind the glove
box.

  On January 28, 2005, Ingham was arrested in Laguna
Beach, California on charges arising out of the marijuana
smuggling conspiracy.

   The district court conducted two sentencing hearings on
August 1 and 8, 2005. At the August 8 hearing, the district
court addressed the main issue of whether Ingham should
receive a two-point (supervisor) enhancement under U.S.S.G.
1442                   UNITED STATES v. INGHAM
§ 3B1.1(c) or a four-point (organizer/leader) enhancement
under U.S.S.G. § 3B1.1(a) for his role in the conspiracy.1 In
the plea agreement, the parties stipulated to the following
baseline calculations: a base offense level of 26 due to 145
kilograms of marijuana that reflected Ingham’s relevant con-
duct, a two-point enhancement for an aggravating role, and a
three-point deduction for acceptance of responsibility. These
calculations would have resulted in a maximum guideline sen-
tence of seventy-eight months. The PSR, however, recom-
mended a four-point aggravating role enhancement,
describing Ingham’s role as follows:

      [Because of Ingham’s plan to fund a larger maritime
      venture], authorities learned of Ingham’s more
      immediate plan to import marijuana from British
      Columbia into the United States. But in order to do
      that, he needed help, which came in the form of
      codefendants Ritch, Walsh, Mehan, Hall, the UC
      pilot, and the CS, all of whom worked at the direc-
      tion of Ingham. Other parties, like Kay Samuelson,
      were tangentially connected to the offense, but not
  1
    The district court also addressed the PSR’s recommendation that a
criminal history category IV was appropriate because Ingham was a career
offender. Ingham had five prior convictions: (1) a 1972 conviction in the
Southern District of Florida for importing 4,000 pounds of marijuana, for
which Ingham served five years; (2) a 1985 conviction in the Northern
District of California for conspiracy to import marijuana with nineteen
others, for which Ingham served seventy-eight months; (3)-(4) two convic-
tions in 1988 in the District of Hawaii and the Western District of Wash-
ington for criminal enterprise and conspiracy to distribute more than 1,000
pounds of marijuana; and (5) a 1988 conviction in the Central District of
California for failure to appear. At the August 1 hearing, the district court
postponed sentencing until August 8, 2005 because the government could
not provide adequate documentation of Ingham’s earlier convictions to
support the recommended enhancement based on Ingham’s purported
career offender status. At the August 8 hearing, the district court found
that the documentation of the 1988 convictions did not show that they
were separate offenses under Shepard v. United States, 544 U.S. 13
(2005), which barred a career offender enhancement.
                    UNITED STATES v. INGHAM                  1443
    charged in the underlying indictment. This conspir-
    acy stretched from San Diego, California, to Kalso,
    British Columbia, and included a drug seizure in
    Seattle, Washington. These events were Ingham’s
    brainchild, and . . . he oversaw just about everything
    that transpired. USSG § 3B1.1(a) provides for a
    four-level increase if the defendant was an organizer
    leader of a criminal activity that involved five or
    more participants. . . . This adjustment accurately
    reflects Ingham’s role in the instant conspiracy.

   In his objections to the PSR, Ingham claimed that he could
not be an organizer/leader because he did not “exercise con-
trol over others.” The probation officer amended the PSR to
address Ingham’s objection to the enhancement:

    Ingham did not report to anyone; everyone reported
    to him and acted at his direction because he con-
    ceived the marijuana importation conspiracy.
    Because it was a far-reaching operation . . . from San
    Diego to British Columbia, Ingham needed to bring
    others in to help him, including the three codefen-
    dants, a pilot, the CS, and Kay Samuelson. There is
    no indication Ingham was managing the conspiracy
    for anyone else. Every organization requires a
    leader, and in this case, Ingham was the leader.

   The district court agreed with the PSR’s “factually based”
analysis, with explicit reference to the events that precipitated
the June 23, 2004 operations as detailed in the PSR. Judge
Burns prefaced his ruling with a recognition that the guideline
calculation was advisory and made the following observations
about his rationale: “Ingham did have a supervisory role over
a plot involving five or more participants. . . . The Probation
Officer finds—and I agree this is an astute observation—all
of the events were Mr. Ingham’s brainchild. . . . To one extent
or another, he oversaw everything. . . . He was extensively
involved [in the criminal activity].”
1444                    UNITED STATES v. INGHAM
   Based on the four-point enhancement, a three-point
decrease for acceptance of responsibility, and a base offense
level of 26, the district court found that the applicable advi-
sory guideline range was 78 to 97 months and imposed a 100-
month sentence and four years supervised release. Although
both parties recommended a 78-month prison term, the dis-
trict court sentenced Ingham to three months above the top of
the guideline range due to Ingham’s extensive criminal his-
tory. Stressing that Ingham was a “kingpin,” the district court
overruled Ingham’s renewed objection that the plea agree-
ment called for a two-point aggravating role increase. This
timely appeal followed.

                                      II

  [1] Ingham first argues that the district court did not com-
ply with Federal Rule of Criminal Procedure 32(i)(3) (“Rule
32”) when it failed to resolve the controverted fact of whether
Ingham exercised control over the other co-conspirators in
imposing a four-point aggravating role enhancement.2 Rule
32(i)(3) provides in pertinent part:

      At sentencing, the court (A) may accept any undis-
      puted portion of the presentence report as a finding
      of fact; [and] (B) must — for any disputed portion
      of the presentence report or other controverted mat-
      ter — rule on the dispute or determine that a ruling
      is unnecessary either because the matter will not
      affect sentencing, or because the court will not con-
      sider the matter in sentencing.
  2
    We review “the district court’s interpretation of the Sentencing Guide-
lines de novo, the district court’s application of the Sentencing Guidelines
to the facts of this case for abuse of discretion, and the district court’s fac-
tual findings for clear error.” United States v. Kimbrew, 406 F.3d 1149,
1151 (9th Cir. 2005). If the sentence resulted from an incorrect application
of the Guidelines, and the error is not harmless, we remand to the district
court for further proceedings. See United States v. Cantrell, 433 F.3d
1269, 1280 (9th Cir. 2006).
                    UNITED STATES v. INGHAM                   1445
Fed. R. Crim. P. 32(i)(3)(A)(B). “It is well settled in this cir-
cuit that when the district court fails to make the required
Rule 32 findings or determinations at the time of sentencing,
we must vacate the sentence and remand for resentencing.”
United States v. Carter, 219 F.3d 863, 866 (9th Cir. 2000). A
district court “may not adopt conclusory statements unsup-
ported by facts or the guidelines.” United States v. Williams,
41 F.3d 496, 499 (9th Cir. 1994) (internal citations and quota-
tion marks omitted). Rule 32 findings “must be ‘express’ or
‘explicit,’ ” United States v. Houston, 217 F.3d 1204, 1208
(9th Cir. 2000), but need not be detailed and lengthy. United
States v. Karterman, 60 F.3d 576, 583 (9th Cir. 1995). Rather,
“they need only state the court’s resolution of the disputed
issues.” Id.

  Section 3B1.1 of the Guidelines informs the district court’s
determination of an increase in offense level based on the
defendant’s aggravating role in the offense:

    (a) If the defendant was an organizer or leader of a
    criminal activity that involved five or more partici-
    pants or was otherwise extensive, increase by 4
    levels.

    (b) If the defendant was a manager or supervisor (but
    not an organizer or leader) and the criminal activity
    involved five or more participants or was otherwise
    extensive, increase by 3 levels.

    (c) If the defendant was an organizer, leader, man-
    ager, or supervisor in any criminal activity other than
    described in (a) or (b), increase by 2 levels.

U.S.S.G. § 3B1.1(a)-(c). The district court should be further
guided by the following factors relevant to the defendant’s
conduct:

    [the] exercise of decision making authority, the
    nature of participation in the commission of the
1446                  UNITED STATES v. INGHAM
      offense, the recruitment of accomplices, the claimed
      right to a larger share of the fruits of the crime, the
      degree of participation in planning or organizing the
      offense, the nature and scope of the illegal activity,
      and the degree of control and authority exercised
      over others.

U.S. Sentencing Guidelines Manual § 3B1.1, cmt. n.4 (2005)
[hereinafter “U.S.S.G. Manual”].

   [2] In United States v. Avila, the case on which Ingham
stakes his argument, we held that “to sustain a finding that a
defendant was an organizer or a leader [under § 3B1.1(a)],
there must be evidence that the defendant exercised some
control over others involved in the commission of the offense
or was responsible for organizing others for the purpose of
carrying out the crime.” 95 F.3d 887, 889 (9th Cir. 1996)
(emphasis added). Ingham cites Avila for the incorrect propo-
sition that a defendant must exercise control and organiza-
tional authority to merit the four-point leader/organizer
enhancement. In other words, Ingham claims that the rule in
Avila is conjunctive.3 In construing the interpretation of
§ 3B1.1(a) under Avila to require a showing on both elements
of control over others and organizational authority, Ingham
misreads the plain language in Avila, which consistently states
the rule in the disjunctive. See, e.g., Avila, 95 F.3d at 890
(“The cases in which this court has upheld a four-level
upward adjustment . . . involved defendants who . . . exercised
some degree of control or organizational authority over oth-
ers.”) (emphasis added). See also United States v. Salcido-
Corrales, 249 F.3d 1151, 1154 (9th Cir. 2001) (stating rule in
the disjunctive) (citing United States v. Harper, 33 F.3d 1143,
1151 (9th Cir. 1994)).
  3
   To complete his argument, Ingham asserts that the district court erred
because there was no showing that he exercised “control” over the plan
where each co-conspirator was “an equal partner in the scheme, . . . and
the plans were agreed to by all.”
                   UNITED STATES v. INGHAM                1447
   [3] The facts of Ingham’s role in organizing the drug smug-
gling conspiracy can be distinguished from the defendant in
Avila who merely functioned as a “go-between” by negotiat-
ing for a fee the sale of a kilogram of cocaine between the
seller and an undercover officer posing as a buyer, and then
later delivering the cocaine to the buyer, along with two co-
conspirators. 95 F.3d at 888, 890. By contrast, Ingham’s role
reflected organizational authority over the conspiracy where
he devised and oversaw the entire importation scheme:
Ingham negotiated with the pilot to fly the marijuana to the
United States, and with Ritch to be the source for the mari-
juana; coordinated travel routes in the United States; selected
the airstrip at Kalso, British Columbia; directed the CS and
Samuelson to exchange a total of $13,000 for small denomi-
nations to facilitate smuggling; supplied expense money in
anticipation of the airborne dimension of the June 23, 2004
operation; and gave funds and instructions to Hall to transport
the forty-six kilograms of marijuana from Seattle to Califor-
nia. The amended PSR reinforces the finding that Ingham was
the organizer/leader by emphasizing that the co-conspirators
reported to Ingham whereas Ingham reported to no higher
authority. Unlike the defendant in Avila, Ingham’s role far
exceeded that of a go-between.

   [4] Our cases have consistently upheld a four-point
enhancement for those whose role, like Ingham’s, was that of
organizing or leading a drug distribution conspiracy. For
example, in United States v. Varela, we affirmed a four-point
enhancement where defendant located drug suppliers, negoti-
ated and transacted a series of drug deals, and delivered drugs
to undercover officer. 993 F.2d 686, 691 (9th Cir. 1993). Sim-
ilarly, in United States v. Roberts, we held that it was not
clear error to impose a four-point enhancement where defen-
dant negotiated sale of chemicals for production of metham-
phetamine with an undercover agent and gave an order to co-
conspirator to make delivery. 5 F.3d 365, 371 (9th Cir. 1993).
And again in United States v. Ponce, we upheld a four-point
enhancement where defendant oversaw procurement and dis-
1448                UNITED STATES v. INGHAM
tribution of large quantities of cocaine. 51 F.3d 820, 827 (9th
Cir. 1995). See also Salcido-Corrales, 249 F.3d at 1154-55
(upholding two-point organizer/leader enhancement in con-
spiracy involving fewer than five participants where defen-
dant “coordinated the distribution of drugs that he received
from out-of-state sources[,] . . . initiated drug deals with the
undercover officer[,] negotiated the terms of the deals and set
their locations and times”).

   [5] The district court complied with Rule 32(c)(1) without
explicitly addressing Ingham’s contention that he did not
exercise control over the co-conspirators. The district court
found expressly that the conspiracy was Ingham’s “brain-
child”; that it was extensive and involved five or more partici-
pants whom Ingham recruited; and that Ingham provided
funds and operational direction for the June 23, 2004 plans.
The record leaves no room for doubt that Ingham had organi-
zational authority warranting a four-point increase under
U.S.S.G. § 3B1.1(a). The district court rested these conclu-
sions on the undisputed factual basis of the conspiracy recited
in the PSR. The district court’s findings were based on evi-
dence sufficient to satisfy five of the seven criteria for a
§ 3B1.1(a) enhancement: (1) he “exercise[d] . . . decision
making authority,” (2) his conduct involved extensive “partic-
ipation in the commission of the offense,” (3) he engaged in
“the recruitment of accomplices,” (4) he thoroughly partici-
pated “in planning [and] organizing the offense,” and (5) “the
nature and scope of the illegal activity” was far-reaching. See
U.S.S.G. Manual § 3B1.1, cmt. n.4.

   [6] Under the disjunctive rule stated in Avila, a finding that
Ingham “exercised control over others” is superfluous where,
as here, the sentencing court properly concludes that the
defendant organized or led a conspiracy of the scope depicted
under U.S.S.G. § 3B1.1(a). Thus the district court correctly
resolved Ingham’s objections under Rule 32(c)(1) in light of
the material disputed issues. Once it was determined that
Ingham organized and led the conspiracy of five or more par-
                       UNITED STATES v. INGHAM                        1449
ticipants to import drugs from Canada, that was sufficient to
sustain a four-point increase of offense level irrespective of
whether Ingham controlled the day-to-day operations of those
he had recruited to implement his scheme.

                                    III

   [7] In reliance on Crawford v. Washington, 541 U.S. 36
(2004), Ingham contends that the use of hearsay statements by
the CS in preparing the PSR violates the Confrontation Clause
of the Sixth Amendment because Ingham did not have an
opportunity to cross examine the CS at the sentencing hearing.4
Ingham’s argument under Crawford is foreclosed by our
authority in United States v. Littlesun, 444 F.3d 1196 (9th Cir.
2006). In Littlesun, we held that “the law on hearsay at sen-
tencing is still what it was before Crawford: hearsay is admis-
sible at sentencing, so long as it is accompanied by some
minimal indicia of reliability.” 444 F.3d at 1200 (internal cita-
tion and quotation marks omitted); see also Williams v. New
York, 337 U.S. 241, 246-47 (1949).

   Ingham alternatively argues that the district court errone-
ously failed to consider the basis of the PSR, which consisted
of hearsay statements by the CS that allegedly lacked suffi-
cient indicia of reliability because the CS was biased and/or
motivated to lie. In lodging his due process challenge, Ingham
relies on United States v. Corral, 172 F.3d 714 (9th Cir.
1999), and United States v. Huckins, 53 F.3d 276 (9th Cir.
1995).

  We reject Ingham’s arguments relying on these precedents.
In Corral, the sentencing judge denied a minor role adjust-
  4
    “Alleged violations of the Confrontation Clause are reviewed de
novo.” United States v. Boone, 229 F.3d 1231, 1233 (9th Cir. 2000). “A
district court judge’s determination that a particular item of evidence is
sufficiently reliable is reviewed for abuse of discretion.” United States v.
Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998).
1450                    UNITED STATES v. INGHAM
ment, as recommended in the PSR, without stating whether
his denial was affected by the accomplice hearsay incorpo-
rated into the PSR that defendant was the “right hand man”
to the main conspirator. 172 F.3d at 715. We concluded in
that case that the district court “relied on unreliable hearsay”
because the government admitted the unreliability of the state-
ments and the facts indicated that defendant was not substan-
tially involved in the conspiracy. Id. at 716. In Huckins, the
defendant received a sentence enhancement as recommended
by the PSR where an accomplice stated that the defendant car-
ried a gun during a robbery, an account that was uncorrobo-
rated by a witness bank teller. 53 F.3d at 278. We held in that
case that this statement was unreliable hearsay because it was
unsupported by extrinsic evidence and “made in the context
of plea negotiations . . . [possibly] to curry favor with law
enforcement officials by implicating his accomplice.” Id. at
279.

   Denying that he was the conspiracy’s leader, Ingham dis-
puted two factual assertions in the PSR that were conceivably
connected to hearsay statements by the CS:5 He objected to
(1) “the insinuation . . . that he was instigating an attempt to
smuggle marijuana into the United States from Mexico (by
way of Iraq) on oceangoing vessels . . .” ; and (2) that “it was
the CI that approached [him] after not having worked together
for twenty years [, and that Ingham] had no plans to smuggle
marijuana . . . prior to being approached by the CI.”

   As to the first objection, any allegedly unreliable hearsay
is irrelevant because the district court stated that the maritime
plan involving Mexico and Iraq was only “background infor-
mation” that would not affect the sentence.6 Stated another
   5
     While the government characterizes the individual who assisted in the
investigation as a “confidential source,” Ingham describes the same person
as a “confidential informant” (“CI”).
   6
     In doing so, the district court satisfied Rule 32(i)(3)(B). “[In regard to
disputed facts, the district court must] determine that a ruling is unneces-
sary . . . because the matter will not affect sentencing or because the court
will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B).
                       UNITED STATES v. INGHAM                        1451
way, whatever were Ingham’s aims concerning a plan involv-
ing Mexico and Iraq, these did not affect his role as “organiz-
er” of the conspiracy to import drugs from Canada within the
meaning of § 3B1.1(a). As for the second objection, whether
Ingham first sought out the CS, or whether the CS first
approached Ingham, is also irrelevant to the assessment of
Ingham’s role in the drug importation conspiracy and does not
bear on the reliability of the PSR’s remaining factual predi-
cate for the conspiracy.

   [8] As discussed above, there is ample evidence in the
uncontroverted facts that Ingham pursued the plans to smug-
gle drugs from Canada, whatever his motivations; enlisted the
co-conspirators and directed their roles; selected air and land
transportation routes from British Columbia to distribution
points in the United States; and provided funding and opera-
tional support for the scheme. Even if the CS had first sug-
gested the idea, as Ingham alleges, Ingham was nevertheless
the leader with “organizational authority” from the conspira-
cy’s inception. See Avila, 95 F.3d at 890. The organizer/leader
role determination under § 3B1.1(a) does not hinge on the
issue of which co conspirator first conceives of the idea to
commit the offense. Cf. U.S.S.G. Manual § 3B1.1, cmt. n.4
(stating that the four-point “adjustment does not apply to a
defendant who merely suggests committing the offense”)
(emphasis added). Whether or not the CS first approached
Ingham is immaterial to the factual findings in support of the
four-point enhancement.7 Accordingly, the district court did
not abuse its discretion in relying on the PSR despite possible
  7
    By contrast, in United States v. Ortiz, 993 F.2d 204 (9th Cir. 1993), we
reversed the district court when it relied on unreliable hearsay from a con-
fidential informant to establish a material point for sentencing purposes,
i.e. that the defendant sold 163 kilograms of marijuana over an 18-month
period. Id. at 206-07. There the government could corroborate the infor-
mant’s hearsay with only one intercepted telephone conversation indicat-
ing that the defendant had purchased approximately one kilogram of
marijuana in a single transaction. We held in that case that the district
court clearly erred in relying on the informant’s unreliable hearsay. Id. at
208. In sharp contrast to Ortiz, where the challenged hearsay was improp-
erly used to support the findings on the pivotal issue of the quantity of
marijuana sold, here the allegedly unreliable hearsay statements concern
only the peripheral and immaterial issue of whether the CS first prompted
the smuggling scheme that Ingham ultimately organized.
1452                UNITED STATES v. INGHAM
inclusion of hearsay statements by the CS.

                               IV

   Ingham argues under Booker, 543 U.S. 220; Blakely, 542
U.S. 296; and Apprendi, 530 U.S. 466, that facts supporting
the aggravating organizer/leader role should have been sub-
mitted to a jury and found beyond a reasonable doubt.

   [9] Ingham’s argument is foreclosed by our precedents: “In
the aftermath of Booker, we have noted that . . . the prepon-
derance of the evidence standard will still generally satisfy
due process concerns . . . . [B]ut, where an extremely dispro-
portionate sentence results from the application of an
enhancement, the government may have to satisfy a clear and
convincing standard.” United States v. Staten, 450 F.3d 384,
392-93 (9th Cir. 2006) (internal quotation marks omitted) (cit-
ing United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005)
(stating same rule in context of mandatory minimums)); see
also United States v. Lyons, 453 F.3d 1222, 1236 (9th Cir.
2006) (rejecting theory that facts in support of sentence
enhancement are subject to reasonable doubt standard).

   [10] The district court did not announce the standard of
proof under which it determined the facts in support of the
§ 3B1.1(a) enhancement, and Ingham does not argue here that
his is the exceptional case that requires the clear and convinc-
ing evidence standard. We need not decide here whether an
“extremely disproportionate sentence” resulted from the
application of § 3B1.1(a) that added twenty-two months over
the 78-month maximum advisory guideline sentence calcu-
lated according to U.S.S.G. § 3B1.1(c). We conclude that
there was no clear error in any event because the conceded
fact that Ingham organized the conspiracy is sufficient to find
the sentence-enhancing facts under either standard of proof.

                               V

   Ingham asserts that the district court’s use of the Guidelines
as advisory was an unconstitutional retroactive application of
                       UNITED STATES v. INGHAM                        1453
Booker under the Fifth Amendment’s Ex Post Facto and Due
Process Clauses.

   [11] Again, Ingham’s argument runs into a stone wall of
our prior precedent, in which we have stated the following
rule: “The Ex Post Facto Clause . . . by its terms, applies only
to changes in the law resulting from legislative or executive
action, but the Court has extended similar principles to the
Due Process Clause to cover ‘unforeseeable [judicial] con-
struction of a criminal statute.’ ” United States v. Dupas, 419
F.3d 916, 921 n.3 (2005) (quoting Bouie v. City of Columbia,
378 U.S. 354-55 (1964)).8 “[I]n Booker, the Supreme Court
expressly stated that both holdings should be applied to cases
on direct review.” Dupas, 419 F.3d at 920 (internal citations
and quotation marks omitted); see also United States v.
Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc) (holding
opportunity to cure Sixth Amendment defect under Booker by
remand for re-sentencing under advisory Guidelines necessar-
ily implies permissible retroactive application of Booker
remedial opinion). Dupas also re-affirmed that the ex post
facto bar under Bouie “applied only to after-the-fact increases
in the scope of criminal liability and not to retroactive sen-
tence enhancements.” 419 F.3d at 921 (citing United States v.
   8
     In Dupas, we considered a defendant’s argument under the Fifth
Amendment’s Due Process Clause that Booker should not apply retroac-
tively. Dupas, 419 F.3d at 918. In resolving the case against the Dupas
defendant, we also concluded that a retroactive application of the Booker
remedial opinion comported with ex post facto principles. See id. at 919-
21. Ingham attempts to sidestep the effect of Dupas by arguing that its dis-
cussion of ex post facto principles was dicta and thus not controlling. We
believe that the careful three-page treatment of the subject in Dupas was
not a dictum, i.e. it was not “made casually and without analysis, . . .
uttered in passing without due consideration of the alternatives, or . . .
[done as] a prelude to another legal issue that commands the panel’s full
attention.” See United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001)
(Kozinski, J.); see also Staten, 450 F.3d at 392-93 (adopting Dupas analy-
sis to reject identical due process argument reviewed as “traditional ex
post facto argument”). Whether or not Dupas is dictum on this point, we
follow the persuasive reasoning of Dupas in rejecting Ingham’s claim.
1454                    UNITED STATES v. INGHAM
Newman, 203 F.3d 700, 703 (9th Cir. 2000)); see also Web-
ster v. Woodford, 369 F.3d 1062, 1069 (9th Cir. 2004) (noting
that “Bouie does not apply to sentencing schemes”).

   [12] When Booker rendered the Guidelines advisory,
Ingham had yet to be sentenced, i.e. his case had not pro-
ceeded through direct review. Thus Booker, under its express
terms, applies.9

   AFFIRMED.




  9
     We also reject Ingham’s due process challenge, which is similarly fore-
closed by Dupas. Dupas underscored that fair warning was “the touch-
stone of retroactivity analysis under the Due Process Clause.” 419 F.3d at
921 (relying on Rogers v. Tennessee, 532 U.S. 451, 458 (2001) (“[Bouie’s]
rationale rested on core due process concepts of notice, foreseeability, and
. . . the right to fair warning as those concepts bear on the constitutionality
of attaching criminal penalties to what previously had been innocent con-
duct.”)). Ingham did not suffer a due process violation here, despite a post-
conviction application of Booker, because when he committed the crime,
entered his plea agreement and was sentenced, the statutory maximum
sentence was 120 months under 21 U.S.C. § 841(b)(1)(D). Ingham thus at
all times had notice and fair warning.
