United States of America v. Shawn Robinson

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5330
UNITED STATES OF AMERICA
v.
SHAWN ROBINSON,
Appellant.
___________________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 04-cr-00421
District Judge: Hon. Jerome B. Simandle
____________________
Submitted under Third Circuit LAR 34.1(a)
February 27, 2007

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Before: McKEE and ALDISERT, Circuit Judges, and
RESTANI,* Judge
(Filed: March 5, 2007)
Christopher J. Christie, Esquire
United States Attorney
George S. Leone, Esquire
Chief, Appeals Division
Caroline A. Sadlowski, Esqire
Assistant United States Attorney
970 Broad Street
Newark, New Jersey 07102
Counsel for Appellee
John F. Renner, Esquire
Pavilions at Greentree, Suite 401
12000 Lincoln Drive
Marlton, New Jersey 08053
Counsel for Appellant
_________________
* The Honorable Jane A. Restani, Chief Judge, U.S. Court of
International Trade, sitting by designation.

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OPINION
ALDISERT, Circuit Judge.
On May 4, 2005, Shawn Robinson pleaded guilty to 10
counts of cocaine possession with the intent to distribute. See
21 U.S.C. § 841(a)(1), (b)(1)(C). The District Court for the
District of New Jersey sentenced Robinson to 150 months’
imprisonment and three years’ supervised release. Robinson
now appeals his punishment. He contends that the use of
hearsay evidence at his sentencing hearing violated his Sixth
Amendment right to confront his accusers. We conclude that
Appellant’s argument lacks merit and, accordingly, we will
affirm the judgment of the District Court.
I.
During a 10-month police investigation in Penns
Grove, New Jersey, Robinson sold undercover informants
approximately 167 grams of cocaine and 62 grams of crack
cocaine. Robinson was subsequently arrested and charged
with a twelve-count indictment. In May of 2005, he signed a
plea agreement; the government dropped two charges of crack
cocaine possession and Robinson pleaded guilty to 10 counts
of cocaine possession with intent to distribute.

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At the sentencing hearing, to the surprise of the
prosecutor, Robinson claimed that he was set up by the
government. He insisted that he only sold drugs to the
undercover informant, and only as a result of the informant’s
prodding. To rebut this contention, Sergeant Brian Facemyer
of the Salem County Narcotics Task Force presented hearsay
testimony that Robinson sold drugs to at least seven different
buyers. Facemyer explained that seven of Robinson’s regular
customers provided taped, sworn statements admitting they
had purchased cocaine from Robinson. Based on their
admissions, six of the buyers then pleaded guilty to drug-
related offenses.
Concerned about his credibility, Robinson challenged
the introduction of Facemyer’s hearsay testimony. Appellant
argued that under the Sixth Amendment’s Confrontation
Clause he had the right to cross-examine the seven individuals
who accused him of dealing cocaine. The Confrontation
Clause guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. To support
his position, Robinson cited Crawford v. Washington, 541
U.S. 36 (2004), a Supreme Court case that examines the Sixth
Amendment right to confront accusers at trial. The District
Court rejected Appellant’s argument and considered
Facemyer’s testimony in fashioning Robinson’s sentence.
Robinson now appeals.

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II.
This case asks us to decide if the Sixth Amendment’s
Confrontation Clause prevents the government from
introducing hearsay evidence during sentencing hearings. Put
another way: do criminal defendants have the right to cross-
examine out-of-court witnesses during the sentencing phase?
The law on this issue is well settled. Both the Supreme Court
and this Court of Appeals have determined that the
Confrontation Clause does not apply in the sentencing context
and does not prevent the introduction of hearsay testimony at
a sentencing hearing. See Williams v. Oklahoma, 358 U.S.
576, 584 (1959); United States v. Kikumura, 918 F.2d 1084,
1099-1100 (3d Cir. 1990) (holding that the Confrontation
Clause only applies at trial, not sentencing).
Robinson makes a valiant attempt to outflank the clear
precedent of this Court. He argues that the Supreme Court’s
recent decision in Crawford v. Washington mandates that we
reevaluate how the Sixth Amendment applies to sentencing.
We disagree. In Crawford, the Supreme Court held that in a
criminal trial the Confrontation Clause prohibits
consideration of out-of-court testimonial statements, unless
the witness is unavailable and the defendant has had a
previous opportunity to conduct cross-examination. See 541
U.S. at 68. Crawford, however, never applies its rule to
sentencing; nowhere does the decision refer to sentencing
hearings. Crawford, therefore, provides no platform to
reverse prior Supreme Court decisions that expressly allow
the introduction of hearsay evidence in the sentencing

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We also note that none of our sister Courts of Appeals have1
interpreted Crawford to apply to sentencing hearings. See
United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005);
United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005);
United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005);
United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005).
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context.1
Prosecutors, of course, may not introduce any and all
hearsay testimony at a sentencing proceeding. The admission
of hearsay statements in the sentencing context is subject to
the requirements of the Due Process Clause. Under the
precedent of this Court, hearsay statements must have some
“minimal indicium of reliability beyond mere allegation.”
Kikumura, 918 F.2d at 1102 (citations omitted); see also
U.S.S.G. § 6A1.3(a) (courts may consider any evidence at
sentencing “provided that the information has sufficient
indicia of reliability to support its probable accuracy”). The
evidence offered by the Government through the testimony of
Sergeant Facemyer easily passes this test. The District Court
noted that Facemyer’s testimony was supported by audiotapes
of Robinson talking with his buyers and taped sworn
statements of those buyers admitting they purchased cocaine
from Robinson on multiple occasions. Considering the
footprint left by this evidence, the District Court’s decision to
allow the hearsay testimony was warranted. Accordingly, we
affirm the sentence imposed by the District Court.

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* * * * * *
For the reasons detailed above, we will affirm the
judgment of the District Court.

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