United States v. Salas
UNITED STATES of America, Plaintiff-Appellee, v. Michael SALAS, Defendant-Appellant
Opinion
PER CURIAM:
* Michael Salas appeals the sentence imposed after he pleaded guilty to one count of possession of an unregistered firearm. He contends that his sentencing under the advisory guideline system announced in United States v. Booker 1
violates due process and ex post facto principles. Salas recognizes that the contention is foreclosed.
2
Also for purposes of further review, Salas preserves his argument that, in light of Booker, the sentencing court should have found beyond a reasonable doubt the facts used to calculate the sentence. We, however, have previously stated that, post-Booker, “[t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guideline sentence.”
3
Again recognizing precedent to the contrary, Salas contends that the sentencing court impermissibly relied on the challenged facts recited in the presentence report (PSR), even though Salas did not attempt to demonstrate the material unre *284 liability of the facts he disputed. He urges that the government be put to its proof by a preponderance of the evidence. Post- Booker, the defendant retains the burden to show “that the information in the PSR relied on by the district court is materially untrue”
4
and that, absent such evidence, the district court may rely on the facts recited in the PSR.
5
Lastly, relying primarily on Crawford v. Washington, 6
Salas contends that the district court denied him the right to confront witnesses at the sentencing hearing, repugnant both to the Sixth Amendment and to due process. However, we have previously recognized that “there is no Confrontation Clause right at sentencing.”
7
AFFIRMED.
* Pursuant to the 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
. 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).
2
.
United States v. Austin, 432 F.3d 598 (5th Cir.2005) (per curiam);
United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir.2005).
3
.
United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005);
United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.2006).
4
.
United States v. Betancourt, 422 F.3d 240, 248 (5th Cir.2005).
5
.
United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir.2005).
6
. 541 U.S. 36, 68-69 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).
7
.
United States v. Navarro, 169 F.3d 228, 236 (5th Cir.1999) (citing Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.1996));
United States v. Leatch, 111 Fed.Appx. 770 (5th Cir.2004) (recognizing that Navarro controls).
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 4 cases
View all citing references →Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.