United States v. Taras Wallace

408 F.3d 1046, 2005 U.S. App. LEXIS 9330, 2005 WL 1200892
Court of Appeals for the Eighth Circuit·Decided May 23, 2005·No. 04-1265·Published·Cited by 29 cases

Opinions

PER CURIAM.

The government charged Taras Wallace with being a convicted felon in possession of a firearm. Wallace pled guilty pursuant to a plea agreement. Wallace objected to the presentence investigation report’s recommendation of a four-level increase for using or possessing a firearm in connection with another felony offense. At sentencing, the district court1 overruled Wallace’s objections regarding the government’s use of out-of-court statements made by Antion-ette Jordan, finding the statements reliable. The district court applied the four-level increase and sentenced Wallace to 110 months imprisonment. Wallace appeals and argues the district court erred in using hearsay evidence in accessing an upward adjustment, violated his right of confrontation in using the hearsay evidence to enhance his offense level, and committed plain error in sentencing him in violation of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm.

I. Background

The government charged Wallace with being a convicted felon in possession of a firearm. Wallace pled guilty pursuant to a plea agreement. The presentence investigation report recommended a four-level increase because Wallace possessed or used the firearm in connection with another felony offense. Wallace objected to the presentence investigation report’s recommendation of the four-level increase.

At sentencing, Officer Michael Stewart testified that Antionette Jordan told him that Wallace choked her and struck her in the back of the head , with .a firearm. The government presented a copy of Jordan’s written statement that she prepared in the presence of Detective James Lisziewski of the Domestic Abuse Response Team! Jordan’s 'written statement noted that Wallace hit her in the back of the head with a gun. The. government also played Jordan’s 911 call for the district court. Jordan did not attend sentencing.

The district court overruled Wallace’s objections and found the out-of-court statements Jordan made were reliable and Wallace used or possessed the firearm in connection with a felony assault. The district court added the four-level increase finding Wallace used or possessed a firearm in connection with a felony offense. The district court granted Wallace a three-level reduction for acceptance of responsibility. The district court then sentenced Wallace to a 110-month term of imprisonment. Wallace appeals.

II. Discussion

Wallace argues the district court erred in using hearsay evidence in sentencing him and accessing the four-level increase. As a “general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he [1048]*1048may consider, or the source from which it may come.” Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (quotations omitted). The commentary in the Sentencing Guidelines expressly allows reliable hearsay evidence at sentencing, and courts have concluded hearsay is admissible in sentencing as long as it bears some indicia of reliability. United States v. Shevi, 345 F.3d 675, 679 (8th Cir.2003) (reliable hearsay evidence may be considered at sentencing), cert. denied, 540 U.S. 1166, 124 S.Ct. 1182, 157 L.Ed.2d 1214 (2004).

Here, the district court heard the following hearsay evidence at sentencing: Jordan’s 911 call, Jordan’s victim statement form, and Jordan’s sworn grand jury testimony. In all of these statements Jordan asserted Wallace had hit her in the head with a firearm. In addition to the above evidence, the government presented Officer Stewart’s testimony (regarding Jordan’s statement that Wallace hit her on the head with a firearm) and a photograph of Jordan showing marks around her neck. We affirm, because all of this evidence has an indicia of reliability. See United States v. Williams, 10 F.3d 910, 914 (1st Cir.1993) (grand jury testimony is often considered reliable hearsay evidence in light of the fact that it is testimony given under oath, under penalty of perjury); United States v. Corbin, 998 F.2d 1377, 1386-87 (7th Cir.1993) (stating the statements are made more reliable when a person who testified had the opportunity to personally observe the witness who made the out-of-court statement); United States v. Farnsworth, 92 F.3d 1001, 1010 (10th Cir.) (holding, a declarant’s out-of-court statements bear an indicia of reliability when a police officer interviewed the declarant immediately after the altercation and the officer had the opportunity to form an opinion as to the veracity of the statements), cert. denied, 519 U.S. 1034, 117 S.Ct. 596, 136 L.Ed.2d 524 (1996).

Wallace next argues the district court violated his right of confrontation by using out-of-court statements to enhance his offense level. This court has determined that the confrontation clause does not apply in sentencing proceedings. See United States v. Due, 205 F.3d 1030, 1033 (8th Cir.2000). As long as the out-of-court information relative to the circumstances of the crime bears an indicia of reliability, then the sentencing court can consider it without providing the defendant with a right to confrontation. United States v. Atkins, 250 F.3d 1203, 1212-13 (8th Cir.2001) (noting that the sentencing court has wide discretion as to the kind of information considered or its source). As noted above, the information the district court relied on has an indicia of reliability. No error is shown on this issue.

Finally, Wallace argues the district court violated Booker in enhancing his offense level by finding he used or possessed the firearm in connection with a felony assault. Wallace objected to the facts underlying the Booker issue (that the district court relied on unreliable, hearsay evidence in finding he used a weapon in the commission of another offense). Wallace’s objection did not preserve the Booker error, because he did not couple his objection with a specific reference to Apprendi Blakely, or the Sixth Amendment; therefore, our review of Wallace’s Booker issue is for plain error. See United States v. Pirani 406 F.3d 543, 550 (8th Cir.2005) (noting that a defendant must couple an objection with a specific reference to Apprendi Blakely, or the Sixth Amendment in order to preserve the Booker error).

To meet the plain error test, Wallace must show (1) error, (2) that is plain, (3) that affects substantial rights. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If all three conditions are met, we may exercise [1049]

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Taras Wallace, 408 F.3d 1046, 2005 U.S. App. LEXIS 9330, 2005 WL 1200892 (8th Cir. 2005).

408 F.3d 1046 (United States v. Taras Wallace) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Booker McKinney
139 F.4th 690 (Eighth Circuit, 2025)
United States v. Austin Nichols
76 F.4th 1046 (Eighth Circuit, 2023)
United States v. Wesley Coonce, Jr.
932 F.3d 623 (Eighth Circuit, 2019)
United States v. Donavan Cross
888 F.3d 985 (Eighth Circuit, 2018)
United States v. Roger Chambers
878 F.3d 616 (Eighth Circuit, 2017)
United States v. William Sheridan
859 F.3d 579 (Eighth Circuit, 2017)
United States v. Dennis DeStefano
552 F. App'x 594 (Eighth Circuit, 2014)
State v. Sasha Dee Martinez
303 P.3d 627 (Idaho Court of Appeals, 2013)
United States v. Arthur Neal
409 F. App'x 43 (Eighth Circuit, 2011)
United States v. Gerardo Salinas
405 F. App'x 78 (Eighth Circuit, 2010)
State v. Johnson
284 S.W.3d 561 (Supreme Court of Missouri, 2009)
United States v. Boyce
564 F.3d 911 (Eighth Circuit, 2009)
United States v. Barry Boyce
Eighth Circuit, 2009
United States v. Aldridge
561 F.3d 759 (Eighth Circuit, 2009)
United States v. Beiermann
584 F. Supp. 2d 1167 (N.D. Iowa, 2008)
People v. Mingo
49 A.D.3d 148 (Appellate Division of the Supreme Court of New York, 2008)
Coen v. Coen
509 F.3d 900 (Eighth Circuit, 2007)
United States v. Johnson
495 F.3d 951 (Eighth Circuit, 2007)