In United States v. Katzopoulos, the Sixth Circuit affirmed the district court's imposition of sentence. The most important holding is that the confrontation clause does not apply at sentencing. The Court also found that district court's alternative sentence not violative of Booker under its previous holding in Christopher.
In Katzopoulos, the defendant argued that pursuant to the Supreme Court’s 2004 ruling in Crawford v. Washington, the district court’s admission of a postal inspector’s hearsay evidence at the sentencing hearing, which helped establish the sentencing enhancements, as a violation of his Sixth Amendment right to confrontation. 541 U.S. 36 (2004).
In denying defendant's claim, the Sixth Circuit indicated that the issue was still somewhat in the air in that it has not been specifically addressed by the Supreme Court. I suppose we all need to object at sentencings to preserve the issue and then continue to appeal the issue until the Supremes finally make an affirmative ruling on this issue.
The following is a quote from the opininon that may come in handy when arguing against the use of the testimonial hearsay not subject to prior cross examination:
"Courts have questioned the continuing validity of allowing testimonial hearsay at sentencing post-Crawford and post-Booker. The Eleventh Circuit noted, "[w]hile [the Crawford rule] may eventually be extended to the sentencing context, that has not happened yet." Chau, 426 F.3d at 1323. In ruling that Crawford did not apply at the sentencing in the particular case, a West Virginia District Court stated, "[f]or hotly contested issues, however, the truth-seeking function of the Confrontation Clause deserves attention at sentencing." United States v. Gray, 362 F.Supp.2d 714, 725 (2005). This Court has recently stated that "[i]t is an open question in this circuit whether our rule that ‘confrontation rights do not apply in sentencing hearings. . . ’ applies after Crawford." Ston, 432 F.3d at 654 (quoting Silverman, 976 F.2d at 1510). Though the cases may be a broad signal of the future, there is nothing specific in Blakely, Booker or Crawford that would cause this Court to reverse its long-settled rule of law that Confrontation Clause permits the admission of testimonial hearsay evidence at sentencing proceedings.
Bottom line is expect to lose at the district court, expect to lose at the Sixth Circuit, file for writ and hopefully by the time that the Supreme Court finally decides the issue your case is still ongoing. If you fail to do this, your client may be out of luck if there is no retroactive application.
[Thank you to attorney Ned Germany of the Memphis Federal Public Defender's Office for this post]