See United States v. Maldonado , 215 F. App'x 938, 941 (11th Cir. 2007) (unpublished) ("[I]f the district court found that Maldonado has used force against the victim, it was required to apply the higher base offense level contained in § 2A3.4(a)(1), defined by reference to section 2241."); United States v. Anderson , 494 F. App'x 658, 660 (7th Cir. 2012) (unpublished) ("[T]he [district] court could conclude that the victim's fear helped the defendant commit the offense," so "the application of a base offense level of sixteen [was] not clear error."). The government cites United States v. Sharpfish , 408 F.3d 507 (8th Cir. 2005), as an additional example of a case that applied § 2A3.4(a)(1) in a sentencing for forcible sexual contact. But the Sharpfish defendant pleaded guilty to a charge of aggravated sexual abuse (proscribed by § 2241 ), not abusive sexual contact (proscribed by § 2244 ).
Because Irvin did not object to the detective's testimony, we review his claim for plain error. See United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005); United States v. Pirani, 406 F.3d 543, 550 (8th Cir.) (en banc) (plain error standard of review), cert. denied, ___ U.S. ___, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005). The Federal Rules of Evidence, with the exception of the privilege rules, do not apply to sentencing proceedings.
If a defendant fails to object to the admission of hearsay evidence, we review using the more deferential standard, plain error. See United States v. Woods, 183 F. App'x 592, 594 (8th Cir. 2006) (per curiam) (citing United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005)). Angeles-Moctezuma specifically objected to SA Wilmsmeyer's testimony about Collins's statements to law enforcement and later made a continuing objection to SA Wilmsmeyer's testimony about Angeles-Moctezuma's own incriminating statements.
“In other words, relevant hearsay testimony may be considered if sufficiently reliable reasons demonstrate the testimony is probably accurate.” United States v. Woods, 596 F.3d 445, 448 (8th Cir.2010) (citing United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir.2005)). “The determination of whether hearsay evidence is sufficiently reliable to support a sentencing decision depends on the facts of the particular case, and is committed to the sound discretion of the district court.” Id. (quoting United States v. Cassidy, 6 F.3d 554, 557 (8th Cir.1993)).
In other words, relevant hearsay testimony may be considered if sufficiently reliable reasons demonstrate the testimony is probably accurate. See United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005). "The determination of whether hearsay evidence is sufficiently reliable to support a sentencing decision depends on the facts of the particular case, and is committed to the sound discretion of the district court."
Because Wazwaz did not object at sentencing to the district court's consideration of evidence from the coconspirators' trial, we review the issue for plain error. See United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005). We find no error in the court's reliance on the evidence, as the sentencing judge presided over the coconspirators' trial, and — contrary to his assertions on appeal — Wazwaz had ample notice of the proposed use of the evidence to support a consecutive sentence, and he had an opportunity at sentencing to rebut the evidence and to address the court personally.
This court reviews for plain error an admission of evidence to which the defendant did not object below. United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005). This court is not "bound by the grounds on which the district court admitted the evidence" because it "may affirm a district court's judgment on any basis supported by the record."
See, e.g., United States v. Fadl, 498 F.3d 862, 867 (8th Cir. 2007) (rejecting a double-counting argument in a case involving no reference to a prior offense and holding that "[t]he application of § 2G2.1(d)(1) punished Fadl for exploiting different minors, while the § 4B1.5(b) enhancement punished him for exploiting those minors on multiple occasions") (quotation omitted and emphasis added); United States v. Peck, 496 F.3d 885, 890 (8th Cir. 2007) ("A `pattern of activity' for the purposes of § 4B1.5(b)(1) occurs when the defendant engages in the prohibited sexual conduct with a minor on at least two separate occasions. U.S.S.G. § 4B1.5, cmt. n. 4(B)(1)."); United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005) (holding Section 4B1.5(b) applicable where "[t]he district court recited evidence that Sharpfish had sexually abused [the victim] often and repeatedly, as well as evidence that Sharpfish sexually abused [another victim] with his foot."). In Fadl, Peck, and Sharpfish, we affirmed the application of subsection (b) without reference to prior convictions, and in Fadl, we made explicit reference to the fact that Section 4B 1.5(b) was triggered by the exploitation involved in the offense conduct.
Because Rodriguez did not raise a Confrontation Clause objection to this testimony at trial, we review his claim for plain error. See, e.g., United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir.2005); United States v. Pirani, 406 F.3d 543, 550 (8th Cir.) (en banc), cert. denied, ___ U.S. ___, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005) (setting forth plain error standard of review). In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held the Confrontation Clause bars the "admission of testimonial statements! of a witness who did not appear at trial unless he was un-available to testify, and the defendant had a prior opportunity for cross-examination."
During the co-conspirator's trial, Lawrence testified Gomez-Coronado was her supplier, had recruited her to distribute methamphetamine for him, and had "fronted" methamphetamine to her. Gomez-Coronado challenges the district court's reliance on Lawrence's testimony as a basis for the three-level enhancement, arguing Gomez-Coronado was denied due process by his inability to confront or cross-examine Lawrence. Because Gomez-Coronado did not object at sentencing to the district court's consideration of Lawrence's testimony, we review Gomez-Coronado's claim for plain error.See United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005). "[B]efore an appellate court can correct an error not raised at trial, there must be (1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.'"