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Recent U.S. Supreme Court decisions on a defendant’s right to confront witnesses at trial and to have a jury find facts critical to longer sentences do not bar a judge from considering hearsay testimony at sentencing, a federal appeals court has ruled. Upholding the use of several out-of-court statements given to police by witnesses, the 2nd U.S. Circuit Court of Appeals said the Supreme Court’s confrontation clause decision in Crawford v. Washington and its ruling invalidating part of the U.S. Sentencing Guidelines in U.S. v. Booker have not altered the discretion of judges to use hearsay at sentencing. In U.S. v. Martinez, 04-2075-cr, David Martinez was indicted for a shooting incident and then pleaded guilty to unlawful possession of a firearm after having been convicted of a felony. He requested a hearing pursuant to U.S. v. Fatico, 579 F.2d 707 (2d Cir., 1978), to resolve factual issues needed to determine whether proposed enhancements to his sentence were appropriate. At that hearing, Southern District of New York Judge Loretta Preska entertained testimony from James Slattery, a detective with the New York Police Department who related the statements of several witnesses to the incident. Preska went on to sentence Martinez to serve 10 years and three months in prison. 2nd Circuit Judges Sonia Sotomayor, Reena Raggi and Peter Hall decided the appeal, with Sotomayor writing the opinion for the panel. Martinez first said Crawford, 541 U.S. 36, requires the circuit to rethink hearsay testimony in sentencing, even though the 2004 case dealt with hearsay at trial. In Crawford, the Supreme Court held that the Confrontation Clause requires “a per se bar on the admission of out-of-court testimonial statements made by unavailable declarants where there was no prior opportunity for cross-examination.” And another reason for barring hearsay at sentencing, Martinez argued, was Booker, 125 S.Ct. 738 (2005), where the Supreme Court made the U.S. Sentencing Guidelines “advisory” by holding unconstitutional a provision that required judges, upon their own factual findings, to enhance sentences beyond the maximum authorized by the facts admitted to by the defendant during a guilty plea or found by a jury beyond a reasonable doubt.” The circuit disagreed. “Neither Crawford nor Booker, however, addressed the applicability of the right to confrontation to the sentencing context or the admissibility of hearsay testimony at sentencing proceedings,” Sotomayor said. “These cases therefore provide no basis to question prior Supreme Court decisions that expressly approved the consideration of out-of-court statements at sentencing.” Moreover, the judge said, neither Crawford nor Booker did anything to “undermine the rationale of Second Circuit precedent” allowing the use of hearsay in the sentencing context. ‘PERTINENT’ INFORMATION Supreme Court case law on the issue prior to Crawford and Booker holds that the kind of information a judge may consider at sentencing, or the source from which it may come, are “largely unlimited.” And in interpreting the case law, the 2nd Circuit has emphasized that judges should not be denied access to all “pertinent” information in deciding the appropriate sentence for a defendant, nor should they be required to rigidly adhere to “restrictive rules of evidence properly applicable at trial.” Because consideration of hearsay at sentencing proceedings was not barred under a “mandatory” sentencing scheme, Sotomayor said that “there is no logical basis for concluding that it is prohibited under the system of advisory Guidelines established by Booker.” She cautioned that the court was not saying that “any and all” hearsay is permissible when sentencing a defendant. Even though the evidentiary standards for a trial do not apply to the sentencing context, she said, the Due Process Clause still applies and “some minimal indicia of reliability” must still be present in order for hearsay statements to be considered. Martinez will still get another chance to argue for resentencing, as the circuit found he was correct in arguing that the mandatory enhancements applied by Preska violated the rule announced in Booker. Should Martinez persuade Preska as a threshold matter that she would have given him a different sentence had Booker been in place at the time, she will then be allowed to grant him a full rehearing. Donna R. Newman represented Martinez. Assistant U.S. Attorneys Benjamin M. Lawsky and Karl Metzner represented the government.

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