In U.S. v. Underwood, No. 04-15750 (Apr. 25, 2006), the Court, on plain error review, rejected the argument that 21 U.S.C. § 841 is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court also rejected a plain error Booker challenge to the sentence. The Court also held that the admission of co-conspirator statements does not violate Crawford’s Confrontation Clause holding.
Underwood argued that Booker error existed based on the fact that the district court applied then-mandatory guidelines, and imposed a sentence at the low-end of the sentence. The Court found that this did not satisfy Underwood’s burden of showing that the sentence would have been lower under an advisory guidelines system.
The defendant argued that § 841 did not conform with Apprendi because it contained sentencing factors, which direct judges to make fact-findings. The Court rejected this argument, noting that an Apprendi issue only arises if a judge makes findings which cause a sentence to go above the applicable statutory maximum. Here, Underwood’s 135 month sentence was well below the statutory maximum of life.
At trial, the district court admitted, over Crawford objections, recorded statements which Underwood’s brother made during the unlawful drug transactions. The Court found that these statements were made by a co-conspirator, and therefore admissible under FRE 801(d)(2)(E). The Court rejected Underwood’s Crawford-based Confrontation Clause objection, finding that these statements were not "testimonial." The Court noted that Confrontation Clause rights protect only "testimonial" statements, i.e., the equivalent of pretrial statements that the declarant would reasonably expect to be used prosecutorially. Here, the incriminating statements caught on tape were not made to police with a view to prosecution; indeed, Underwood’s brother would likely not have said anything had he known he was dealing with a police informant, and that his statements were being recorded.
