US v. Luciano, No. 04-1024. The petitioner loses an Antonakopoulos argument because he doesn’t show them that he would have done better had the Supremes had come down with Booker at the time. The petitioner also loses an unpreserved Crawford argument regarding testimony at the sentencing hearing of: 1) the testimony of Officer Thornton describing a witnesses’ assertions, 2) a detective's report of a witnesses’ statement at the police station and (3) a witnesses’ grand jury testimony. The court holds that not only does Crawford not apply to sentencing hearings, but Booker doesn’t demand it or rather:
Thus, nothing in Blakely or Booker necessitates a change in the majority view that there is no Sixth Amendment right to confront witnesses during the sentencing phase. See United States v. Martínez, --- F.3d ---, No. 04-2075, 2005 WL 1492079, at *4 (2d Cir. Jun 24, 2005)
But then the court holds in the alternative that the statements at issue wouldn’t have been testimony anyway, because they were excited utterances under Fed. R. Evid. 803(2).