[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                      ________________________         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            November 28, 2007
                             No. 06-15123
                                                          THOMAS K. KAHN
                       ________________________                 CLERK

                 D. C. Docket No. 05-00264-CR-T-27EAJ

UNITED STATES OF AMERICA,


                                                 Plaintiff-Appellee,


                                  versus


MARIO CASTILLO,


                                                Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                           (November 28, 2007)

Before BLACK, HULL and FAY, Circuit Judges.

PER CURIAM:
      Mario Castillo appeals his 33-month sentence, imposed after he pled guilty

to conspiracy to transport and persuade individuals to travel for the purpose of

prostitution, in violation of 18 U.S.C. § 371. He raises three issues on appeal.

First, he contends the district court erred in enhancing his sentence based on facts

not found by a jury. Second, Castillo claims the district court erred in considering

hearsay testimony in deciding to enhance his sentence. Finally, he asserts the

district court erred in enhancing his sentence under U.S.S.G. § 2G1.1(d)(1) based

on the number of victims in the conspiracy and § 3B1.1 based on Castillo’s being

a manager or supervisor in the criminal activity.

      There is no dispute as to the basic facts of the case. Castillo was involved in

a conspiracy which operated a number of prostitution houses in the Tampa,

Orlando, and Polk County areas. Castillo’s brother, Jose Rodriguez, managed at

least two of the houses. For a period of time, Castillo lived in one of the houses,

received money from patrons, distributed tokens which the patrons would then

give to the prostitutes, and collected money from the prostitutes at the end of the

day. Castillo also purchased supplies and transported prostitutes between the

brothels.

      Based on these facts, we conclude the district court did not err, as there was

sufficient evidence in the record to support the sentencing enhancements. In

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addition, enhancements based on judicial fact-finding in an advisory system are

not unconstitutional. See United States v. Pope, 

, 1335 (11th Cir.

2006); United States v. Talley, 

, 787 (11th Cir. 2005); United States

v. Chau, 

, 1323-24 (11th Cir. 2005); United States v. Duncan, 

, 1303 (11th Cir. 2005). Because the sentencing court operated within

the advisory guidelines range, Cunningham v. California does not change this

result. 

(2007). There, California’s determinate sentencing scheme

was held unconstitutional because it allowed the judge to exceed the statutory

maximum. 

Unlike Cunningham, Castillo’s sentence did not exceed the

statutory maximum.

      Finally, as to Castillo’s hearsay argument, the Confrontation Clause

protections set forth in Crawford v. Washington, 

, 

(2004), do not extend to sentencing hearings. See United States v. Cantellano,

, 1146 (11th Cir. 2005), cert. denied, 

(2006); United

States v. Baker, 

, 1254 n.68 (11th Cir. 2005), cert. denied, 126 S.

Ct. 1809 (2006). The court’s consideration of hearsay testimony presents no due

process problem either. A sentencing court may consider hearsay to enhance a

defendant’s sentence, “provided that the evidence has sufficient indicia of

reliability, the court makes explicit findings of fact as to credibility, and the

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defendant has an opportunity to rebut the evidence.” 

.

The hearsay statements bore sufficient indicia of reliability because the case

agent’s testimony was consistent with the facts Castillo admitted in his plea

colloquy and corroborated by Castillo’s testimony, the case agent’s personal

observations, audio and videotape, and physical evidence. The court found the

case agent’s testimony credible, and Castillo declined his opportunity to cross-

examine the case agent. Accordingly, we affirm.

      AFFIRMED.




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