NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 15 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-6564 D.C. No. Plaintiff - Appellee, 2:23-cr-00010-DLC-2 v.

MEMORANDUM*

MARTIN TOPETE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted August 12, 2025** Anchorage, Alaska

Before: GRABER, OWENS, and R. NELSON, Circuit Judges.

Defendant Martin Topete pleaded guilty to conspiracy to distribute and

possess, with intent to distribute, a controlled substance (methamphetamine and

fentanyl), in violation of 21 U.S.C. § 846. We have jurisdiction under 18 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1291, and we affirm in part and dismiss in part.

1. Reviewing de novo, United States v. Brooks, 772 F.3d 1161, 1167 (9th

Cir. 2014), we hold that the district court did not violate the Confrontation Clause

when it admitted hearsay testimony in the sentencing hearing, see United States v.

Franklin, 18 F.4th 1105, 1114 (9th Cir. 2021) (holding that the Confrontation

Clause and the rules of evidence do not apply at sentencing).

2. We review Defendant’s due process challenge for plain error, because he

did not raise this issue at sentencing. United States v. Vanderwerfhorst, 576 F.3d

929, 934 (9th Cir. 2009). Defendant argues that evidence from Trevor Handy, and

Defendant’s text-message exchanges with co-conspirators, were (1) false or

unreliable, and (2) the basis for the sentence. See id. at 935–36 (describing

requirements for this type of due process challenge). The challenged evidence was

neither false nor unreliable, so this argument fails.

3. Defendant’s remaining arguments are covered by his appeal waiver. He

waived the right to appeal “any aspect of the sentence,” which includes the

application of enhancements.

AFFIRMED IN PART and DISMISSED IN PART.

2 24-6564