Buelna

MEMORANDUM AND ORDER **

Ricardo Buelna appeals his conviction on one count of conspiracy to possess with intent to distribute cocaine and one count of attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

We review for plain error whether Buelna’s Sixth Amendment right to confront the witnesses against him was violated when Ted Verdugo testified that Scott Blaney told him Buelna had ten kilograms of cocaine. See United States v. Allen, 425 F.3d 1231, 1235 (9th Cir.2005). In Crawford v. Washington, 541 U.S. 36, 68 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the Supreme Court held that admitting an out-of-court statement of an unavailable declarant violates the Confrontation Clause if the statement is “testimonial.” Blaney’s statement was not ex parte testimony such as an affidavit or other pretrial statement reasonably expected to be used judicially. Nor was it formalized testimonial material such as a deposition or confession, or made under circumstances such that an objective witness would believe the statement would be available later for use at trial. See id. at 51-52 , 124…