United States v. William Scott Blythe, 944 F.2d 356 (7th Cir. 1991). · Go Syfert
United States v. William Scott Blythe, 944 F.2d 356 (7th Cir. 1991). Cases Citing This Book View Copy Cite
64 citation events (4 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Mercado (ca7, 2002-02-06)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 49 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Mercado
7th Cir. · 2002 · confidence medium
United States v. Elizalde-Adame, 262 F.3d 637, 640-41 (7th Cir.2001); United States v. Blythe, 944 F.2d 356, 362 (7th Cir.1991).
discussed Cited as authority (rule) United States v. Joseph Butch
3rd Cir. · 2001 · confidence medium
See United States v. Limberopoulos, 26 F.3d 245, 252-53 (1st Cir.1994) (concluding Application Note A applies to Percodan, Percocet and Valium); United States v. Meitinger, 901 F.2d 27, 29 (4th Cir.1990) (ruling the same with respect to Dilaudid, containing the active ingredient hydromorphone, a Schedule II Opiate), cert, denied, 498 U.S. 531 (1990); United States v. Blythe, 944 F.2d 356, 362 (7th Cir.1991) (same); United States v. Young, 992 F.2d 207 (8th Cir.1993) (holding that the weight of the entire tablet and not just the amount of the illegal hydromorphine contained therein should be us…
cited Cited as authority (rule) United States v. Norris W. Jackson
7th Cir. · 1999 · confidence medium
United States v. Blythe, 944 F.2d 356, 360 (7th Cir.1991).
cited Cited as authority (rule) United States v. Maurice Sewell
7th Cir. · 1998 · confidence medium
United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
cited Cited as authority (rule) United States v. Joseph A. Liggett
7th Cir. · 1997 · confidence medium
These reports are not part of the record and may not be considered on appeal. 4 United States v. Blythe, 944 F.2d 356, 362 (7th Cir.1991).
cited Cited as authority (rule) Mark L. Neff v. United States
7th Cir. · 1997 · confidence medium
United States v. Blythe, 944 F.2d 356, 362 (7th Cir.1991)
cited Cited as authority (rule) United States v. Faye E. Willis
7th Cir. · 1996 · confidence medium
United States v. Atkinson, 979 F.2d 1219, 1222 (7th Cir.1992); United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
discussed Cited as authority (rule) United States v. John J. Ryan
7th Cir. · 1996 · confidence medium
(Appellant's brief, p. 5) This court has previously rejected this type of argument in U.S. v. Sasson, 62 F.3d 874 (7th Cir.1995) (holding that Ryan's codefendant, Leonard Sasson, was properly sentenced using gross weight of tablets), pet'n for cert. filed, No. 95-7253 (U.S. Dec. 21, 1995); U.S. v. Lacour, 32 F.3d 1157, 1159 (7th Cir.1994) (per curiam ) (no plain error in using gross weight in sentencing); and U.S. v. Blythe, 944 F.2d 356, 362-63 (7th Cir.1991) (it is proper to base sentence on total weight of dilaudid).
discussed Cited as authority (rule) United States v. Leonard Sasson
7th Cir. · 1995 · confidence medium
See, e.g., Lacour, 32 F.3d 1157 (interpreting 21 U.S.C. § 841 (b)(1)(C); holding that a defendant’s sentence should be based on the gross weight of Dilaudid tablets); United States v. Crowell, 9 F.3d 1452, 1454 (9th Cir.1993) (stating that the general Guideline principle under U.S.S.G. § 2D1.1 is that drug quantity includes the entire weight of any mixture containing a detectable amount of controlled substance; holding that the gross weight of Dilaudid tablets, rather than the weight of the active ingredient contained in the tablets, is the proper measure of drug quantity), cert. denied, �…
discussed Cited as authority (rule) United States v. Bernard J. Morgano, Dominick Palermo, Nicholas Guzzino, Peter Petros, Sam Nuzzo, Jr. And Samuel Glorioso (2×) also: Cited "see, e.g."
7th Cir. · 1994 · confidence medium
Because they failed to raise this argument during sentencing, it is waived on appeal, United States v. Rivero, 993 F.2d 620, 623 (7th Cir.1993); United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991), and we review instead only for plain error, Fed.
discussed Cited as authority (rule) United States v. James Earl Landers
6th Cir. · 1994 · confidence medium
United States v. Crowell, 9 F.3d 1452, 1454 (9th Cir.1993); United States v. Young, 992 F.2d 207, 209-12 (8th Cir.1993); United States v. Blythe, 944 F.2d 356, 362-63 (7th Cir.1991); United States v. Shabazz, 933 F.2d 1029, 1035-36 (D.C.Cir.), cert. denied, — U.S. -, 112 S.Ct. 431 , 116 L.Ed.2d 451 (1991); United States v. Lazarchik, 924 F.2d 211, 213-14 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 96 , 116 L.Ed.2d 67 (1991); United States v. Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, 498 U.S. 985 , 111 S.Ct. 519 , 112 L.Ed.2d 531 (1990).
discussed Cited as authority (rule) United States v. Ahern
N.D. Ill. · 1994 · confidence medium
As for any potential claim of a “fundamental defect which inherently results in a complete miscarriage of justice,” by definition the purported misinformation had to be known to Ahem 2 or to his counsel or both — and thus the total failure to raise the claimed error prior to or at the sentencing hearing waived the objection (United States v. Blythe, 944 F.2d 356, 361 (7th Cir.1991)).
cited Cited as authority (rule) United States v. Isaac Samaniego-Rodriguez and Francisco Morales-Mendoza
7th Cir. · 1994 · confidence medium
United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
cited Cited as authority (rule) United States v. Rufino Garcia, Miguel Vaca and Federico Rivera
7th Cir. · 1994 · confidence medium
United States v. Blythe, 944 F.2d 356, 361 (7th Cir.1991) (“a sentencing judge is not bound by the presentence report’s recommendations concerning sentence”).
discussed Cited as authority (rule) United States v. Richard L. Breeding
7th Cir. · 1994 · confidence medium
Breeding did not object on hearsay grounds to the transcript of the tape at the sentencing hearing and our review of this claimed error is under a "plain error" standard, see United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991); Fed.R.Crim.P. 52(b). "[I]t is clear that there is no error, much less plain error in this case." United States v. South, No. 93-1796, slip op. at 12 (7th Cir. June 29, 1994).
cited Cited as authority (rule) United States v. Louis Lacour
7th Cir. · 1994 · confidence medium
In United States v. Blythe, 944 F.2d 356, 363 (7th Cir.1991), the defendant objected to the use of the gross weight of the dilaudid tablets in calculating his sentence.
discussed Cited as authority (rule) United States v. Limberopoulos
1st Cir. · 1994 · confidence medium
See United States v. Crowell, 9 F.3d 1452, 1454 (9th Cir.1993); United States v. Young, 992 F.2d 207, 209 (8th Cir.1993); United States v. Blythe, 944 F.2d 356, 362 (7th Cir.1991); United States v. Shabazz, 933 F.2d 1029, 1032-33 (D.C.Cir.), cert. denied, — U.S. -, 112 S.Ct. 431 , 116 L.Ed.2d 451 (1991); United States v. Lazarchik, 924 F.2d 211, 214 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 96 , 116 L.Ed.2d 67 (1991); United States v. Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, 498 U.S. 985 , 111 S.Ct. 519 , 112 L.Ed.2d 531 (1990); United States v. Bayerle, 898 F.2d 28, 31 (4…
discussed Cited as authority (rule) United States v. Limberopoulos
1st Cir. · 1994 · confidence medium
See United States v. ___ ______________ Crowell, 9 F.3d 1452, 1454 (9th Cir. 1993); United States v. _______ ______________ Young, 992 F.2d 207, 209 (8th Cir. 1993); United States v. _____ ______________ Blythe, 944 F.2d 356, 362 (7th Cir. 1991); United States v. ______ ______________ Shabazz, 933 F.2d 1029, 1032-33 (D.C.
discussed Cited as authority (rule) United States v. Larry J. Pedigo (2×) also: Cited "see, e.g."
7th Cir. · 1994 · confidence medium
United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
cited Cited as authority (rule) United States v. Raymond Davis
7th Cir. · 1993 · confidence medium
See United States v. Rivero, 993 F.2d 620, 623 (7th Cir.1993); United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
discussed Cited as authority (rule) United States v. Shirley F. Crowell, United States of America v. Alan Julian, United States of America v. Lora G. Horner
9th Cir. · 1993 · confidence medium
See United States v. Young, 992 F.2d 207, 209-10 (8th Cir.1993); United States v. Blythe, 944 F.2d 356, 362-63 (7th Cir.1991); Shabazz, 933 F.2d at 1031-37 ; United States v. Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, 498 U.S. 985 , 111 S.Ct. 519 , 112 L.Ed.2d 531 (1990); cf. United States v. Lazarchik, 924 F.2d 211, 213-14 (11th Cir.), cert. denied, — U.S.—, 112 S.Ct. 96 , 116 L.Ed.2d 67 (1991).
cited Cited as authority (rule) United States v. Larry Howard
7th Cir. · 1993 · confidence medium
United States v. Rivero, 993 F.2d 620, 623 (7th Cir.1993); United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
discussed Cited as authority (rule) United States v. Robert C. Dougherty
7th Cir. · 1993 · confidence medium
Once the guilt of a defendant has been established, the sentencing judge may, consistent with the due process clause, consider responsible unsworn testimony." United States v. Blythe, 944 F.2d 356, 363 (7th Cir.1991). 16 The defendant next argues that the court violated section 6A1.3 of the Sentencing Guidelines, which states that: 17 (a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor.... 18 (b) The court shall resolve disputed sentencing factors in …
cited Cited as authority (rule) United States v. Noah Ryan Robinson
7th Cir. · 1993 · confidence medium
Accord United States v. Edwards, 945 F.2d 1387, 1404 (7th Cir.), cert. denied, — U.S. —, 112 S.Ct. 1590 , 118 L.Ed.2d 308 (1992); United States v. Blythe, 944 F.2d 356, 360 (7th Cir.1991).
discussed Cited as authority (rule) United States v. John Ed Young, Sr. (2×)
8th Cir. · 1993 · confidence medium
United States v. Blythe, 944 F.2d 356, 362-63 (7th Cir.1991); United States v. Shabazz, 290 U.S.App.D.C. 23 , 933 F.2d 1029, 1031-37 , cert. denied, — U.S. -, 112 S.Ct. 431 , 116 L.Ed.2d 451 (1991); United States v. Lazarchik, 924 F.2d 211, 213-14 (11th Cir.), cert. denied, — U.S. —, 112 S.Ct. 96 , 116 L.Ed.2d 67 (1991); United States v. Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, 498 U.S. 985 , 111 S.Ct. 519 , 112 L.Ed.2d 531 (1990).
cited Cited as authority (rule) United States v. Rene Rivero
7th Cir. · 1993 · confidence medium
United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991); United States v. Heilprin, 910 F.2d 471, 474 (7th Cir.1990).
cited Cited as authority (rule) United States v. Frank Eibler, Clark Meunier, Also Known as Clark Cervetti, Also Known as Clark Meinier, and Edward Leep
7th Cir. · 1993 · confidence medium
See United States v. Atkinson, 979 F.2d 1219, 1224 (7th Cir.1992); United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
cited Cited as authority (rule) United States v. Margarito E. Guerra
7th Cir. · 1993 · confidence medium
United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991) (issues not raised at the sentencing hearing are waived).
discussed Cited as authority (rule) City Of Chicago v. Matchmaker Real Estate Sales Center, Incorporated
7th Cir. · 1993 · confidence medium
Matter of Establishment Inspection of Microcosm, 951 F.2d 121, 126 (7th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 55 , 121 L.Ed.2d 24 (1992); United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
cited Cited as authority (rule) United States v. Roy L. Wilson
7th Cir. · 1992 · confidence medium
United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991); United States v. Livingston, 936 F.2d 333, 335 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 884 , 116 L.Ed.2d 787 (1992).
discussed Cited as authority (rule) City of Chicago v. Matchmaker Real Estate Sales Center, Inc.
7th Cir. · 1992 · confidence medium
Matter of Establishment Inspection of Microcosm, 951 F.2d 121, 126 (7th Cir.1991), cert. denied, — U.S. —, 113 S.Ct. 55 , 121 L.Ed.2d 24 (1992); United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
discussed Cited as authority (rule) United States v. Claude H. Atkinson and Jerry D. Montgomery
7th Cir. · 1992 · confidence medium
However, where, as here, objections are raised to the sentencing procedures that were not raised at the time of sentencing, waiver results, United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991), and we shall reverse only if plain error has occurred.
discussed Cited as authority (rule) United States v. Michael Bedell (2×)
7th Cir. · 1992 · confidence medium
United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991); United States v. Livingston, 936 F.2d 333, 335 (7th Cir.1991), cert. denied, 112 S.Ct. 884 (1992).
cited Cited as authority (rule) United States v. John R. Mason
7th Cir. · 1992 · confidence medium
Mason waived this argument by failing to raise it below, see United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991), so we may reverse the district court only if it committed plain error.
discussed Cited as authority (rule) United States v. Pete Upthegrove
7th Cir. · 1992 · confidence medium
As we noted in United States v. Blythe, 944 F.2d 356, 362 (7th Cir.1991), “the penalty for drug possession and distribution is determined by the quantity of the ‘mixture or substance containing a detectable amount’ of a drug rather than the amount of pure drug.” United States v. Garcia, 925 F.2d 170 (7th Cir.1991), is analogous.
cited Cited as authority (rule) United States v. David Hughes, Also Known as Jesse Ellebee, Atilano Velasquez, and Martin Leanos
7th Cir. · 1992 · confidence medium
United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991) (failure to raise a challenge in front of the sentencing court waives that issue on appeal).
discussed Cited as authority (rule) United States v. Robert L. Johnson
7th Cir. · 1992 · confidence medium
However, there is no sixth amendment violation at sentencing when, for example, a judge considers unsworn testimony, see United States v. Blythe, 944 F.2d 356, 363 (7th Cir.1991), or refuses to allow cross-examination of a witness, see United States v. Allen, 797 F.2d 1395, 1401 (7th Cir.), cert. denied, 479 U.S. 856 (1986).
discussed Cited as authority (rule) United States v. Victor Caban
7th Cir. · 1992 · confidence medium
Plain error must be “obvious as well as significantly prejudicial.” United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991) (quoting Peretz v. United States, — U.S. —, 111 S.Ct. 2661, 2678 , 115 L.Ed.2d 808 (1991)).
discussed Cited as authority (rule) United States v. Richards (2×)
N.D. Ind. · 1992 · confidence medium
United States v. Blythe, 944 F.2d 356, 363 (7th Cir.1991).
cited Cited "see" United States v. Beiermann
N.D. Iowa · 2008 · signal: accord · confidence high
Accord United States v. Blythe, 944 F.2d 356, 360 (7th Cir.1991) (determining that section 3552(d)’s framework for review by all interested parties applies to an addendum to the presentence report).
cited Cited "see" United States v. Craven
1st Cir. · 2001 · signal: accord · confidence high
Accord United States v. Blythe, 944 F.2d 356, 360 (7th Cir.1991) (determining that section 3552(d)’s framework for review by all interested parties applies to an addendum to the presentence report).
discussed Cited "see" United States v. Robert Kamoga
7th Cir. · 1999 · signal: see · confidence high
See United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991). *621 In his brief, Kamoga claims that, in order to apply § 3Bl.l(a), a sentencing court must find that a defendant controlled at least four other participants.
discussed Cited "see" United States v. Eric Humphrey (2×)
7th Cir. · 1998 · signal: see · confidence high
See United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991).
discussed Cited "see" United States v. Bobby Odus
7th Cir. · 1998 · signal: see · confidence high
See United States v. Olano, 507 U.S. 725 . 732-33, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). see also United States v. Blythe, 944 F.2d 356, 360 (7th Cir.1991); United States v. Turner, 898 F.2d 705, 713-14 (9th Cir.1990).
discussed Cited "see" United States v. Donald Bogusz, A/K/A Bogey, United States of America v. John O'rourke, A/K/A Hap (2×)
3rd Cir. · 1994 · signal: see · confidence high
See United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991) (relying exclusively on Justice Scalia's dissenting opinion in Peretz v. United States, 501 U.S. 923, 952-54 , 111 S.Ct. 2661, 2678 , 115 L.Ed.2d 808 (1991)).
discussed Cited "see" United States v. Bogusz
3rd Cir. · 1994 · signal: see · confidence high
See United States v. Blythe, 944 F.2d 356, 359 (7th Cir. 1991) (relying exclusively on Justice Scalia's dissenting opinion in Pretez v. United States, 111 S. Ct. 2661, 2678 (1991)).
cited Cited "see" United States v. Roger Hall
7th Cir. · 1994 · signal: see · confidence high
See United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991) (“The failure to raise a challenge before the sentencing court results in a waiver of the issue on appeal.") (citations omitted).
discussed Cited "see, e.g." United States v. Booker T. Duke
7th Cir. · 1994 · signal: see also · confidence medium
See also United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991) (district court's determination will be upheld unless defendant can demonstrate that the district court committed plain error) 2 The Advisory Committee Notes accompanying the 1974 Amendment to Federal Criminal Procedural Rule 12 state that objections to evidence on the ground that evidence was illegally obtained must be raised prior to trial ... "whatever the claimed basis for the application of the exclusionary rule of evidence may be." See United States v. Mitchell, 951 F.2d 1291, 1296 (D.C.Cir.1991)
discussed Cited "see, e.g." United States v. James Caputo
7th Cir. · 1992 · signal: see also · confidence medium
It is an error that is plain and “likely to have made a difference in the judgment, so that failure to correct it could result in a miscarriage of justice, that is, in the conviction of an innocent person or the imposition of an erroneous sentence.” United States v. Newman, 965 F.2d 206, 213 (7th Cir.1992). “[L]ikely to have made a difference in the judgment” is at least a tad stronger than not harmless, and some of our cases draw the distinction more starkly: “we determine whether the alleged error resulted in a miscarriage of justice of such magnitude that the defendant probably wo…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
William Scott BLYTHE, Defendant-Appellant
90-2867.
Court of Appeals for the Seventh Circuit.
Sep 18, 1991.
944 F.2d 356
1991 U.S. App. LEXIS 21967
1991 WL 181813
C. Joseph Russell, Asst. U.S. Atty. (argued), Indianapolis, Ind., for U.S., F. Allen Tew, Jr. (argued), Indianapolis, Ind., for defendant-appellant.
Cummings, Flaum, Grant.
Cited by 52 opinions  |  Published
GRANT, Senior District Judge.

->'FACTS

William- 'S^Qtl- Blythe was arrested for selling Hydromorphone HC1, known by the brand name; ,“|3'ilaudid,” on two occasions to a specif :agdiit' of the Drug Enforcement Agency ¿DE^' On February 28, 1990, he was indicted uñ'íjter 21 U.S.C. § 841(a)(1) for unlawful possession and distribution of a total of 370 ..Dilaudid tablets, 4 milligrams each. On 1990, he agreed to plead guilty to both founts and to cooperate with the government, The plea agreement set the maximum penalty per count of 20 years in prison, 3 .years of supervised release, and a $1 million fine. Although the document made, Cl,¿£r that the court was not bound by the plea agreement and had sole discretion to' máke the final determination of the appropriate Guideline range applicable to Blythe’s sentence, the defendant and the government jointly recommended in the agreement the following offense level:

After pleading guilty to two counts of possession with intent to distribute and distribution of the narcotic controlled substance “Dilaudid,” William Scott Blythe was sentenced to 45 months of imprisonment an|L3 yearsjtf supervised release and drug teaHb^gfipthe alleges due process violatioijupHHB-' sentencing proceedings. For the^5f||ili«lg reasons we affirm the sentencejinp.!$&|£l by the district court.

7. Ip light of the understandings set forth above, -the parties hereto agree and recommend to the Court that the appropriate initial offense level for each of the two counts charged in the Indictment herein is 24 pursuant to Guideline § 2Dl.l(a) and (c) and that a reduction in the offense level from 24 to 22 is appropriate based upon Defendant’s acceptance of responsibility pursuant to Guideline § 3El.l(a)_
8. In consideration for Defendant’s agreement to plead guilty to both counts of the Indictment, as well as his agreement to cooperate, as set forth above, the Government agrees to recommend the imposition of an executed sentence of less time than indicated in the Guidelines for an offense level 22 without recommending a specific term of years....

Along with the plea agreement the government also submitted a Guideline § 5K1.1 Statement describing Blythe’s cooperation with DEA agents and his agreement to testify against another drug dealer.

However, on July 10, 1990, the government filed a motion to withdraw the original plea agreement, explaining that it had discovered new facts and circumstances that voided the first agreement. The new information was notification by the defendant, through his attorney, that he had been selling drugs during the plea negotiation period. On the same day the parties filed their “Revised Memorandum of Final Plea Agreement,” which contained provisions identical to the first agreement, with one distinction: The government omitted its agreement to recommend an initial offense level of 24 and a downward departure of two levels for Blythe’s cooperation. On July 13, 1990, the court granted the government’s motion and ordered the first plea agreement withdrawn.

There followed a number of filings by the defendant. On July 16, 1990, Blythe filed “Defendant’s Statement of Facts,” setting forth his version of the circumstances underlying the charged offenses, and explaining his cooperation with the government in their investigation of another suspected dealer. Two days later he filed a “Notice to Court that Defendant’s Petition to Enter a Plea of Guilty Remains in Full Force and Effect.” And on August 8, 1990, he filed a “position paper” objecting to the presentence investigation report and urging the court to find the applicable Guideline level to be 12.

[*359] Meanwhile, the government sent a letter on July 27, 1990 to Blythe’s probation officer, with a copy to Blythe’s counsel, objecting to the probation officer’s computation of the base offense level for sentencing Blythe. He explained therein the reasons for changing the offense level, based on the weight of the narcotic, from 12 to 24. On August 9, 1990, an addendum to the presentence report was filed; it was a comprehensive statement of the objections raised to the presentence report by the government and the defendant. Specifically, the addendum discussed the government’s argument for an upward departure in the sentence, and the defendant’s arguments for a base level of 12 and a two-level reduction. The Defendant obtained the addendum on August 10, 1990, the day of sentencing.

At the sentencing hearing Blythe pled guilty. After ascertaining that the defendant himself had seen the presentence report and had no objections to it, the court heard the unsworn testimony of a DEA agent, who described the two drug purchases by another DEA agent, the lab analysis of the Dilaudid, and the defendant’s cooperation with the government. The court allowed Blythe and his counsel to speak in mitigation of his offense before proceeding with sentencing. Blythe’s attorney explained the initial agreement that the total base offense level would be 12, and argued that, by changing the level to 24, the government had misled Blythe.

The court used the total weight of the narcotic in calculating the sentence for Blythe. Finding that the base offense level was 24, it allowed a two-point reduction for “acceptance of responsibility” because of Blythe’s substantial cooperation with the government. The resulting imprisonment range was 41 to 51 months; the court then imposed a sentence of 45 months of imprisonment on each count, to be served concurrently, followed by 3 years of probation. Blythe filed this appeal. Pursuant to the jurisdiction granted an appellate court under the Sentencing Reform Act, we review this sentence for error of law and for misapplication of the sentencing guidelines. See 18 U.S.C. § 3742(a) and (d).

II. ANALYSIS -

A. STANDARD OF REVIEW

The defendant admits that he did not object at the sentencing hearing to the errors he now alleges to be due process violations. The failure to raise a challenge before the sentencing court results in a waiver of the issue on appeal. United States v. Macias, 930 F.2d 567, 570 (7th Cir.1991). Because the ijefendantgdid not preserve this issue by preBjlj^nP proper objection below, the court’SffplISg |aay be reversed only if “plain error” was committed. United States v. White, 903 F.2d 457, 466 (7th Cir.1990) (citing United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988)).

The plain error doctrine requires appellate courts to correct “particularly egregious errors.” United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). The Supreme Court requires the error to be “obvious as well as significantly prejudicial.” Peretz v. United States, — U.S. -, 111 S.Ct. 2661, 2678, 115 L.Ed.2d 808 (1991). If the district court’s error is “palpably wrong,” United States v. Kehm, 799 F.2d 354, 363 (7th Cir.1986), and if we are “convinced that it is necessary in order to avert an actual miscarriage of justice,” United States v. Requarth, 847 F.2d 1249, 1254 (7th Cir.1988) (quoting United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985)), we will reverse the district court’s decision. It is under this narrow standard that we consider the defendant’s contentions on appeal.

B. SENTENCING HEARING CHALLENGES

1. Contentions concerning addendum to presentence report

Blythe raises three issues concerning the addendum to the presentence investigation report filed by the government: first, that a due process violation occurred as a result of its untimely delivery to Blythe;,, second, that the government misled, .him by sug[*360] gesting initially that it would recommend a base offense level of 12 but later, in the addendum, raising the level to 24; and third, that the court considered only the addendum and not the full presentence report. We comment, as well, on the proper method for challenging the content to an addendum.

a. Untimely delivery to defendant

Blythe informs us that, under 18 U.S.C. § 3552(d), a presentence report must be given to the defendant and his counsel at least ten days prior to the date set for sentencing. He asserts that his receipt of the addendum to the presentenee report on the day of sentencing was a denial of his due process rights under that provision. He further contends that the sentencing judge erred by failing to ask the defendant whether he had discussed both the report and the addendum with his counsel.

Mr. Blythe’s argument goes astray at the initial point, when he omits a crucial portion of the statutory text:

The court shall assure that a report filed pursuant to this section is disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant.

18 U.S.C. § 3552(d) (emphasis added). The defendant may waive that period by failing to assert his rights at the appropriate time. United States v. Busche, 915 F.2d 1150, 1151 (7th Cir.1990). In this case neither Blythe nor his lawyer asked for additional time. Answering questions by the court, the defendant stated that he had looked at the presentence report and had no objection to it. Despite numerous opportunities before and during the sentencing hearing, he did not inform the court that he wanted to invoke his entitlement to the ten-day period. The burden of asserting that ten-day period is placed on the defendant rather than the judge; a defendant’s silence surrenders any rights he may have had under § 3552(d).

By saying that the defendant may waive the 10 days in which to study the presentence report, § 3552(d) gave the defendant charge of the timing. Nothing in the text or structure of the law implies that the district court must initiate a colloquy along the lines of Fed. R.Crim.P. 11(c) to determine whether the accused understands this. Defendants therefore may surrender their right under § 3552(d) by participating in sentencing without objection.

Id. We find that Blythe waived his right to a ten-day review period under § 3552(d) by failing to assert it at the appropriate time. As we said in Busche, a defendant’s election to participate in sentencing without objection, “whether advertent or not, is conclusive.” Id.

The court was not asked to postpone the sentencing hearing, and it did not. Was Blythe significantly prejudiced because the hearing was conducted on the same day that the addendum was filed? Certainly not. Nothing in the addendum was new; it clearly and fairly presented both parties’ objections to the presentence report and offered the probation office’s response. Blythe had long known that 24 was the government’s recommended base level, and he had agreed to it in the plea agreement filed May 17,1990. Furthermore, the court had before it defense counsel’s written objections to the initial offense level, and heard his oral arguments on this issue at the hearing. After reviewing the transcript of the hearing, we find that the court fully accorded the defendant and his counsel “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence,” as required by Fed.R.Crim.P. 32. Under the circumstances herein, no miscarriage of justice can possibly be found in the court’s holding of the sentencing hearing on the day that the addendum was filed. We hold that the court committed no plain error by proceeding with the sentencing.

b. Content of addendum: base offense level

We note that Blythe points out only one difference between the original presen-[*361] tence report and the addendum, namely the change in the sentencing recommendation from base level 12 to 24. Blythe asserts that the addendum falsely represented the government’s recommended base level as 24 rather than 12, and that the government misled him by originally suggesting 12 as the appropriate guideline level.

We find this argument to be devoid of any merit. As was discussed above, the original plea agreement, signed by Blythe, recommended 24 as the appropriate offense level. The revised one, which omitted a recommendation after it was learned that Blythe was still dealing drugs, reiterated the recommended maximum sentence and gave no intimation that the government would propose a lower offense level. The defendant persisted in his guilty plea, nevertheless, and neither objected to the base level of 24 nor attempted to renegotiate the agreement. He was well aware of the government’s objections to the original presentence report and its intention to recommend a level based on the figures to which Blythe had consented in the plea agreement. And yet, at the sentencing hearing, Blythe refused to withdraw or challenge the plea, even when the court advised him of his right to change his mind. We find nothing misleading in the government’s treatment of Blythe. [1]

We further find that the addendum to the presentence report neither misrepresented the government’s position nor prejudiced the defendant. As was shown above, nothing in the addendum was new or surprising. The hearing transcript reflects that Blythe’s attorney informed the court of the discrepancy in the base level recommendations, and the court considered the matter before ruling that 24 was the proper base level. There is no hint of error in the court’s conduct.

We hold that no prejudice, substantial or otherwise, can be found in the court’s consideration of the initial offense levels recommended in the presentence report, the addendum, and the hearing. Our review of the record reveals that the court sentenced Blythe on the basis of accurate information presented by both the defendant and the government, and committed no error at arriving at the base level of 24.

There are three other reasons that Blythe’s claims concerning the addendum cannot succeed. The first is that Blythe had no right to the sentencing recommendation. Due process guarantees that a defendant see the presentence report in his case and have the opportunity to refute its contents before the district court; but there is “no constitutional or statutory right to be informed of a particular sentencing recommendation made by the probation office to the district court.” United States v. Heilprin, 910 F.2d 471, 474 (7th Cir.1990). Pursuant to Rule 32(c)(3) of the Federal Rules of Criminal Procedure, the court is required to permit the defendant to read the presentence report “exclusive of any recommendation as to sentence.” Fed.R.Crim.P. 32(c)(3)(A).

Second, if Blythe believed that the suggested base offense level of 24 was inaccurate, he was obliged under Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure to inform the district court of any error in the presentence report prior to, or at, the sentencing hearing. When given the opportunity to challenge the report by the court, Blythe declined. By failing to raise his objection in a timely fashion, he has waived the right. United States v. Stout, 882 F.2d 270, 272 n. 3 (7th Cir.1989); United States v. Atehortua, 875 F.2d 149, 151 (7th Cir.1989).

And third, in any case a sentencing judge is not bound by the presentence report’s recommendations concerning sentence. Heilprin, 910 F.2d at 475. The reasons given by the court for the sentence were well-founded and reflect no error[*362] whatsoever. Because we find that the Guidelines were correctly applied to findings of fact that were not clearly erroneous, we see no reason to disturb the sentence below. 18 U.S.C. § 3742(e). See United States v. Hassan, 927 F.2d 303, 306 (7th Cir.1991); United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989). '

c. Court’s review of addendum alone

The defendant claims that his probation officer informed him after the sentencing hearing that, according to standard filing procedure in the Southern District of Indiana, the court had before it only the addendum to the presentence report, and not the full report. He asserts that his due process rights were thereby violated, both because the addendum did not contain the matters comprehensively found in the original report, and because the addendum, which did not properly reflect the defendant’s objection to the offense level of 24, was materially erroneous.

Such an allegation, arising from information outside the record before the court, will not be considered in this appeal.

The defendant’s present citation to evidence outside the record to establish his version of the truth, which he alleges conflicts with the government’s, is of no avail in the context of appellate review. ... An appellant may not attempt to build a new record on appeal to support his position with evidence that was never admitted in the court below.

United States v. Phillips, 914 F.2d 835, 840 (7th Cir.1990) (citing cases).

We feel compelled to comment, however, that the defendant offers no evidence to support his allegation, and indeed the record refutes the claim. The district court told Blythe at the hearing that it had his presentence report, and invited the defendant to comment on it. The judge’s questions and comments throughout the hearing reflect his full and thorough knowledge of the record before him, a record that certainly included the presentence report. Moreover, the addendum itself explained the defendant’s position that the offense level should be 12. We will not entertain such empty allegations.

2. Sentencing based on gross weight

One last point should be considered. Although no objection was made to the addendum, in his “position paper” concerning sentencing and in his counsel’s closing argument for mitigation of the sentence Blythe did contend that the offense level must be based on the net, rather than gross, weight of the drug. However, the court rejected that proffered approach, finding instead that the government’s use of gross weight of the drug was correct. [2]

We find that the district court correctly upheld the use of the gross weight of the drug in calculating the base offense level. Under both the statute, 21 U.S.C. § 841, and the Sentencing Guidelines, § 2Dl.l(c), the penalty for drug possession and distribution is determined by the quantity of the “mixture or substance containing a detectable amount" of a drug rather than the amount of pure drug. United States v. Marshall, 908 F.2d 1312, 1317 (7th Cir.1990) (en banc), aff'd sub nom. Chapman v. United States, — U.S. -, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). In Marshall this court upheld the constitutionality of sentences based on the gross weight of drug plus the medium in which it is sold:

Distributors pick their poison. The penalties are plain for all to see. They decide what drug to peddle, on what medi-um_ Retailers who select sugar rather than blotter paper on which to sell LSD must accept their fate.

Marshall, 908 F.2d at 1325. See also United States v. Garcia, 925 F.2d 170, 172 (7th Cir.1991). The Supreme Court affirmed[*363] Marshall, finding that Congress reasonably established a sentencing system based on the “mixture or substance containing a detectable amount” of the prohibited drug:

By measuring the quantity of the drugs according to the “street weight” of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme.

Chapman v. United States, 111 S.Ct. 1919, 1927-28 (1991) (holding that the weight of the blotter paper containing LSD, and not the weight of the pure LSD, determines eligibility for the minimum sentence). And the D.C. Circuit recently applied Marshall specifically to the drug Dilaudid, holding that Dilaudid is a “mixture or substance” containing hydromorphone. United States v. Shabazz, 933 F.2d 1029, 1032 (D.C.Cir.1991). Accord, United States v. Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, — U.S. -, 111 S.Ct. 519, 112 L.Ed.2d 531 (1990); United States v. Bayerle, 898 F.2d 28, 32 (4th Cir.), cert. denied, — U.S. -, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990).

We conclude that the court properly based its sentence on the total weight of the Dilaudid, and followed the Guidelines in determining the sentence. Since proof of the sentencing factors under the Guidelines by a preponderance of the evidence satisfies due process, United States v. Ross, 905 F.2d 1050, 1054 (7th Cir.), cert. denied, — U.S. -, 111 S.Ct. 172, 112 L.Ed.2d 136 (1990), we hold that there was no violation of due process in Blythe’s sentencing.

3. Court’s admission of unsworn testimony

The defendant charges that his constitutional right to confront witnesses was jeopardized because the DEA agent testifying at the sentencing hearing was not placed under oath by the court. Once again we note that Blythe did not object to the court’s acceptance of testimonial evidence from the unsworn witness. The defendant was also advised that, by pleading guilty, he would waive his right to confront and cross-examine the witnesses against him.

The rule that a witness be sworn before testifying does not apply to sentencing proceedings. Fed.R.Evid. 1101(d)(3). Once the guilt of a defendant has been established, the sentencing judge may, consistent with the due process clause, consider responsible unsworn testimony. United States v. Harris, 558 F.2d 366, 373 (7th Cir.1977), quoted in United States v. Barnes, 907 F.2d 693, 695 n. 3 (7th Cir.1990). Although unreliable hearsay statements of a confidential informant may be improper bases for the court’s reliance, see Barnes, 907 F.2d at 696-97, Blythe gives us no reason to question the integrity or reliability of the testimony of the DEA agent. We hold that no due process violation occurred because of the sentencing court’s reliance on the unsworn testimony of a DEA agent. See also United States v. Nesbitt, 852 F.2d 1502, 1521 (7th Cir.1988), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989).

III. CONCLUSION

The defendant’s contentions concerning the addendum to the presentence report are insubstantial. His complaint that the government misled him is inaccurate. His claim that the court viewed only the addendum is purely hypothetical and outside the record of this case. His assertion that sentencing must be based on net rather than gross weight of the drug has no legal basis. And his objection to unsworn testimony at the sentencing hearing is wrongly based on trial rather than sentencing due process rights. We found above that these arguments failed; the remaining claims not addressed herein were completely without merit.

We hold that there was certainly no “plain error” in the court’s sentencing proceedings and AFFIRM the sentence imposed.

1

. Blythe has also argued that the court did not resolve the factual dispute concerning the government’s "inducement” of Blythe’s guilty plea by a promise of recommending a base level of 12. This contention is equally without merit. In light of the comprehensive plea agreements, the appended Acknowledgement, the defendant’s reassertion of his desire to plead guilty, his answers to the court that his plea was voluntary and not induced, and the record before this appellate court, we are surprised that the defendant has the audacity to make this claim.

2

. The total gross weight of the Dilaudid (hydro-morphone HC1) tablets, according to the DEA Laboratory reports, was 34.92 grams. In the Sentencing Commission’s Drug Equivalency Tables, under "Schedule I or II Opiates," hydro-morphone is listed as being equal to 2 Vi times its weight in heroin. Blythe’s sale of 370 Dilau-did tablets weighing 34.92 grams was therefore equal to 87.3 grams of heroin. The drug quantity table in Sentencing Guideline § 2D 1.1 places 80-100 grams of heroin at base offense level 24. The sentencing range for that level - is 41-51 months.