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750 – Sentencing Hearing, Generally (§6A)

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§755 Burden of Proof at Sentencing

11th Circuit reiterates that preponderance standard applies even to 12-level guideline increases. (755) Defendant pleaded guilty to providing material support to a terrorist organization. At sentencing, the district court increased his offense level by 12 under the terrorism guideline, § 3A1.4. The Eleventh Circuit reiterated its decision in U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), that the preponderance-of-the-evidence standard, not the clear -and-convincing-evidence standard, applies to guideline enhancements—even to 12-level enhancements that have a very significant impact on the sentence. U.S. v. Arcila Ramirez, __ F.4th __ (11th Cir. Nov. 1, 2021).

1st Circuit finds preponderance standard applicable to relevant conduct determinations. (170)(755) The First Circuit held that the preponderance-of-the-evidence standard is the appropriate standard of proof even when relevant conduct drives the sentence significantly higher than it would be without reliance on relevant conduct. U.S. v. Sandoval, __ F.3d __ (1st Cir. July 7, 2021) No. 18-1995.

4th Circuit says rebuttable presumption of undue influence did not shift burden of proof. (310)(755) At defendant’s sentencing for having sex in a foreign country with a minor, the district court increased the sentence under § 2G1.3(b)(2)(B) for because defendant “unduly influenced” a minor. Application Note 3B to this section creates a rebuttable presumption that if the defendant is more than 10 years older than the victim, defendant has unduly influenced the victim. Defendant argued that the presumption violated § 6A1.3 which allows any relevant and reliable evidence to be considered in resolving disputed facts, and that it also improperly shifted the burden of proof to the defendant. The Fourth Circuit rejected both arguments, finding that § 6A1.3 does not bar the court from considering age disparity, and that the government never lost its burden to prove every sentencing factor by a preponderance of the existence. U.S. v. Arbaugh, __ F.3d __ (4th Cir. Feb. 20, 2020) No. 18-4575.

10th Circuit rejects heightened standard of proof even though enhancement doubled guideline range. (755) Defendant pleaded guilty to possession of a firearm by a felon. At sentencing, the court increased his offense level because defendant had pointed the firearm at an officer. Defendant argued that because the enhancement more than doubled his guideline range, a standard of proof higher than a preponderance of the evidence should apply. The Tenth Circuit noted that the Supreme Court has not adopted a heightened standard of proof for guideline enhancements and therefore the correct standard was a preponderance of the evidence. U.S. v. Robertson, __ F.3d __ (10th Cir. Jan. 6, 2020) No. 18-2165.

9th Circuit reverses for lack of “clear and convincing evidence” that alien entered U.S within 15 years of prior convictions. (340)(504)(755) Defendant was arrested in 2017 and pleaded guilty to illegal reentry after deportation. His offense level and criminal history were increased based on prior drug convictions in 1998 and 2000. The criminal history guideline, §4A1.2(e) excludes prior sentences imposed more than 15 years before the present offense. Nevertheless, the district court found—based partly on defendant’s 2004 arrest for driving under the influence—that defendant’s present reentry offense began no later than 2004, and that he had been continuously in the U.S. thereafter. The Ninth Circuit reversed, ruling that the district court’s finding had a “disproportionate impact” on the sentence, requiring proof by “clear and convincing evidence.” The panel found that the government could not prove by clear and convincing evidence that defendant had been continuously present in the U.S. since his arrest for driving under the influence. U.S. v. Valle, __ F.3d __ (9th Cir. Oct. 9, 2019) No. 18-50199.

6th Circuit applies preponderance standard to loss amount. (219)(755) Defendant argued that the district court applied the “probable cause” standard instead of the preponderance standard in finding the loss amount attributable to defendant from a fraud scheme. Although the district court used the phrase “probable cause,” when stating its findings regarding the amount of loss attributable to defendant, the Sixth Circuit noted that later in the sentencing proceeding the district court properly applied the preponderance standard. U.S. v. Donadeo, __ F.3d __ (6th Cir. Dec. 18, 2018) No 17-4295.

6th Circuit upholds using preponderance standard to determine drug quantity. (240)(755) Defendant was convicted of heroin distribution and conspiracy charges, and was sentenced to 78 months. He argued that the district court’s use of the preponderance-of-the-evidence standard in determining the amount of heroin attributable to him violated due process. The Sixth Circuit disagreed, citing U.S. v. Brika, 487 F.3d 450 (6th Cir. 2007), which held that due process did not require a standard higher of proof, even for large enhancements. Such increases should be viewed through the lens of Booker reasonableness rather than due process. The Supreme Court’s decision in Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013), did not call Brika into question. Alleyne held that any fact that increases the mandatory minimum sentence must be submitted to the jury. However, it did not disturb a district court’s authority to impose a sentence within the statutory range. U.S. v. Jones, __ F.3d __ (6th Cir. July 14, 2016) No. 14-1267.

11th Circuit says using acquitted conduct to calculate loss did not require clear and convincing evidence. (175)(219)(755) Defendant was involved in a long-running mortgage fraud scheme. He was convicted of conspiracy and one substantive count, and was acquitted of all other substantive counts. There were 29 properties involved in the fraudulent conduct, and the court held defendant accountable for losses attributable to ten of these properties, despite his acquittal on the substantive counts for these properties. On appeal, the Eleventh Circuit found no error. Under long-standing precedent, relevant conduct of which a defendant was acquitted may be considered in sentencing for the offense of conviction, as long as the government proves the acquitted conduct by a preponderance of the evidence. The panel rejected defendant’s argument, raised for the first time on appeal, that the court should have used a clear and convincing evidence standard. U.S. v. Cavallo, __ F.3d __ (11th Cir. June 22, 2015) No. 12-15660.

9th Circuit requires clear and convincing evidence for loss increase of 8 levels for relevant conduct. (219) (755) Defendant pleaded guilty to a single count of wire fraud. At sentencing, over defendant’s objection, the district court found that the loss resulting from defendant’s offense and relevant conduct need only be proved by a preponderance of the evidence. Applying that standard, the court found that the loss from the offense resulted in a 10-level increase and the loss from the relevant conduct resulted in an 8-level increase. The Ninth Circuit held that the district court’s finding as to the amount of loss from relevant conduct had an extremely disproportionate effect on defendant’s sentence and should have been proven by clear and convincing evidence. U.S. v. Hymas, __ F.3d __ (9th Cir. Mar. 25, 2015) No. 13-30239.

Supreme Court finds due process does not require clear and convincing evidence of enhancing prior. (755) Under a Kentucky statute regarding repeat felony offenders, a presumption of regularity attaches to enhancing prior convictions once the state proves the existence of the prior conviction. If the defendant refutes the presumption of regularity, the burden shifts back to the state to affirmatively show validity. Respondent challenged two convictions under Boykin v. Alabama, 395 U.S. 238 (1969) because the records did not contain transcripts of the plea proceedings and did not affirmatively show that the guilty pleas were knowing and voluntary. Justice O’Connor, writing for an eight member majority, found that the Kentucky burden-shifting rule did not violate due process. It cannot be presumed from the mere unavailability of a transcript that a defendant was not properly advised. In addition, due process does not require the state to prove the validity of a prior conviction by clear and convincing evidence. Respondents prior experience with the criminal justice system was relevant to whether he knowingly waived his constitutional rights at the prior guilty plea and the court was satisfied the state carried its burden of persuasion. Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517 (1992).

Supreme Court holds state may provide mandatory five-year minimum sentence for “visible possession of a firearm” even though not an element of the offense, no jury trial, and proof only by a preponderance of evidence. (755) Pennsylvania statute requires a mandatory five-year minimum sentence if a judge finds by a preponderance of evidence at sentencing that defendant “visibly possessed a firearm.” Since the statute only raises the minimum sentence and neither alters the maximum sentence nor creates a separate offense, it is constitutional. The preponderance standard satisfies due process and there is no right to a jury trial at sentencing, even where the sentence turns on specific findings of fact. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411 (1986).

1st Circuit says judicial fact-finding that did not result in mandatory minimum did not violate Alleyne. (755) Defendants were convicted of drug trafficking, and appealed the district court’s drug quantity findings. After oral argument, the Supreme Court decided Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013), holding that the Sixth Amendment requires that “facts that increase mandatory minimum sentences must be submitted to the jury.” Both defendants then argued that their sentences must be reversed because they were imposed by virtue of judicial fact-finding by a preponderance of the evidence. The First Circuit upheld their sentencing. There was no Alleyne error because all elements of the defendants’ crimes of conviction under 21 U.S.C. § 841(a)(1) and (b)(1)(C) were admitted as part of the guilty pleas, and neither defendant was sentenced to a mandatory minimum. Alleyne is not violated by factual findings made for purposes of applying the advisory sentencing guidelines. U.S. v. Ramirez-Negron, 751 F.3d 42 (1st Cir. 2014).

1st Circuit says facts for firearm increase need not to be proven beyond reasonable doubt. (755) Defendant was convicted of being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(b)(6)(B) for possessing a firearm “in connection with another felony offense.” The First Circuit rejected defendant’s claim that U.S. v. O’Brien, 130 S.Ct. 2169 (2010), required the facts underlying this enhancement to be proved beyond a reasonable doubt. O’Brien reiterated that elements of a crime that increase the penalty beyond the prescribed statutory limit must be proved beyond a reasonable doubt. It reaffirmed, however, that sentencing factors affecting a judge’s discretion within a statutorily prescribed range may be proved at sentencing by a preponderance of the evidence. Here, the district court remained bound by the applicable statutory maximum of 120 months. The enhancement did not increase the prescribed range of penalties beyond that maximum. U.S. v. Leahy, 668 F.3d 18 (1st Cir. 2012).

1st Circuit finds no prejudice in decision not to require proof of sentencing enhancement beyond a reasonable doubt. (755) During the course of defendant’s prosecution for trafficking in crack cocaine, the district court stated that defendant could not be sentenced based on the guidelines for crack cocaine unless the government proved beyond a reasonable doubt to the jury that the substance involved in defendant’s offense was crack. At sentencing, the court abandoned that position and determined that the substance involved in defendant’s offense was crack cocaine. Defendant argued that the law-of-the-case doctrine precluded the district court from revisiting its ruling. The First Circuit held that it would have been better for the court to have informed the parties of its “about-face,” but that defendant was not prejudiced by the court’s change of mind because there was ample evidence at trial that the drugs were crack and defendant had not submitted evidence to undercut that conclusion. U.S. v. Tejeda, 481 F.3d 44 (1st Cir. 2007).

1st Circuit holds that defendant waived claim for departure. (755) Defendant argued that the district court erred when it failed to depart downward sua sponte on account of his alleged post-offense rehabilitation and the conditions of his pre-sentence confinement. However, defendant explicitly conceded in his plea agreement that there were no grounds for a departure. He also agreed that he would not seek a departure on any ground from the guidelines. Accordingly, the First Circuit ruled that defendant waived his claim for a departure. U.S. v. Delgado, 288 F.3d 49 (1st Cir. 2002).

1st Circuit holds that failure to instruct jury on “if death results” in carjacking case was harmless error. (755) Defendants were convicted of carjacking under 18 U.S.C. § 2119 based an armored car robbery in which both armored car drivers were kidnapped and executed. The carjacking statute provides for an enhanced sentence “if death results” from the crime. At the time of trial, the appellate courts had treated the “if death results” provision as a sentencing matter to be resolved by the judge. However, in Jones v. United States, 526 U.S. 227 (1999), the Supreme Court ruled that the carjacking statute should be read to create three separate crimes: one where no physical harm occurred, one for “serious bodily injury” and one “if death results.” The First Circuit agreed that the failure to instruct the jury on the “if death results” requirement was error under Jones, but it was “patently harmless.” The government introduced at trial photos of the dead guards and testimony from the medical examiner who conducted the autopsies. Witnesses testified that each of the defendants had admitted that the guards were killed during the robbery. Because it was “beyond a reasonable doubt [that] the omitted element was uncontested and supported by overwhelming evidence,” the error in instruction was harmless. U.S. v. Shea, 211 F.3d 658 (1st Cir. 2000).

1st Circuit rejects higher burden of proof for acquitted conduct. (755) Defendant and his half‑brother were tried and acquitted in state court of murdering two acquaintances. They were then convicted in federal court for different crimes relating to the same episode. Section 2K2.1(c)(2) provides that where a firearm is used in connection with another offense, the base level should be that of the “object” offense. The district court found by a preponderance that defendant had participated in the premeditated murders, and applied § 2A1.1. This raised defendant’s sentence from a range of 20‑30 years to a life sentence. Defendant argued that due process required a “beyond a reasonable doubt” standard where the uncharged or acquitted crime has so severe an effect on the sentence. The First Circuit rejected the argument, noting that U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995) authorizes a district court to depart downward from the life sentence, which essentially restores pre‑guideline discretion to decide whether and how far to give weight to the murders. Although as a matter of policy the use of acquitted conduct might be troubling, the Constitution does not require a higher standard of proof. U.S. v. Lombard, 102 F.3d 1 (1st Cir. 1996).

1st Circuit upholds obstruction enhancement for suborning perjury. (755) Defendant and others kidnapped a young woman at knife point. He attempted to persuade his co‑conspirators to tell the court that the victim herself had been involved in the scheme to kidnap and hold her for ransom. The First Circuit approved an obstruction of justice enhancement based on defendant’s attempt to suborn perjury. Defendant claimed that if he been convicted of suborning perjury, he would have received a lesser sentence than he received as a result of the obstruction enhancement, and therefore due process required the government to prove the obstructive conduct beyond a reasonable doubt. However, defendant made no effort to prove his premise. Moreover, precedent clearly provides that a preponderance of the evidence standard governs at sentencing. The requirement that the court evaluate defendant’s testimony in a light most favorable to the defendant does not require the court to resolve all disputes in favor of the defendant, or to accept defendant’s self‑serving denials. U.S. v. Clark, 84 F.3d 506 (1st Cir. 1996).

1st Circuit remands to determine whether defendant made additional bribes. (755) Defendant, a city official, was charged with extorting a series of payments from a road paving firm. The jury returned a general verdict on the single count charged and provided no indication of which episodes it found to have occurred. At sentencing, defense counsel argued that only the first payment of $8,000 was adequately supported by the evidence, and that therefore various enhancements were inapplicable. The judge refused to “piecemeal” the jury’s verdict, and sentenced defendant based on all the charged bribes. The 1st Circuit remanded because it was unclear whether the judge had made an independent determination that the additional bribes occurred. On remand, the court was free to summarily find, based on the existing evidence, that the additional bribes occurred, and reimpose the same sentence. However, the court was also free to order any further proceedings it believed necessary to resolve the issue. U.S. v. Garafano, 36 F.3d 133 (1st Cir. 1994).

1st Circuit upholds use of preponderance of evidence standard at sentencing. (755) The 1st Circuit rejected defendant’s contention that the standard of proof for determining the weight of a controlled substance is “beyond a reasonable doubt.” The Supreme Court has held that the preponderance of the evidence standard satisfies due process. U.S. v. Lowden, 955 F.2d 128 (1st Cir. 1992).

1st Circuit refuses to adopt higher standard to determine whether defendant committed perjury at trial. (755) The 1st Circuit affirmed the district court’s decision to enhance defendant’s offense level for obstruction of justice based upon a finding that defendant had testified untruthfully at trial and suggested to potential witnesses that they change their stories and refuse to cooperate with law enforcement. The court rejected defendant’s argument the “beyond a reasonable doubt” standard of proof applicable to perjury cases should be employed by the sentencing court. Notwithstanding defendant’s acquittal on some charges, the trial court was not obligated to specify those portions of defendant’s testimony that it believed were falsified, since the finding of untruthfulness was supported by the record. Here, defendant repeatedly testified that he never “used,” “sold,” or “shared” cocaine and denied each of the events for which the jury found him guilty. The enhancement did not violate § 3C1.1’s prohibition against punishing a defendant for exercising a constitutional right. A defendant has no constitutional right to commit perjury. U.S. v. Rehal, 940 F.2d 1 (1st Cir. 1991).

1st Circuit upholds guidelines against due process challenge. (755) Defendants argued that the sentencing guidelines violate due process by permitting the sentencing court to consider evidence not established beyond a reasonable doubt. The 1st Circuit rejected this claim, finding that due process only requires defendants be given a reasonable opportunity to rebut disputed facts. Defendants also argued that the district court applied the guidelines too mechanically and did not take adequate account of their individual circumstances. The 1st Circuit rejected this argument as well, finding that the guidelines impose no unconstitutional constraint on individualized sentencing, given the broad range of variables cognizable by the sentencing court and the court’s discretion to depart in appropriate circumstances. U.S. v. Sanchez, 917 F.2d 607 (1st Cir. 1990).

1st Circuit holds that due process does not require a particular standard for factual determinations at sentencing. (755) Defendant argued that the sentencing guidelines violate due process because they allow the district court to rely on facts not proven beyond reasonable doubt when imposing sentence. The 8th Circuit disagreed, holding that due process does not require a particular standard of proof for factual determinations at sentencing hearings. The court noted that in U.S. v. Gooden, 892 F.2d 725, 728 (8th Cir., 1989) it held facts may be proved by a preponderance of the evidence. Since the District Court in the instant case found the facts relied on at sentencing were proved by clear and convincing evidence, the sentence was proper. U.S. v. Luster, 896 F.2d 1122 (8th Cir. 1990).

1st Circuit holds preponderance of evidence standard governs sentencing hearings. (755) The 1st Circuit ruled that the due process clause is satisfied by the use of the preponderance of the evidence standard at sentencing hearings. That standard was easily met in this case. U.S. v. Wright, 873 F.2d 437 (1st Cir. 1989).

2nd Circuit says § 2X1.1(a) cross-reference must be based on “reasonable certainty.” (755) Defendants were convicted of a variety of firearms trafficking charges, including engaging in a domestic firearms trafficking conspiracy. Section 2X1.1(a) states that where a conspiracy is not covered by a specific offense guideline, the base level is the “base offense level from the guidelines for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” The district court looked to § 2K2.1(a)(4)(B) to set the base offense level at 20 because the offense involved a machine gun and was committed while defendant was an illegal alien. However, the Second Circuit ruled that it was improper to use the preponderance of the evidence standard to make factual findings for two offense level increases – one for a conspiracy involving more than 200 weapons (§ 2K2.1(b)(1) (E)) and the other for a conspiracy involving a destructive device (§ 2K2.1(b)(3)(A)). The offense level adjustments in § 2K2.1(b) do not mention a conspiracy. Therefore, the district court should have reverted to the “reasonable certainty” standard described in § 2X1.1(a) when it applied the two offense level increases. U.S. v. Nadirashvili, 655 F.3d 114 (2d Cir. 2011).

2nd Circuit holds that objects of conspiracy need not be identified in indictment as objects. (755) Defendant was convicted of conspiracy to commit Hobbs Act robberies of drug dealers in New York, and acquitted of several substantive robbery counts. Notwithstanding the jury’s acquittal on the substantive charges, the district court found for sentencing purposes that the government had proven beyond a reasonable doubt that defendant had conspired to commit two of the robberies. Citing Note 4 to § 1B1.2, defendant argued that the court could not consider the robberies as objects of the conspiracy because the robberies were not identified as objects in the conspiracy count of the indictment. The Second Circuit disagreed. Note 4, which refers to using an object offense alleged in the conspiracy count, does not require the object offense to be alleged in the conspiracy count. Instead, it emphasizes the standard of proof that must be satisfied to permit a court to find that defendant conspired to commit a particular object offense. The judge found beyond a reasonable doubt that defendant had specifically conspired to commit the robberies in question. U.S. v. Robles, 562 F.3d 451 (2d Cir. 2009).

2nd Circuit uses predicate racketeering conspiracy acts as relevant conduct without proof beyond a reasonable doubt. (755) Defendant, an alleged member of the Gambino Crime Family, was convicted after trial of a RICO conspiracy. Although the indictment charged four separate predicate acts, the jury found unproven all of the charged racketeering acts except for loan sharking. The district court nonetheless found, for relevant conduct purposes, that defendant was involved in an attempted murder and kidnapping. The Second Circuit held that the district court properly considered the acquitted conduct at sentencing. A sentencing court may consider predicate acts as relevant conduct because their commission need not be proven beyond a reasonable doubt. The district court was in the unique position to consider the credibility of the witnesses and to conclude that two of the government’s witnesses had been particularly credible in their testimony about defendant’s participation in the kidnapping. U.S. v. Yannotti, 541 F.3d 112 (2d Cir. 2008).

2nd Circuit holds Booker did not affect standard of proof for guideline calculations. (755) During a resentencing hearing under U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), the judge reviewed the § 3553(a) factors, and then stated that she was “constrained” to apply a preponderance of the evidence standard in determining, for guideline purposes, whether defendant had a leadership role in the conspiracy, and if the previously imposed sentence was proper under Crosby. Defendant argued that the court erred as a matter of law in failing to recognize that, post-Booker, while entitled to apply a preponderance standard, the sentencing court had the discretion, if it so chose, to apply a more stringent standard, including proof beyond a reasonable doubt. The Second Circuit disagreed. The discretion given judges by Booker applies only to their consideration of a guidelines range as one of the § 3553(a) factors after that range has been calculated. Booker does not affect a district judge’s obligation to perform a guidelines calculation or the burden of proof applicable to facts relevant to sentencing upon which that guideline calculation is made. U.S. v. Salazar, 489 F.3d 555 (2d Cir. 2007).

2nd Circuit says challenge to standard of proof did not present substantial issue as required for COA. (755) Defendant moved for a certificate of appealability to appeal the denial of his § 2255 motion to vacate his drug sentence based on the court’s use of relevant conduct. The court’s consideration of relevant conduct resulted in a sentence almost double the top of the otherwise applicable sentencing range. Defendant argued that the severity of the increase warranted a standard of proof more rigorous than a preponderance of the evidence. The Second Circuit ruled that the contention did not present a substantial issue on collateral attack because defendant challenged the sentencing judge’s fact-finding on direct review, and the appellate court rejected that challenge. Beatty v. U.S., 293 F.3d 627 (2d Cir. 2002).

2nd Circuit reverses for failing to find perjury by clear and convincing evidence. (755) At sentencing, the district court applied a § 3C1.1 enhancement for committing perjury at trial. The Second Circuit reversed since the court did not determine whether defendant committed perjury by clear and convincing evidence. The court stated that it would not have concluded beyond a reasonable doubt that defendant committed perjury, but that on a preponderance standard, it would. However, trial perjury must be found by clear and convincing evidence to justify the obstruction of justice enhancement. [Ed. Note: Application Note 1 to § 3C1.1 was amended on November 1, 1997, so that it no longer suggests the use of a heightened standard of proof. Instead, it clarifies that the court should be mindful that not all inaccurate testimony or statements reflect a willful attempt to obstruct justice.] U.S. v. Gabriel, 125 F.3d 89 (2d Cir. 1997), overruling on other grounds recognized by U.S. v. Quattrone, 441 F.3d 153 (2d Cir. 2006).

2nd Circuit holds that government preserved claim by arguing issue at sentencing. (755) Defendant pled guilty to bank fraud. The government challenged on appeal the court’s failure to apply certain enhancements. Defendant argued that the government waived these claims by failing to object to the district court’s ruling at sentencing. The Second Circuit held that the government preserved its claims by arguing the issues at sentencing prior to the court’s disputed rulings. U.S. v. Shumard, 120 F.3d 339 (2d Cir. 1997).

2nd Circuit rules court applied proper standard in finding defendant committed perjury. (755) The district court applied an obstruction of justice enhancement based on defendant’s perjury at trial. The Second Circuit held that the district court applied the correct standard of proof in finding that defendant had committed perjury at trial. The court outlined defendant’s testimony at trial and said the statements were false, were material, and were repeated frequently so they could not be the product of confusion or inadvertence. Thus, they were willful. A court is not required to recite any magic words to assure that it has applied the appropriate standard. Even though the judge did not explicitly identify the standard of proof by which he found defendant had committed perjury, there was no doubt that the judge’s finding passed the clear and convincing standard. U.S. v. Walsh, 119 F.3d 115 (2d Cir. 1997).

2nd Circuit holds defendant had burden of proving lifetime parole was discharged. (755) The district court added two criminal history points under § 4A1.1(d) for committing the instant offense while on lifetime parole. Defendant argued that although he had been placed on lifetime parole in New York, his parole was transferred to Nevada, and he was discharged from parole in Nevada. The Second Circuit upheld the criminal history points since defendant did not present any evidence of his parole discharge. Once the government established that defendant had been placed on lifetime parole, it was defendant’s burden to prove that he had been discharged from parole. U.S. v. O’Neil, 118 F.3d 65 (2d Cir. 1997).

2nd Circuit rules relevant conduct need only be proven by a preponderance. (755) Defendants pled guilty to racketeering charges. The district court took into account as relevant conduct three additional kidnappings. Defendants argued that the relevant conduct should have been proved by a higher standard than a preponderance of the evidence. The Second Circuit held that the clear and convincing standard was not required. First, the Second Circuit has never adopted U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which requires use of the clear and convincing standard where the relevant conduct is “a tail which wags the dog of the substantive offense.” Moreover, the facts here were markedly different the 12‑fold, 330‑month increase in Kikumura. The relevant conduct here raised one defendant’s offense level from 25 to 33 and the corresponding range from 57-71 to 135-168 months. The second defendant’s offense level was raised from 25 to 33, with the corresponding range raised from 63-78 months to 151-188 months. The preponderance standard is sufficient for such an increase. Note 5 to § 1B1.2(d) does not require relevant conduct be proven beyond a reasonable doubt. U.S. v. Ruggiero, 100 F.3d 284 (2d Cir. 1996).

2nd Circuit authorizes downward departure if adjustments are proved by bare preponderance. (755) Defendants argued that an upward departure based in part on acquitted conduct violated due process. In rejecting the argument, the Second Circuit held that in making upward adjustments based on relevant conduct, the court may examine whether the conduct underlying multiple upward adjustments was proven by a standard greater than a preponderance of the evidence. Where a higher standard is not met, the court should depart downward. The risk of factual error in a series of adjustments, each of which involves conduct proven by a bare preponderance, is a circumstance not adequately contemplated by the Sentencing Commission and thus warrants a downward departure. Here, there were no such concerns. The district court found that the evidence of the acquitted conduct was “compelling.” U.S. v. Gigante, 94 F.3d 53 (2d Cir. 1996).

2nd Circuit says court may consider weight of evidence in departing upward. (755) Defendants were convicted of extortion charges. Their base offense levels would have resulted in sentences of 27-33 months. However, after upward adjustments and upward departures, many based on uncharged or acquitted conduct, one defendant received a 188-month sentence, the other a 200-month sentence. The 2nd Circuit reaffirmed that unconvicted conduct proven by a preponderance of the evidence may be relied upon to adjust a defendant’s sentence. However, there should be some “rough proportionality” between the weight of the evidence of the uncharged conduct and the degree of adjustment or departure. Thus, an appellate court should take the weight of the evidence into account in reviewing the reasonableness of a departure. Here, the judge found that the evidence establishing defendants’ involvement in an uncharged murder conspiracy was compelling. Given this, the substantial upward departure was reasonable. In addition, the adjustments were based on overwhelming evidence. U.S. v. Gigante, 94 F.3d 53 (2nd Cir. 1994).

2nd Circuit holds government must prove intent to produce negotiated quantity. (755) Defendant argued that the district court erred in finding that he intended to import 50-60 kilograms of heroin from Nigeria, without considering his ability to produce such amounts. The 2nd Circuit held that where the government asserts that a defendant negotiated to produce a contested amount, the government bears the burden of proving the defendant’s intent to produce such an amount, “a task necessarily informed, although not determined,” by the defendant’s ability to produce the alleged amount. U.S. v. Hendrickson, 26 F.3d 321 (2nd Cir. 1994).

2nd Circuit finds no requirement for jury to find conduct continued after guidelines’ effective date. (755) Defendant was convicted of RICO, CCE and drug conspiracy offenses and sentenced to a mandatory life term under the guidelines. In a 28 U.S.C. § 2255 motion, he argued that the district court erred in sentencing him under the guidelines because the jury made no specific finding that his conduct had continued beyond the effective date of the guidelines. The 2nd Circuit upheld the denial of relief. This claim had been rejected on direct appeal, and could not be relitigated. Moreover, there is no requirement that the jury must find that the conduct occurred after the effective date of the guidelines before a defendant can be sentenced under the guidelines. The case cited by defendant dealt with a substantive criminal statute, rather than the guidelines. A sentencing factor may be found by the sentencing court by a preponderance of the evidence. Underwood v. U.S., 15 F.3d 16 (2nd Cir. 1993).

2nd Circuit declines to decide whether large increase required more than preponderance of evidence. (755) Several of the firearms guidelines (e.g. sections 2K2.1 and 2K2.2) provide that if the firearm was used in connection with another offense, a court is to apply the guideline for such offense if it would result in a higher offense level. Because the district court found that defendant had used his firearms in connection with a narcotics conspiracy, defendant’s offense level was tripled (from 12 to 36) and his guideline range was increased from 12-18 months to 210-262 months. The 2nd Circuit declined to determine whether the magnitude of the increase required a higher standard of proof than a preponderance of the evidence, since the district court found that the government established defendant’s use of the guns in connection with the conspiracy by clear and convincing proof. U.S. v. Concepcion, 983 F.2d 369 (2nd Cir. 1992).

2nd Circuit holds that obstruction of justice has stricter standard than preponderance. (755) The district court imposed an enhancement for obstruction of justice based on its earlier finding that defendant had testified untruthfully at a suppression hearing. The 2nd Circuit remanded for resentencing, ruling that a district court cannot automatically impose an obstruction enhancement whenever a defendant’s testimony has been rejected by a judge or jury. Application note 1 to section 3C1.1 has been interpreted as instructing the sentencing judge to resolve in favor of the defendant those conflicts about which the judge has no firm conviction. This standard is more favorable to the defendant than the preponderance of the evidence standard. If the district court must apply a more rigorous standard in evaluating a defendant’s testimony for sentencing purposes, then the court may not automatically impose an obstruction enhancement whenever a defendant’s testimony has been rejected by a judge or jury. The district court must make an independent finding, applying the standard prescribed by section 3C1.1. U.S. v. Cunavelis, 969 F.2d 1419 (2nd Cir. 1992).

2nd Circuit affirms that judge, not jury, determines drug quantity for purposes of mandatory minimum sentence. (755) The 2nd Circuit upheld the application of the enhanced sentencing provisions of 21 U.S.C. section 841(b) based upon the district court’s determination that in excess of 100 kilograms of marijuana were involved in his offense. No specific jury finding as to drug quantity is necessary in order to apply the enhanced sentencing provisions of section 841(b). The district judge, rather than the jury must determine pursuant to section 2D1.4 the quantities involved in narcotics offenses. At sentencing, the amount of a controlled substance need only be proven by a preponderance of the evidence, and the district court’s assessment of drug quantity is subject only to a “clearly erroneous” standard of review. U.S. v. Moore, 968 F.2d 216 (2nd Cir. 1992).

2nd Circuit says defendant has the burden of proving lack of knowledge or foreseeability. (755) A defendant who is a member of a drug conspiracy may be held responsible for all transactions which were either known or reasonably foreseeable to him. The 2nd Circuit noted that the guidelines place on the defendant the burden of establishing the lack of knowledge and lack of foreseeability. U.S. v. Negron, 967 F.2d 68 (2nd Cir. 1992).

2nd Circuit says defendant has burden of proving that prior crimes are related. (755) Defendant was classified as a career offender based on two prior gas station holdups which were committed within 15 minutes of each other. The district court rejected defendant’s claim that the offenses were related, and the 2nd Circuit affirmed. The court observed that the government has the burden of showing that the defendant has at least two prior convictions for the specified crimes. But, if there is question as to whether those crimes were committed pursuant to a single common scheme or plan, the burden is on defendant to show (a) the existence of such a scheme or plan, and (b) the connection between the acts and the plan. The court also rejected defendant’s contention that temporal proximity alone sufficed to show a common scheme. The mere goal of obtaining money cannot be the type of scheme or plan that permits a defendant to escape career offender status. U.S. v. Butler, 970 F.2d 1017 (2nd Cir. 1992).

2nd Circuit denies acceptance of responsibility reduction to defendant who denied involvement in larger transaction. (755) Prior to sentencing, defendant acknowledged that he travelled to New York to assist in a transaction involving one kilogram of cocaine. However, he denied involvement in the 50-kilogram transaction. He argued that since proof of his involvement in the larger transaction was “not overwhelming,” his refusal to acknowledge his participation in the larger transaction should not be used to deny him a reduction for acceptance of responsibility. The 2nd Circuit found the argument frivolous, since the standard of proof at sentencing is a preponderance of the evidence, not “overwhelming.” U.S. v. Lopez, 937 F.2d 716 (2nd Cir. 1991).

2nd Circuit holds jury need not determine whether offense continued past effective date of guidelines. (755) The sentencing guidelines mandated a sentence of life without the possibility of parole for defendant’s continuing criminal enterprise conviction, but pre-guidelines law would have allowed the district court discretion to impose a prison term of 10 years to life. Because of the disparate sentences, defendant contended that in the absence of a specific jury determination that his offenses continued past the effective date of the guidelines, he must be sentenced under pre-guidelines law. The 2nd Circuit rejected this argument, holding that the determination of whether defendant’s offense continued past the effective date of the guidelines is a sentencing factor, and may be resolved by the district court using the preponderance of the evidence standard. The court also rejected defendant’s contention that a remand was necessary so that the district court could reconsider this issue in light of a subsequently discovered statement by a co-conspirator denying any dealing in narcotics after 1986. This statement was contradicted by substantial evidence presented at defendant’s trial and by the co-conspirator’s own subsequent testimony at the trial of others involved in defendant’s scheme. U.S. v. Underwood, 932 F.2d 1049 (2nd Cir. 1991).

2nd Circuit rejects higher burden of proof at sentencing for conspiracy despite recent guideline amendments. (755) Defendant argued that the district court should have applied a higher standard than preponderance of the evidence in determining the object of an uncompleted conspiracy. The 2nd Circuit rejected this contention. A recent amendment to the guidelines applying the higher reasonable doubt standard is applicable only to a special class of conspiracy cases. Under guideline § 1B1.2(d), a conviction of conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense. An application note states that this guideline section should apply, with respect to an object offense, only if the court, as trier of fact, would convict defendant of conspiring to commit that offense. A higher standard of proof applies because this guideline creates, in effect, a new count of conviction for sentencing purposes. No such situation was presented here. U.S. v. Macklin, 927 F.2d 1272 (2nd Cir. 1991).

2nd Circuit determines that guidelines did not change procedure by which district court resolves disputed facts. (755) Defendant contested the presentence report’s reliance on hearsay evidence, and argued that a sentencing court should hold a “full-blown” evidentiary hearing when a presentence report relies on hearsay to set a defendant’s base offense level. The 2nd Circuit found that the sentencing guidelines did not change the law regarding the procedure by which the district court resolves disputed sentencing factors. Thus, the burden of proof at a sentencing hearing to determine a base offense level is by a preponderance of the evidence, and the sentencing court is under no duty to conduct a full evidentiary hearing simply because contested hearsay testimony is contained in a presentence report. U.S. v. Prescott, 920 F.2d 139 (2nd Cir. 1990).

2nd Circuit holds that preponderance standard applies at sentencing. (755) Defendant argued the district court should have used the “beyond-a-reasonable-doubt” standard in determining whether he had attempted to obstruct justice. The Second Circuit disagreed, holding that with respect to questions of fact, a sentencing court may use the preponderance of evidence standard. However, once the facts are established, the question of whether they are sufficient to constitute an attempt is a matter of law reviewed de novo. U.S. v. Shoulberg, 895 F.2d 882 (2nd Cir. 1990).

2nd Circuit upholds “preponderance of evidence” standard in calculating offense levels. (755) The 2nd Circuit ruled that the preponderance of the evidence standard governs in determining whether a resultant death justifies an upward departure and in determining relevant conduct for purposes of calculating offense levels. The burden cannot be met by evidence that is “speculative, unsupported and unreliable.” In this case there was sufficient circumstantial evidence to connect defendants with a death but the case was remanded for explicit findings as to whether defendant’s criminal activity caused the death. U.S. v. Rivalta, 892 F.2d 223 (2nd Cir. 1989).

2nd Circuit holds relevant conduct need only be proven by a preponderance of the evidence. (755) The 2nd Circuit held that the preponderance of the evidence standard satisfies the requisite due process in determining relevant conduct under § 1B1.3 of the guidelines. To impose a higher standard would turn sentencing hearings into “second trials.” Due process is satisfied by affording the defendant the opportunity to contest the factors relied upon by the sentencing court. U.S. v. Guerra, 888 F.2d 247 (2nd Cir. 1989).

3rd Circuit says life sentence for continuing criminal enterprise is enhancement, not a separate crime. (755) Defendant pled guilty to engaging in a “continuing criminal enterprise,” in violation of 21 U.S.C. § 848(c). Subsection (a) provides for a sentence of 20 years to life, and for defendants with a prior conviction under this subsection, a sentence of 30 years to life. However, § 848(b) provides for a mandatory term of life imprisonment if the defendant is a principal administrator or leader of the enterprise and the offense involved specified quantities of controlled substances. After reviewing the title, text, and structure of the statute, and its legislative history, the Third Circuit held that § 848(b) is a sentencing enhancement, not a separate crime. Thus, the government did not have to charge defendant with violating subsection (b), and the conduct proscribed by subsection (b) only needed to be established by a preponderance of the evidence. U.S. v. Tidwell, 521 F.3d 236 (3d Cir. 2008).

3rd Circuit says erroneous use of “reasonable doubt” standard made sentence unreasonable. (755) Defendants were convicted of fraud. At sentencing, the judge found that loss amounts should be based on proof beyond a reasonable doubt. The Third Circuit reversed. Post-Booker, a court must continue to calculate a defendant’s guideline sentence in the same way it would have before Booker. The standard of proof under the guidelines for sentencing facts continues to be a preponderance of the evidence. The court here erred in calculating the sentencing range according to its assessment of the amount provided beyond a reasonable doubt. The judge also failed to specify even a reasonable estimate of the loss amount for each defendant. These mistakes made the resulting sentence unreasonable. U.S. v. Ali, 508 F.3d 136 (3d Cir. 2007).

3rd Circuit rules Kikumura is no longer good law in light of Booker. (755) Although courts have generally upheld the use of the preponderance of the evidence standard under Sentencing Guidelines, in U.S. v. Kikumura, 918 F.3d 1084 (3d Cir. 1990), the Third Circuit held that when the enhancements are so substantial as to constitute “the tail that wags the dog” of the defendant’s sentence, the facts underlying those enhancements must be established by clear and convincing evidence. Here, the Third Circuit held that Kikumura was no longer good law in light of Booker. The application of Kikumura went “hand-in-hand” with the then-mandatory force of the guidelines. Under an advisory system, facts relevant to enhancements under the guidelines no longer increase the maximum punishment to which the defendant is exposed, but simply inform the judge’s discretion as to the proper sentence. Accordingly, sentencing judges are free to find facts by a preponderance of the evidence, provided that the sentence actually imposed is within the statutory range, and is reasonable. Thus, although concerns about the “tail wagging the dog” were valid under the mandatory guidelines system, these concerns were put to rest when Booker rendered the guidelines advisory. U.S. v. Fisher, 502 F.3d 293 (3d Cir. 2007).

3rd Circuit, en banc, holds that preponderance of the evidence standard applies to determining facts relevant to sentencing. (755) In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court held that facts relevant to the advisory Sentencing Guidelines need not be submitted to a jury. Here, the Third Circuit, en banc, held that these facts do not require proof beyond a reasonable doubt. The facts constituting the elements of a crime are those that increase the maximum punishment to which the defendant is exposed. It is only those facts that the rights to a jury trial and proof beyond a reasonable doubt attach. The en banc court upheld the district court’s decision to apply the preponderance standard to all facts relevant to the guidelines. The appellate courts will then review those findings of fact for clear error. It will exercise plenary review over a district court’s interpretation of the guidelines. U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).

3rd Circuit holds increase in sentence under ACCA did not require heightened standard of proof. (755) The application of the ACCA increased defendant’s offense level from 33 to 34, his criminal history category from IV to V, and his guideline range from 188-235 months to a range of 262-327 months. Relying on U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), defendant argued that the ACCA enhancement was so substantial that it required the district court to find by clear and convincing evidence (rather than by a mere preponderance) that he used the gun in a shooting. The Third Circuit disagreed. The application of § 4B1.4 on account of defendant’s firearm use resulted in an 83 month, or about 39%, increase in the median sentence of the guideline range. Defendant’s actual sentence of 262 months was just 27 months, or about 12%, longer than the maximum guideline sentence absent the enhancement. Even assuming Kikumura applied in contexts other than upward departures, the increase in defendant’s sentence did not approach the 300-month, 12-fold increase in Kikumura. U.S. v. Mack, 229 F.3d 226 (3d Cir. 2000).

3rd Circuit finds clear and convincing evidence of extreme conduct. (755) Defendant pled guilty to second-degree murder for stabbing his wife to death as she emerged from the shower. The district court made a nine-level upward departure under § 5K2.8 for extreme conduct. Defendant argued that the district court erred by not articulating and applying a clear and convincing standard of proof to support such a large departure, as required by U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). The Third Circuit held that incantation of the term “clear and convincing” by the district court was not necessary on this record — the unchallenged evidence provided clear and convincing proof of extreme conduct. Defendant admitted that he killed his wife. He did not dispute the extensive and gory evidence concerning the killing, including the expert pathologist’s extensive and uncontradicted testimony about the 16 stab wounds, the eight to nine penetrations of the heart area, and the 11 incisive wounds that defendant inflicted on his wife. U.S. v. Paster, 173 F.3d 206 (3d Cir. 1999).

3rd Circuit upholds departure based on prior similar sexual assault. (755) Defendant kidnapped a woman and sexually assaulted her over a period of days. Based on note 7 to § 2A3.1, the district court departed upward because defendant’s criminal history included a prior sentence for similar conduct—a 1983 state conviction for sexually assaulting a jogger at knifepoint. The Third Circuit held that defendant waived any challenge to this departure by admitting at sentencing that the commentary was applicable to him. Moreover, even if defendant properly preserved this argument, the departure was proper. His prior conviction for a similar offense involving sexual abuse was an “encouraged factor” for departure. This factor was not adequately considered in his criminal history because there is a qualitative difference between a conviction for any offense resulting in a term of imprisonment of more than one year, and a conviction for a prior sexual assault. U.S. v. Ward, 131 F.3d 335 (3d Cir. 1997).

3rd Circuit requires clear and convincing evidence of defendant’s perjury. (755) Defendant attempted to hire an undercover FBI agent to kill a woman. At trial, defendant raised an entrapment defense, testifying that the agent made threatening gestures toward him during a recorded conversation and that therefore defendant’s request to kill his former fiancee was involuntary. The district court enhanced his offense level under § 3C1.1 for perjury. Application note 1 instructs a court to evaluate a defendant’s testimony in the light most favorable to the defendant. The Third Circuit held that the application note requires a court to apply a standard of proof higher than a mere preponderance of the evidence. Under Dunnigan, to base an obstruction enhancement upon a defendant’s perjury, the court must use the clear and convincing standard, place the burden of proof on the government, and support its decision with the findings required by U.S. v. Arnold, 106 F.3d 37 (3d Cir. 1997), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162 (2001).

3rd Circuit rejects challenge to standard of proof where defendants destroyed pertinent data. (755) Defendants argued that because of the large increase in sentence triggered by the large amount of loss, the clear and convincing standard of U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990) should have been applied rather than the preponderance of the evidence standard. The 3rd Circuit rejected the argument. Much of the difficulty in determining the loss in the fraud and tax counts was caused by defendants’ mass destruction of company records. It was “poor grace” for the defendants to assert a lack of convincing evidence. The government submitted extremely detailed affidavits from Department of Labor and IRS agents describing information from many witnesses and an analysis of the remaining records of the company. Defense counsel chose not to cross-examine the agents, preferring instead to submit counter-affidavits. ), superseded by guideline on other grounds as state in U.S. v. Corrado, 53 F.3d 620 (3d cir. 1995).

3rd Circuit finds 50-fold fine departure unsupported by clear and convincing evidence. (755) The district court departed upward from a guideline maximum fine of $125,000 to a fine of $7 million. The court determined that this was the amount necessary to disgorge defendant of illegal profits he kept hidden in foreign bank accounts. The 3rd Circuit held that this departure, by a factor in excess of 50, had to be supported by clear and convincing evidence. The court’s findings were not supported by the record, and therefore were clearly erroneous. Defendant and two co-conspirators did transfer millions of illegally gained profits to a foreign country. However, there was no evidence that defendant received control of the entire money. The district court assumed that defendant had control over the funds from the fact that the government obtained payments of less than $800,000 from defendant’s co-conspirators. This assumption could not withstand scrutiny under the clear and convincing evidence standard. U.S. v. Bertoli, 40 F.3d 1384 (3rd Cir. 1994).

3rd Circuit outlines burden of proof and persuasion in uncompleted distribution. (755) Note 12 to § 2D1.1 provides that in an uncompleted distribution, a court shall exclude the weight of drugs “the defendant did not intend to produce and was not reasonably capable of producing.” The 3rd Circuit outlined the burden of proof and persuasion in establishing the quantity of drugs for which a defendant is responsible in an uncompleted distribution. Once the government makes its prima facie showing that a particular amount of drugs was negotiated, defendant must come forward with evidence that he lacked both the intent and capability to produce the negotiated quantity. The ultimate burden of persuasion does not shift to defendant, but remains with the government. Thus, if a defendant introduces new evidence or casts the government’s evidence in a different light, the government must then prove either that the defendant intended to produce the negotiated amounts of drugs or that he or she was reasonably capable of doing so. For a defendant to be sentenced on a lesser amount, the sentencing court must find both lack of intent and lack of reasonable capability. U.S. v. Raven, 39 F.3d 428 (3rd Cir. 1994).

3rd Circuit requires clear and convincing evidence for seven-fold fine departure. (755) Defendants each had a guideline fine range of $25,000 to $250,000. To ensure that defendants did not profit from the sale of the story of their crime, the district court departed upward to a fine of $1.75 million for one defendant and $500,000 for the other. The 3rd Circuit reversed both departures. The seven-fold, $1.5 million departure for the first defendant was sufficiently extreme to require a clear and convincing standard of proof. That standard was not met here. The letter the government submitted in support of the departure contained only “hypothetical” figures proffered by a person who had no knowledge of the offers being considered. There was no basis for the district court’s conclusion that defendant might not employ a collaborator (who would share in his profits) and might even earn more money than the agent hypothesized. The facts supporting the other departure were even less compelling. Thus, although proof by clear and convincing evidence was not required for the two-fold departure, the evidence did not meet this standard. U.S. v. Seale, 20 F.3d 1279 (3d Cir. 1994).

3rd Circuit holds that judge was not bound by jury’s determination of drug quantity. (755) The district court decided that the weight of the cocaine involved was an element of the substantive offense and was therefore a jury question. The jury determined that more than five kilograms was involved in defendant’s conspiracy. The 3rd Circuit ruled that the district judge committed error by considering itself bound at sentencing by the jury’s findings. The weight of the drugs involved is a sentencing issue that must be decided by the judge rather than the jury. U.S. v. Chapple, 985 F.2d 729 (3rd Cir. 1993).

3rd Circuit refuses to reconsider issues decided in first appeal. (755) In U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990) (Kikumura I), the 3rd Circuit held that (1) factual findings supporting an extreme departure must be proven by at least clear and convincing evidence, and (2) hearsay statements cannot be considered at sentencing unless other evidence demonstrates that they are reasonably trustworthy. The court assumed without deciding that the clear and convincing standard was sufficient because defendant did not ask for a higher standard of proof. In defendant’s second appeal, the 3rd Circuit refused to reconsider these issues. Defendant could not “continue to litigate questions already decided by this court in a prior proceeding.” The court’s observation in Kikumura I that it might require a more demanding standard of proof “at some later date” was not an invitation to bring a second appeal. Similarly, the court refused to consider defendant’s claim that hearsay may only be admitted if it satisfies the Confrontation Clause. This argument was rejected in Kikumura I, and was precluded by the law of the case. U.S. v. Kikumura, 947 F.2d 72 (3rd Cir. 1991).

3rd Circuit holds preponderance of evidence standard governs sentencing hearings and party asserting right to adjustment bears burden. (755) The 3rd Circuit held that the burden of proof for determining whether the facts support an offense level adjustment is a “preponderance of the evidence.” The government bears the burden of proving that an upward adjustment is warranted. Conversely, a defendant bears the burden of establishing that a downward adjustment is warranted. U.S. v. McDowell, 888 F.2d 285 (3rd Cir. 1989).

4th Circuit says defendant waived challenge to use of drug buyer’s estimate of drug quantity. (755) Defendant pled guilty to crack cocaine charges. The probation officer concluded that defendant sold far more crack than the six sales police officers recorded. The probation officer relied on statements by Battle, who claimed to have purchased drugs from defendant from 2000 through 2008. The probation officer estimated that defendant sold Battle 1.43 kilograms of crack cocaine during this time period. Defendant challenged the district court’s reliance on Battle’s statement, insisting that Battle was “blatantly lying” to curry favor with prosecutors. The district court gave defendant the opportunity to delay sentencing to allow the parties more time to obtain more information, but defendant chose to proceed. The Fourth Circuit held that defendant waived his objection to the district court’s reliance on Battle’s statement in the PSR. Defendant made the conscious choice at sentencing to proceed on the basis of the information contained in the PSR, including Battle’s statement. U.S. v. Robinson, 744 F.3d 273 (4th Cir. 2014).

4th Circuit says upward departure for uncharged conduct does not violate 5th or 6th Amendments. (755) Defendant pled guilty to multiple counts relating to his transportation and molestation of a minor. Based on information in the PSR about nine additional victims, the district court departed upward from a range of 151-188 months to a sentence of 240 months. The Fourth Circuit rejected defendant’s argument that the use of uncharged conduct violated the Sixth Amendment. Defendant’s argument was nullified by clear Supreme Court and Fourth Circuit precedent holding that a sentencing court may consider uncharged and acquitted conduct in determining a sentence, as long as that conduct is proven by a preponderance of the evidence. See U.S. v. Watts, 519 U.S. 148 (1997); U.S. v. Jones, 31 F.3d 1304 (4th Cir. 1994). Booker did not change the sentencing court’s ability to consider uncharged or even acquitted conduct during sentencing. The panel also held that the district court was not required to apply a heightened standard of proof as to the uncharged conduct used as the basis for enhancing defendant’s sentence. Preponderance of the evidence is the appropriate standard of proof for sentencing purposes. U.S. v. Grubbs, 585 F.3d 793 (4th Cir. 2009).

4th Circuit allows firearm enhancement despite acquittal on firearms count. (755) Defendants were convicted of drug conspiracy charges, but the judge granted a judgment of acquittal on a firearms conspiracy charge. They argued that the acquittal foreclosed the judge from finding as a sentencing fact that they had possessed a firearm in connection with the crack conspiracy. The Fourth Circuit disagreed. Due to the different standards of proof applicable to trials and sentencing proceedings, an acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proven by a preponderance of the evidence. At sentencing, the court was entitled to consider evidence relating to firearms possession, and the prosecution was only required to prove any such possession by a preponderance of the evidence. U.S. v. Brooks, 524 F.3d 549 (4th Cir. 2008).

4th Circuit holds that defendant preserved claim of statutory Booker error by raising timely Blakely objection at sentencing. (755) Treating the guidelines as mandatory, the court sentenced defendant at the bottom of his 46-57 month sentencing range. The Fourth Circuit ruled that defendant properly preserved his claim of statutory Booker error by raising a timely Blakely objection at sentencing. Therefore, it would review his preserved claim of statutory Booker error for harmless error. Under this standard, defendant was entitled to be resentenced. Although the court offered no indication of whether it might have imposed a different sentence had it considered the § 3553(a) factors under an advisory guidelines regime, because defendant preserved his claim of Booker error, the prejudice burden fell on the government. The sentencing court’s silence had to be interpreted in favor of defendant. U.S. v. Rodriguez, 433 F.3d 411 (4th Cir. 2006).

4th Circuit finds court used appropriate standard to deny acceptance of responsibility reduction. (755) Defendants argued that the district court used an incorrect standard of proof in ruling on their request for a § 3E1.1 reduction. The Fourth Circuit disagreed, ruling that the judge’s statement that he must find “some evidence” on which to base his finding did not show an erroneous understanding of the preponderance of the evidence standard. The judge’s statement regarding discretion also did not show a misunderstanding, but showed the judge’s recognition of his discretion in determining whether factors existed to support a § 3E1.1 reduction. The court properly denied the reduction, even though both defendants admitted their involvement in the assault and kidnapping within 48 hours of arrest, and one defendant assisted police in locating his co-defendant and finding evidence related to the crime. After the crime, defendants deserted the victim in the woods, and one defendant attempted to use the victim’s ATM card at several banks. Moreover, defendants denied trying to kill the victim despite evidence to the contrary. U.S. v. Myers, 66 F.3d 1364 (4th Cir. 1995).

4th Circuit says number of marijuana plants need only be proved by preponderance of the evidence. (755) Defendant was convicted of a number of drug-related charges, including manufacturing marijuana. He argued that the government must prove the number of marijuana plants beyond a reasonable doubt. The Fourth Circuit held that the government need only prove drug quantity by a preponderance of the evidence. The quantity of plants is a statutory sentencing factor rather than a substantive element of the offense. The court declined to determine whether the one plant/one kilogram ratio in § 2D1.1(c) should be applied to harvested plants, since over 3000 live plants were seized from the fields. Thus, even if the harvested plants were excluded, defendant would be responsible for over 3000 kilograms. U.S. v. Heater, 63 F.3d 311 (4th Cir. 1995).

4th Circuit reaffirms that drug quantity is not an element of the offense. (755) Defendant argued that it was unconstitutional for the sentencing judge to determine the quantity of crack in his possession as a sentencing enhancement, under the preponderance of the evidence standard, rather than by a jury as an element of the offense, by proof beyond a reasonable doubt. The 4th Circuit noted that it has “repeatedly and squarely rejected such arguments.” U.S. v. Parker, 30 F.3d 542 (4th Cir. 1994).

4th Circuit affirms upward departure for murder related to defendant’s drug crime. (755) Defendant was convicted of drug crimes. The district court departed upward based on evidence that defendant had killed a government informant to protect his drug business. On appeal, the 4th Circuit affirmed. First, there was ample testimony at sentencing to support the finding that defendant killed the informant. Second, it was not improper to base a departure on a crime for which defendant had not been convicted. The death was related to defendant’s drug business and was therefore relevant conduct for sentencing purposes. Proof beyond a reasonable doubt was not required. Third, the informant’s murder was an aggravating factor not identified in the guidelines. Section 5K2.1 provides that if an offense resulted in death, an upward departure may be warranted. Finally, the extent of the departure, from a range of 70-87 to a sentence of 240 months, was not unreasonable. The court analogized to section 2D1.1(a)(2) (applicable where death results from drug use), section 2A1.1 (applicable to 1st degree murder) and the federal death penalty statute. U.S. v. Melton, 970 F.2d 1328 (4th Cir. 1992).

4th Circuit determines that amount of drugs need only be proven by a preponderance of the evidence. (755) Defendant contended that the sentencing guidelines were unconstitutional because they did not provide for trial by jury to determine the quantity of drugs involved in his offense, and because the quantity of drugs involved need not be proven beyond a reasonable doubt. The 4th Circuit rejected these arguments. Since the quantity of drugs goes to the question of the sentence rather than guilt, a trial by jury is not required, and the government need only prove the quantity by a preponderance of the evidence. U.S. v. Engleman, 916 F.2d 182 (4th Cir. 1990).

4th Circuit holds burden of proof at sentencing hearing is preponderance of evidence. (755) The 4th Circuit held that the preponderance of the evidence standard governs sentencing hearings, rejecting the defendant’s argument that the due process clause requires a higher burden. U.S. v. Vinson, 886 F.2d 740 (4th Cir. 1989).

4th Circuit rules on offense level calculation–burden of proof. (755) Defendant was convicted of possessing over 50 grams of crack cocaine. He appealed his sentence, claiming that the government failed to prove the quantity of cocaine beyond a reasonable doubt. The 4th Circuit rejected his argument, holding that since the quantity was only relevant for sentencing purposes, the government only had to establish it by a preponderance of the evidence. Thus the minimum mandatory sentence of ten years was appropriate because the district judges’ findings on quantity were supported by the record. U.S. v. Powell, 886 F.2d 81 (4th Cir. 1989).

4th Circuit holds defendant has burden to show constitutional infirmity of prior conviction used in setting criminal history. (755) Defendant argued that he was erroneously sentenced as a career offender under § 4B1.1 because the government failed to show that his prior state conviction was obtained after a valid waiver of his right to a jury trial. The 4th Circuit affirmed the sentence, holding that under application note 6 to § 4A1.2, the defendant has the burden of showing the invalidity of a prior conviction, not the government. Because the defendant failed to meet his burden, the career offender sentence was proper. U.S. v. Davenport, 884 F.2d 121 (4th Cir. 1989).

4th Circuit rules defendant has burden to show by a preponderance that he is entitled to a mitigating factor. (755) Pre-guidelines cases indicate that the government bears the burden of proof where the disputed material has the “potential effect of increasing the defendant’s sentence.” However, the Fourth Circuit, in an opinion by Judge Wilkins, the Chairman of the Sentencing Commission, held that where the defendant seeks a decrease in his offense level, he “has the burden of establishing by a preponderance of the evidence the applicability of the mitigating factor in question.” U.S. v. Urrego-Linares, 879 F.2d 1234 (4th Cir. 1989).

4th Circuit holds preponderance of evidence standard applies to findings made during sentencing hearings. (755) Relying on McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986), the Fourth Circuit, per Judge Wilkins who is Chairman of the Sentencing Commission, held that the “preponderance of evidence” standard applies to factual findings made by a court during sentencing. The court found no reason to conclude that the guidelines necessitate any “change” in existing law. U.S. v. Urrego-Linares, 879 F.2d 1234 (4th Cir. 1989).

5th Circuit says 18- and 20-level enhancements did not require heightened level of proof. (755) Defendants were convicted of fraud. The district court applied 18- and 20-level enhancements based on the loss involved in the offense. Defendants argued that, because of the significant effect of the loss enhancement, due process required the government to prove the loss by more than a preponderance of the evidence. Although the burden of proof used at sentencing is generally a preponderance of the evidence, the Fifth Circuit has stated in dicta, that “there may be certain cases where a sentencing fact is a ‘tail that wags the dog of the substantive offense,’ and might arguably require a finding beyond a reasonable doubt.” The enhancements here were significant, accounting for more than 50 percent of defendants’ offense levels, and increasing their recommended sentence range from 18-24 months to 136-168 for one defendant, and 168-210 months for the other. Nonetheless, the Fifth Circuit held that this increase did not require a heightened burden of proof. Previous cases have rejected proof beyond a preponderance for similar increases. See U.S. v. Carreon, 11 F.3d 1225 (5th Cir. 1994) (increase from six to 20 years did not require proof beyond a preponderance). U.S. v. Brooks, 681 F.3d 678 (5th Cir. 2012).

5th Circuit says government must show information in PSR did not violate “use immunity” agreement. (755) Defendant argued that the information about drug quantities in the presentence report came from him and therefore violated his “use immunity” agreement. The government answered that the information was wholly obtained from outside sources, independent of defendant’s assistance. However, neither side offered evidence to support their claim so the question became one of who had the burden of proof. The Fifth Circuit held that normally the defendant has the burden to show that the information relied on in a PSR is not accurate. But when there is a “use immunity” plea agreement, the burden lies with the government to prove that it did not use the defendant’s statements directly as evidence or indirectly as an investigatory lead. See Kastigar v. U.S., 406 U.S. 441, 460-62 (1972). Because the government did not meet its burden here, the sentence was vacated. U.S. v. Taylor, 277 F.3d 721 (5th Cir. 2001).

5th Circuit upholds preponderance standard to prove 1500 kilos where only 45 were seized. (755) Although only 45 kilograms of cocaine were seized, the district court found by a preponderance of the evidence that the conspiracy involved 1500 kilograms, which subjected defendants to mandatory life sentences. Defendants argued that in such a case, due process required proof beyond a reasonable doubt. The Fifth Circuit upheld the preponderance of the evidence standard for determining drug quantity. It was not significant that only 45 kilograms were seized. Note 12 to § 2D1.1 specifically states that where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of drugs involved. U.S. v. Gaytan, 74 F.3d 545 (5th Cir. 1996).

5th Circuit says 23% increase in sentence does not require clear and convincing evidence. (755) Defendant was held accountable for additional drugs based on a cooperating witness’s hearsay testimony. Defendant contended that these additional drugs so dramatically increased his sentence (a 23% increase from 63 to 78 months), that they should have been proven by clear and convincing evidence. The Fifth Circuit held that a 23% increase in sentence did not constitute a sufficiently large departure as to require more proof than the preponderance of the evidence. U.S. v. Vital, 68 F.3d 114 (5th Cir. 1995).

5th Circuit approves presumption that assaults on police are foreseeable in every drug conspiracy. (755) When Border Patrol agents discovered a group of people unloading large bundles of marijuana, shots were fired at them. The group then scattered, and defendant was eventually captured. He did not possess a firearm. He challenged an enhancement under § 3A1.2(b) for assaulting a police officer, claiming it was based on the assumption that assaults on law enforcement officers are reasonably foreseeable in every drug conspiracy. The 5th Circuit disagreed with defendant’s claim that this assumption would unconstitutionally shift the burden of proof at sentencing from the state to the defendant. U.S. v. Ortiz-Granados, 12 F.3d 39 (5th Cir. 1994).

5th Circuit rejects “beyond a reasonable doubt” burden of proof for drug quantity. (755) Defendant was convicted of conspiring to possess 100 or more kilograms of marijuana, but was sentenced for 130,000 kilograms. This increased defendant’s sentence from six years to almost twenty years. The 5th Circuit rejected defendant’s claim that the district court’s findings of drug quantity were subject to the “beyond a reasonable doubt” burden of proof. In U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993), the court rejected the need for the higher standard even though drug quantity increased defendant’s sentence from 30 years to a mandatory life sentence. The difference here also did not constitute such a dramatic effect that it would justify requiring the higher burden of proof. U.S. v. Carreon, 11 F.3d 1225 (5th Cir. 1994).

5th Circuit rejects reasonable doubt standard for drug quantity determination under mandatory minimum. (755) Defendant argued that he should not have been sentenced to a mandatory term of life imprisonment without parole under 21 U.S.C. §841(a)(1)(A)(i) because the court did not find beyond a reasonable doubt that he possessed one kilo of heroin. While recognizing that the reasonable-doubt standard might be required in a case in which the “tail” of sentencing wags the “dog” of conviction, the 5th Circuit examined the sentence and concluded this was not such a case. Even assuming that defendant had possessed only the 100 grams he admitted possessing, the guidelines would still require that defendant receive a sentence of at least 30 years imprisonment. Nor did the life sentence without parole itself necessitate a higher standard of proof than preponderance of the evidence. U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993).

5th Circuit affirms that drug quantity is sentencing issue for the judge. (755) The 5th Circuit rejected defendant’s claim that the jury should have determined the amount of drugs involved in his crime. The quantity of drugs is not an element of the crime, but a fact for the judge to consider at sentencing. U.S. v. Bounds, 985 F.2d 188 (5th Cir. 1993), abrogation on other grounds recognized by U.S. v. Medina, 161 F.3d 867 (5th Cir. 1998).

5th Circuit affirms consideration of laundered money involved in acquitted counts. (755) The 5th Circuit found no error in the district court’s consideration of laundered money for which her husband was convicted but for which she was acquitted. The government need only prove facts at sentencing by a preponderance of the evidence. Although the jury was not convinced beyond a reasonable doubt that defendant was criminally responsible for the entire sum laundered, the district court could conclude that a preponderance of the evidence supported this conclusion. U.S. v. Allibhai, 939 F.2d 244 (5th Cir. 1991).

5th Circuit holds that court need not accept, for sentencing purposes, stipulation as to amount of drugs involved. (755) Pursuant to a plea agreement, defendant and the government stipulated that the total amount of amphetamines involved in conspiracy was 440 grams. The district court declined to accept the stipulation, and sentenced defendant on the basis of additional drugs found on defendant’s person at his arrest and in his laboratory. The 5th Circuit, following its previous decision in U.S. v. Garcia, 902 F.2d 324 (5th Cir. 1990), held that a district court is not bound by the amounts charged in the indictment or stipulated by the parties at the time of the guilty plea. The court also held that matters relevant to sentencing need be shown only by a preponderance of the evidence. U.S. v. Woods, 907 F.2d 1540 (5th Cir. 1990).

5th Circuit holds that due process requires only that sentencing judge find relevant factors exist under the preponderance of the evidence standard. (755) A drug defendant claimed that due process was violated by allowing the trial judge to determine that she had entered a drug conspiracy on a certain date. The date of her entry was important because it would be used to aggregate quantities of drugs to set her offense level. The 5th Circuit held due process was not violated by permitting a sentencing court to determine facts relevant to sentencing by a preponderance of the evidence standard. Contrary to the defendant’s assertions, the sentencing judge did not rely upon out-of-court evidence to sentence the defendant, but rather relied upon the evidence presented in court. U.S. v. Casto, 889 F.2d 562 (5th Cir. 1989).

5th Circuit holds that defendant has burden of proof to show lack of profit motive for alien smuggling. (755) Defendant argued that the district court erred when it placed the burden of proof on him to show the lack of any profit motive. The 5th Circuit found no error stating that: “As to mitigating or sentence-reducing factors, the defendant bears the burden of proof. The sentence was affirmed. U.S. v. Cuellar-Flores, 891 F.2d 92 (5th Cir. 1989), superseded by statute on other grounds as stated in U.S. v. Michael, 894 F.2d 1457 (5th Cir. 1990).

5th Circuit reaffirms that defendant seeking mitigation of offense level bears the burden of proof. (755) Relying on its earlier decision in U.S. v. White, 869 F.2d 822 (5th Cir. 1989), the 5th Circuit held that a defendant who seeks to mitigate his offense level or sentence bears the burden of proof. U.S. v. Cuellar-Flores, 891 F.2d 92 (5th Cir. 1989), superseded by statute on other grounds as stated in U.S. v. Michael, 894 F.2d 1457 (5th Cir. 1990).

6th Circuit affirms use of preponderance standard to find that defendant committed additional offense. (755) Defendant pled guilty to being a felon in possession of a firearm. He was charged with a weapons offense in state court after he pled guilty in this matter. He challenged the district court’s denial of an acceptance of responsibility reduction based on the state offense, contending that the court had to find the fact of his new weapons offense beyond a reasonable doubt. The Sixth Circuit disagreed. It is well-established that factual findings affecting a sentence’s severity need not be made by a jury beyond a reasonable doubt, but can be determined by a judge by a preponderance of the evidence. Here, there was sufficient evidence to support the court’s finding. Defendant’s PSR stated that defendant supplied a shotgun to an informant who planned to commit a robbery and share the proceeds with defendant. Police officers observed the informant leave defendant’s residence with the shotgun, and recorded the transaction with video or audio devices. Moreover, officers found ammunition in defendant’s home. Defendant did not produce evidence to challenge the reliability of the report. U.S. v. Denson, 728 F.3d 603 (6th Cir. 2013).

6th Circuit remands to determine whether conviction under federal escape statute was crime of violence. (755) The district court originally sentenced defendant to 168 months based in part on its finding that his prior conviction under the federal escape statute was a crime of violence for career offender purposes. The appellate court upheld the court’s conclusion that the escape conviction was a crime of violence, but remanded for resentencing in light of U.S. v. Booker, 543 U.S. 220 (2005). Defendant was resentenced to 151 months, and appealed again, arguing that his escape conviction was not a crime of violence. The Sixth Circuit held that its previous holding that the federal escape statute is categorically a crime of violence, was no longer good law. See Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), U.S. v. Ford, 560 F.3d 420 (6th Cir. 2009). However, the record here was insufficient to determine the nature of defendant’s § 751(a) conviction. On remand, the government will bear the burden of proving that the escape conviction was a crime of violence under guideline § 4B1.1(a). U.S. v. Anglin, 601 F.3d 523 (6th Cir. 2010).

6th Circuit declines to review for plain error where defendant’s answer to court’s question was unclear. (755) Defendant challenged the reasonableness of his 270-month sentence on appeal. The government argued that the appellate court should apply the plain error standard of review to the sentencing procedure used in the case. At sentencing, the court asked defendant whether he had any objections or questions concerning the terms of the sentence imposed by the court. Defendant responded: “I’m going to appeal it.” When the judge was confused, defendant said “I mean no.” Defense counsel then clarified that he told his client that the court would be informing them of certain appeal rights, and that defendant was making reference to filing the claim of appeal. Because it was unclear whether the court directed its “any objections” question only to defendant and not to his counsel, the Sixth Circuit declined to apply the plain error standard of review, and reviewed the reasonableness of the sentence de novo. U.S. v. Stephens, 549 F.3d 459 (6th Cir. 2008).

6th Circuit upholds sentence based on judge’s findings by preponderance of the evidence. (755) In 2002, defendants were convicted of drug conspiracy charges and sentenced to lengthy prison terms. After the Supreme Court’s decision in Booker, the case was remanded for resentencing. On remand, the district court reimposed identical sentences. Defendants argued that the district court violated their Sixth Amendment and due process rights by making factual findings, by a preponderance of the evidence, to determine their sentencing ranges. The Sixth Circuit noted that it has squarely rejected defendants’ contention that Booker or Blakely required all factual findings affecting a sentence’s severity to be made by a jury beyond a reasonable doubt. Defendants’ sentences did not exceed the maximum statutory penalty that could be imposed for this offense. The maximum statutory penalty that the court could impose was determined by the statute of conviction, rather than by a Guidelines range calculating using only jury findings. U.S. v. Sexton, 512 F.3d 326 (6th Cir. 2008).

6th Circuit applies deferential review to denial of acceptance reduction. (755) In Buford v. U.S., 532 U.S. 59 (2001), the Supreme Court held that the district court was entitled to deference in its application of U.S.S.G. § 4B1.2 in a case where the underlying facts were undisputed. Following Buford and an unreported case in its circuit, the Sixth Circuit held that the deferential standard of review applied to the district court’s application of the acceptance of responsibility guideline to undisputed facts. The older cases relied on by defendant in support of de novo review, U.S. v. Jeter, 191 F.3d 637 (6th Cir. 1999) and U.S. v. Tilford, 224 F.3d 865 (6th Cir. 2000), were no longer controlling. Under this standard of review, the denial of the acceptance reduction to both defendants was proper. The first defendant made statements that were inconsistent with his guilty plea, and disagreed with the factual accuracy of his conduct as related in the PSR. Although the issue was closer for the second defendant because he expressed greater remorse, the district court did not err in determining that his conduct was inconsistent with acceptance of responsibility. U.S. v. Webb, 335 F.3d 534 (6th Cir. 2003).

6th Circuit refuses to review extreme increase under stricter clear and convincing evidence standard. (755) Defendant’s initial guideline range for his fraud offense was 15-21 months. The district court made several upward departures, resulting in a sentence of 360 months in prison. Relying on U.S. v. Kikumura, 918 F.3d 1084 (3d Cir. 1990), defendant argued that the facts relied on at sentencing needed to be proved by clear and convincing evidence because the evidence had a dramatic effect on his sentence. Although the case “undeniably present[ed] one of those exceptional situations where the sentencing factor has a disproportionate effect on the sentence relative to the offense of conviction,” in U.S. v. Graham, 275 F.3d 490 (6th Cir. 1991), the Sixth Circuit “rejected the invitation to adopt a higher standard of proof simply because the enhancement would significantly increase the defendant’s sentence.” As long as a sentencing factor does not alter the statutory range of penalties faced by the defendant for the crime of which he was convicted, the Supreme Court permits the factor to be found by a preponderance of the evidence. Thus, the Sixth Circuit here found that the use of the preponderance of the evidence standard was proper here. U.S. v. Mayle, 334 F.3d 552 (6th Cir. 2003).

6th Circuit affirms forcible restraint enhancement. (755) Defendants were convicted of conspiracy and substantive charges relating to gambling, prostitution, and drug trafficking. The government introduced evidence on one incident in which defendants restrained and beat an employee they suspected of having stolen money out of electronic gambling machines. Two defendants handcuffed the employee, stretched him over a desk in an office, pulled his trousers down, and beat him with a large wooden paddle. When the victim attempted to stand up, one defendant prevented him from doing so by forcing the point of his elbow into the victim’s back. The victim suffered scarring and severe bruising. The Sixth Circuit affirmed a § 3A1.3 enhancement because the beating incident involved the “forcible restraint of the victim such as by being tied up, bound or locked up.” U.S. v. Owens, 159 F.3d 221 (6th Cir. 1998).

6th Circuit says perjury finding only requires preponderance of the evidence. (755) In evaluating whether a defendant has committed perjury, note 1 to § 3C1.1 directs a court to evaluate a defendant’s testimony in a light most favorable to the defendant. Defendant argued that this requires a court to decide the perjury question under a clear and convincing evidence standard. The Sixth Circuit disagreed, holding that preponderance of the evidence is the correct standard for all fact-finding at sentencing, and note 1 does not change this standard. The preponderance of the evidence standard requires a fact-finder to weigh the evidence on both sides of a contested issue. The admonition in note 1 requires the judge, as he or she weighs the evidence, to be especially alert for factors that militate in favor of finding alleged false testimony by the defendant to be actually true. Here, the evidence most favorable to defendant was that he was consuming large quantities of alcohol during the time in question. However, defendant did not state that he could not remember certain matters. Instead, he denied any involvement in the drug conspiracy. Furthermore, he gave these answers in response to questions from his own counsel. The questions were not “sprung on” defendant by the prosecutor. U.S. v. Zajac, 62 F.3d 145 (6th Cir. 1995).

6th Circuit considers drug involved in conduct underlying acquitted counts. (755) Defendant was convicted of distributing about 1.69 grams of crack, and acquitted of counts involving 59 grams of crack. The 6th Circuit held that the district court properly considered at sentencing the 59 grams involved in the acquitted counts. The acquittal did not require the district court to ignore the otherwise relevant conduct. In order to convict at trial, the government bears the burden of proving the elements of the offense beyond a reasonable doubt. However, the burden of proof at sentencing is the lesser preponderance of the evidence standard. U.S. v. Lloyd, 10 F.3d 1197 (6th Cir. 1993).

6th Circuit upholds preponderance standard in finding planned offense of felon in possession of firearm. (755) Defendant was convicted of being a felon in possession of a firearm. Under 2K2.1(c)(2), the offense level for the “object offense” is applied if defendant possessed the gun in furtherance of another crime. The 6th Circuit affirmed the district court’s finding that defendant had been attempting to commit an armed robbery. It concluded that the district court’s finding was not clearly erroneous and that the court had properly applied a preponderance of the evidence standard. Senior Judge Celebrezze dissented on the grounds that defendant was being sentenced as if he had committed robbery even though it had not been proven beyond a reasonable doubt that he committed or intended to commit a “federal robbery offense.” U.S. v. Voyles, 995 F.2d 91 (6th Cir. 1993).

6th Circuit requires specific evidence that defendant’s supervisory position facilitated embezzlement. (755) Defendant, an executive director of the federal Agricultural Stabilization and Conservation Service, was convicted of embezzling funds. The district court adjusted her offense level for abuse of a position of trust, concluding that her largely unsupervised position permitted her to commit her crimes with less fear of apprehension than would exist for ordinary employees of the office. The 6th Circuit reversed. While noting the plausibility of the district court’s theory, the 6th Circuit pointed out that no record was developed to establish that defendant’s autonomy clearly assisted in the concealment of the crime. U.S. v. Williams, 993 F.2d 1224 (6th Cir. 1993).

6th Circuit upholds preponderance of the evidence standard at sentencing. (755) The 6th Circuit rejected defendant’s claim that the preponderance of the evidence standard was too low to be used at sentencing. The Circuit has held numerous times that it is the correct and appropriate standard for sentencing under the guidelines. U.S. v. August, 984 F.2d 705 (6th Cir. 1993).

6th Circuit affirms preponderance of the evidence standard at sentencing. (755) The 6th Circuit affirmed that relevant conduct need only be proven at sentencing by the preponderance of the evidence. The use of this standard does not violate the 8th Amendment’s requirement that all elements of a crime be proven beyond a reasonable doubt. U.S. v. Ushery, 968 F.2d 575 (6th Cir. 1992).

6th Circuit affirms that drug quantity is not a jury issue. (755) The 6th Circuit summarily rejected defendant’s claim that the amount of heroin involved in his offense was a jury issue, not a mere sentencing consideration. U.S. v. Markarian, 967 F.2d 1098 (6th Cir. 1992).

6th Circuit panel expresses belief that drug quantity is an element of offense which should be submitted to the jury. (755) Notwithstanding circuit precedent and the weight of authority to the contrary, a 6th Circuit panel stated that it believed that drug quantity is an element of an offense under 21 U.S.C. § 841 which should be determined by the jury, rather than by the judge at sentencing under the preponderance of the evidence standard. The fact that quantity is listed under the penalty provision of the statute does not require quantity to be considered by the judge at sentencing. Because quantity under § 841 is such an “important and disputable factual issue,” it should be determined by the jury. The judicial determination of quantity undermines the function of the jury, limiting it to merely determining that defendant engaged in some illegal activity under § 841. The judge becomes “empowered to make one of the most critical factual determinations regarding the defendant’s culpability.” Nevertheless, the court ruled that it was bound to follow circuit precedent, and thus affirmed the district court’s determination of drug quantity. U.S. v. Rigsby, 943 F.2d 631 (6th Cir. 1991).

6th Circuit holds that preponderance of evidence standard applies in sentencing hearings. (755) Relying on McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986), the 6th Circuit rejected defendant’s argument that the government must prove facts at sentencing by clear and convincing evidence. Proof by a preponderance of evidence is sufficient. U.S. v. Carroll, 932 F.2d 823 (9th Cir. 1991).

6th Circuit affirms firearms enhancement even though defendant was acquitted of carrying a firearm. (755) A jury found defendant guilty of distributing and possessing cocaine, but not guilty of using and carrying a firearm during a drug trafficking crime. Defendant challenged the district court’s enhancement of his offense level under guideline § 2D1.1 for possessing a firearm during the commission of a drug offense. The 6th Circuit upheld the enhancement. The district court found that defendant possessed the weapon on the front seat next to him during a drug transaction that took place in his car. A later drug transaction took place in the home at which defendant’s car was parked, but it was still proper for the court to determine that the gun was easily accessible to defendant, and was therefore present, during the offense. Although defendant had been acquitted of the firearms carrying charge, there was still ample room for the district court to find by a preponderance of the evidence that the weapon was possessed during the drug offense. U.S. v. Duncan, 918 F.2d 647 (6th Cir. 1990).

6th Circuit counsels caution when determining drug quantities. (755) The evidence at trial established that defendants had distributed only approximately 25 grams of cocaine. However, the district court found that they were responsible for 455 grams based upon evidence that they were dealing at least 1/8 of an ounce (3.5 grams) of cocaine per week and that it was “safe to assume” that they continued to deal cocaine every week for two and one-half years. The 6th Circuit stated that if the exact amount cannot be determined, an estimate can suffice, but a preponderance of the evidence must support the estimate. Thus when choosing between a number of plausible estimates of drug quantity, “a court must err on the side of caution.” Here, the court found no circumstantial evidence to support the finding of continuous distribution. Furthermore, the defendants’ only asset was a 1975 automobile. They paid $250 in rent, received welfare, and acknowledged that they had a cocaine habit. The court found that if they were regularly dealing in drugs for two years, one would expect to find some evidence of additional income. The case was remanded for resentencing. U.S. v. Walton, 908 F.2d 1289 (6th Cir. 1990).

6th Circuit holds that due process is satisfied by preponderance of the evidence standard. (755) Relying upon prior Supreme Court and Circuit authority, the 6th Circuit held that it is not a violation of due process for courts to make findings based upon a preponderance of the evidence rather than a reasonable doubt when sentencing defendants. U.S. v. Walton, 908 F.2d 1289 (6th Cir. 1990).

6th Circuit agrees with other circuits that defendant bears the burden of establishing basis for sentence reduction. (755) Agreeing with the 3rd and 4th Circuits, the 6th Circuit ruled that “when a defendant seeks to establish facts which would lead to a sentence reduction under the guidelines, he shoulders the burden of proving these facts by a preponderance of the evidence.” U.S. v. Rodriguez, 896 F.2d 1031 (6th Cir. 1990).

6th Circuit holds that preponderance of evidence standard governs sentencing hearings. (755) The 6th Circuit held that the District Court properly applied a preponderance of the evidence standard to contested facts in sentencing hearings. Furthermore, the court properly considered hearsay evidence without regard to the rules of evidence, as is permitted by § 6A1.3 and 18 U.S.C. § 3577. U.S. v. Silverman, 889 F.2d 1531 (6th Cir. 1989).

7th Circuit holds that court did not err in using preponderance of the evidence standard to apply murder cross-reference. (755) Defendant was convicted of distributing cocaine base. Based on defendant’s involvement in the murder of a police informant, the district court applied the cross-reference to the murder guideline, resulting in a life sentence. Defendant argued for the first time on appeal that the court erred in applying the cross-reference based solely on a finding by a preponderance of the evidence. However, in U.S. v. Reuter, 463 F.3d 792 (7th Cir. 2006), the Seventh Circuit expressly rejected the argument that, post-Booker, a higher standard of proof is required for substantial enhancements based on facts not found by a jury. Here, the Seventh Circuit held that the district court did not plainly err in applying the cross-reference based on the preponderance of the evidence. Reuter is still good law, and the court has relied on it in three published opinions. The evidence of defendant’s involvement in the informant’s murder met the preponderance standard. The court properly considered the Special Agent’s hearsay testimony that a jailhouse informant reported that defendant had confided that he had assisted in the murder. U.S. v. Mitchell, 635 F.3d 990 (7th Cir. 2011).

7th Circuit remands because court failed to hold government to burden of proof. (755) Defendant pled guilty to one count of tax preparer fraud. He appealed the district court’s finding that he was responsible for a total tax loss of $428,444, arguing that the court deprived him of his right to a fair sentencing hearing and did not hold the government to its burden of proof. The Seventh Circuit agreed. The court began the hearing by announcing its findings on the amount of loss before allowing defendant’s attorney to present any argument. When counsel argued that all of the loss was not attributable to defendant, the court found that the information provided by the government had sufficient indicia of reliability. Thus, the court appeared to confuse the standard for the admissibility of evidence at sentencing with that for proving relevant conduct. When defense counsel clarified that he was not questioning the reliability of the information, but rather whether the government had proven the conduct, the court suggested that the government had met its burden of proof merely by submitting admissible evidence. This confusion was worrisome given defendant’s persuasive challenge to the propriety of using a civil audit to attribute criminal liability. U.S. v. Schroeder, 536 F.3d 746 (7th Cir. 2008).

7th Circuit holds that court erred in requiring defendant to prove false identification was not of actual person. (755) Section 2B1.1(b)(10) (C)(i) provides for an enhancement for “use of any means of identification unlawfully to produce or obtain any other means of identification.” Note 9(A) provides that the false means of identification used must be that “of an actual (i.e. not fictitious) individual, other than the defendant.” Because testimony indicating that the name, social security number and birth date defendant used to obtain an Ohio driver’s license did not belong to a real person, defendant argued that the enhancement was improper. The Seventh Circuit held that the district court erred in requiring defendant to bear the initial burden of production concerning whether his false identification was that of an “actual individual.” The government has the burden to prove by a preponderance of the evidence that a particular sentencing enhancement is warranted. While a defendant must make a specific objection to a sentencing enhancement, no principle of law requires that such an objection be supported by the testimony of a witness called by the defense. An oral or written statement of reasons for the objection suffices to place the court and the government on notice of the content of the challenge. U.S. v. Hines, 449 F.3d 808 (7th Cir. 2006).

7th Circuit upholds use of murder cross-reference. (755) Defendant, the former president of a motorcycle gang, pled guilty to using the gang’s clubhouse to sell drugs. The district court found that defendant had murdered Melby, a member of the gang, and applied the cross-reference in U.S.S.G. § 2D1.1(d)(1). This increased defendant’s penalty from a range of 121-151 months to a sentence of 30 years. Defendant argued that this increase was so extreme as to require the government to show clear and convincing evidence that he killed Melby. The Seventh Circuit found it unnecessary to decide what standard of proof was required, because the evidence supported a finding of guilt even under the more stringent clear and convincing standard. A friend testified that defendant told him in detail how he had killed Melby because he thought Melby had stolen money and drugs from him. To support his story, the friend took the investigating officer to his home and pulled out an undated letter describing the killing, the fear that caused the friend to keep the story to himself, and the guilt he felt. A co-conspirator who helped defendant dispose of the body unwittingly supported the story. During a taped conversation with several thinly veiled references to the murder, the friend asked “Who else knows?”, to which the co-conspirator replied “I ain’t got the slightest. Only thing I know is you do and I’ve never really liked that.” Finally, several other witnesses told stories consistent with the friend’s account. The district court found all of these witnesses credible. U.S. v. Boos, 329 F.3d 907 (7th Cir. 2003).

7th Circuit holds that sentence increase did not require clear and convincing evidence. (755) In U.S. v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995), the Seventh Circuit stated in dicta that a case might require a higher standard of proof when the finding at sentencing becomes “the tail that wags the dog of the substantive offense.” However, in the seven years since Rodriguez was decided, the Seventh Circuit has yet to find a sentencing disparity that warranted this heightened evidentiary standard. Here, the court’s drug quantity findings increased defendant’s sentence from a range of 151-188 months, to a sentence of 240 months. The Seventh Circuit found nothing about defendant’s sentence that would cause it to require proof by clear and convincing evidence. Although the principal of Rodriguez was still viable, it had no applicability here. U.S. v. Smith, 308 F.3d 726 (7th Cir. 2002).

7th Circuit holds that sentence increase from relevant conduct did not require clear and convincing evidence. (755) A sentencing court uses a preponderance of the evidence standard in making a factual finding that a defendant has engaged in relevant conduct. In extreme cases, an increase in a defendant’s sentence might be so great as to require the use of the more demanding clear and convincing evidence standard. See U.S. v. Ofcky, 237 F.3d 904 (7th Cir. 2001). Here, the consideration of the relevant conduct increased defendant’s sentencing range from 12-18 months to 41-51 months. The Seventh Circuit held that this increase was not so severe as to require the more demanding standard of proof. Previous cases have approved the use of the preponderance standard in instances in which a sentence was enhanced much more significantly than in defendant’s case. See, e.g. U.S. v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995) (enhancement from 51-63 months to a sentence of life imprisonment). U.S. v. Anderson, 259 F.3d 853 (7th Cir. 2001).

7th Circuit holds that relevant conduct increase did not require clear and convincing evidence. (755) The district court’s relevant conduct finding increased defendant’s base offense level from 14 to 20, and increased his guideline range from 18-24 months to a range of 37-46 months. Defendant argued that such a dramatic increase required the relevant conduct to be proven by clear and convincing evidence, rather than the usual preponderance of the evidence standard. The Seventh Circuit found that the sentencing increase involved here was not so great as to require clear and convincing standard of proof. Although this circuit has not determined how large an increase requires the more demanding standard of proof, it has decided cases in which a large sentence increase was not so great as to require a higher standard of proof. See, e.g. U.S. v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995) (upholding sentencing enhancement from 51-63 months to life). U.S. v. Ofcky, 237 F.3d 904 (7th Cir. 2001).

7th Circuit says use of acquitted conduct did not merit higher standard of proof. (755) Defendants were convicted of a mail fraud conspiracy, but were acquitted of the federal crime of arson. However, the district court found by a preponderance of the evidence that defendants had committed arson, and used the arson as relevant conduct for sentencing purposes. Defendant argued that a heightened standard of proof applies “where a factual finding will result in a sentencing increase so great ‘that the sentencing hearing can fairly be characterized as a tail which wags the dog of the substantive offense.’” See U.S. v. Kikumura, 918 F.3d 1084 (3d Cir. 1990). The Seventh Circuit held that the use of acquitted here conduct did not require a higher standard of proof. Although a higher standard might be appropriate where the government appeared to use the sentencing hearing to retry the substantive offense, this was not such a case. If defendants had been convicted of the federal arson charge, they would each serve between five and 20 years. Instead, by enhancing their sentences based on the relevant conduct of arson, each defendant was serving either 27 or 33 months, roughly half of the minimum sentence they would have received for the arson charge. U.S. v. Kroledge, 201 F.3d 900 (7th Cir. 2000).

7th Circuit holds that cross-reference to murder did not violate due process. (755) Defendant was convicted of a drug conspiracy. The district court found that defendant had murdered one man and had directed a co-conspirator to murder another man. The murders had been committed because defendant believed that the victims were going to inform the police of his drug activities. Section 2D1.1(d)(1) directs a court to apply § 2A1.1, the first-degree murder guideline, where a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111. This increased defendant’s offense level to 43, and resulted in a life sentence. The Seventh Circuit rejected defendant’s claim that the cross-reference violated due process. Although increased precautions may be necessary where the use of a cross-reference dramatically alters the balance between trial and sentencing, this was not such a case. The enhancement only increased defendant’s offense level from 39 to 43. This was not the type of dramatic increase which would allow the sentencing enhancement to become the tail which wags the dog of the substantive offense. U.S. v. Meyer, 157 F.3d 1067 (7th Cir. 1998).

7th Circuit remands to decide if defendant waived challenge to crack sentence. (755) Defendant pled guilty to a “cocaine base” conspiracy and the district court sentenced him as if he had dealt in “crack.” He argued that there is a distinction between cocaine base and crack and the government failed to prove that the substance was crack. The Seventh Circuit agreed, and remanded to decide whether defendant waived his right to contest the enhanced penalties. The indictment charged him with distributing and possessing crack cocaine. Defendant, counsel and the court referred to the substance as crack cocaine at trial, witnesses testified that defendant was involved in distributing crack cocaine, a co-defendant admitted that he had been involved in distributing crack cocaine with defendant, and the court found that defendant had not testified reliably. However, the lab analysis only reported the substance as 54.6 grams of cocaine base. The district court must determine whether these multiple repetitions of the word crack constituted a knowing waiver by defendant. If not, the government must prove by a preponderance of the evidence that the substance was crack. U.S. v. Earnest, 129 F.3d 906 (7th Cir. 1997).

7th Circuit uses preponderance of the evidence to determine drug quantity. (755) Defendant argued that the clear and convincing evidence standard should have been used at sentencing because the factual determinations of her relevant conduct increased the severity of her sentence. The Seventh Circuit upheld the use of preponderance of the evidence standard to determine drug quantity. This case did not present the extreme circumstances in U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). Not only was there no upward departure here, but defendant’s sentence was much lower than it could have been. The judge sentenced defendant solely on the amount of drugs she sold for one supplier. The judge completely excluded any reference to drugs defendant admittedly sold for other distributors. Additionally, the judge granted an acceptance of responsibility reduction, and subtracted one-third from the total amount of drugs involved to represent the time for which she sold cocaine. Finally, the judge sentenced defendant to the low end of the guideline range. U.S. v. Miner, 127 F.3d 610 (7th Cir. 1997).

7th Circuit holds defendant waived challenge to role enhancement. (755) Defendant pled guilty to credit card fraud. As part of his plea agreement, he agreed that he should receive a four level role enhancement under § 3B1.1(a). He did not object to the enhancement at sentencing. A week after the sentence was imposed, defendant filed a motion, purportedly under Rule 35(c), contending that the role enhancement was improper. The district court denied the motion, and defendant appealed. The Seventh Circuit held that defendant did not preserve issue for appeal. The Rule 35(c) motion was patently improper. Rule 35(c) only grants a court authority to correct an obvious arithmetical, technical or other clear error. The rule does not relax the requirement to state all objections at or before the sentencing hearing. Defendant plainly agreed in his plea agreement that he should receive the enhancement and that the factual predicate for the enhancement was satisfied. There was no compelling basis for disregarding his admissions. U.S. v. Porretta, 116 F.3d 296 (7th Cir. 1997).

7th Circuit does not require higher burden of proof for increase from 11 years to life where life expectancy was only 15.4 years. (755) Defendant pled guilty to racketeering and fraud. The district court found that defendant conspired to murder one of his fraud victims. Applying § 2X1.1 and § 2A1.1 resulted in an offense level of 43, rather than 30, and required a life sentence. Defendant argued that court should have required the uncharged conduct to have been proven by clear and convincing evidence rather than a preponderance. The Seventh Circuit ruled that the increase in sentence did not justify the higher burden of proof. As a 66‑year old white male, defendant had a life expectancy of 15.4 years. The court said it would have imposed a 135‑month sentence, about 11 years, in the absence of evidence of the uncharged murder. The difference between 11 years and 15.4 years does not approach the level of sentencing increase that would require a higher burden of proof. U.S. v. Bailey, 97 F.3d 982 (7th Cir. 1996).

7th Circuit considers RICO murder despite acquittal or hung jury on murder counts. (755) Defendants, members of the “Mob,” were convicted of RICO charges. They challenged the judge’s finding that their conduct included a conspiracy to commit murder, since the jury either acquitted or hung on the murder counts. The Seventh Circuit held that the judge’s consideration of the murder did not usurp the jury’s function. The jury was asked to decide whether there was proof beyond a reasonable doubt, whereas the preponderance of the evidence standard applied at sentencing. Although two members of the circuit have recently expressed support for using a clear and convincing evidence standard at sentencing to justify a markedly higher sentence that the facts found at trial, that was not the view of the majority of the judges. U.S. v. DiDomenico, 78 F.3d 294 (7th Cir. 1996).

7th Circuit judge suggests need for heightened standard of proof at sentencing. (755) Defendant was charged with conspiracy to sell marijuana. The judge instructed the jury that to convict, it only had to find that defendant had conspired to sell a “measurable” amount of marijuana. The prosecutor invited the jury to convict on the basis of evidence that defendant delivered 10 ounces. After conviction, the judge found by a preponderance of the evidence that defendant was responsible for 1000 kilograms, triggering a mandatory life sentence. The Seventh Circuit affirmed on appeal. Judge Posner dissented from the denial of defendant’s request for rehearing en banc. He suggested that a heightened standard of proof may be required in cases such as this where the issue is life imprisonment versus a much shorter imprisonment. He believed the issue important enough to merit rehearing by the en banc court. U.S. v. Rodriguez, 73 F.3d 161 (7th Cir. 1996) (Judge Posner dissenting from denial of rehearing en banc).

7th Circuit says Kikumura does not alter burden of proof in drug case. (755) Defendant was convicted of a drug conspiracy with two prior felony drug convictions. The statute, 21 U.S.C. § 841(b)(1)(B), requires life imprisonment for such a defendant if the offense involved more than 1000 kilograms of marijuana. Relying on U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), defendant argued that the impact of drug quantity on the sentence was so great as to require proof beyond a reasonable doubt. The Seventh Circuit held that Kikumura did not alter the traditional burden of proof for drug quantity determinations. Although due process considerations might, at some point, require a greater standard of proof, the Kikumura rationale did not aptly apply to drug quantity determinations under the guidelines. The sentencing range for a drug offense depends on the quantity involved. The milestones are progressive, and none of the incremental increases in sentence is sufficiently extraordinary by itself. U.S. v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995).

7th Circuit says departure of 2.2 times guideline sentence did not require higher standard of proof. (755) Defendant had a maximum guideline sentence of 27 months for maintaining a place for cocaine distribution. The district court departed upward to a 60-month sentence because of the large quantity of drugs involved. Defendant argued that given the significant departure, the drug quantity should have been proven by the higher clear and convincing evidence standard rather than the usual preponderance of the evidence standard. The Seventh Circuit held that the departure, which resulted in a sentence of 2.2 times the maximum sentence without the departure, was not sufficiently extreme to warrant the higher standard of proof. An enhanced standard of proof is required, if ever, only under “the most extreme circumstances,” such as the 10.91-fold increase in sentence in U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). The evidence supporting the court’s drug quantity determination was sufficiently reliable. Testimony in drug cases often comes from “less-than-angelic” witnesses. Sentencing would be difficult if only information from “nuns and Boys Scouts” were considered reliable. U.S. v. Ewers, 54 F.3d 419 (7th Cir. 1995).

7th Circuit applies preponderance standard to three-fold increase in sentencing range. (755) Relevant conduct increased defendant’s guideline range from 33-41 to a range of 121-137 months. Defendant argued that the magnitude of the increase required the clear and convincing evidence standard, rather than the preponderance of the evidence standard usually used at sentencing. The 7th Circuit found that this three-fold increase in sentencing range did not require use of the clear and convincing evidence standard. Previous cases have approved similar increases without resorting to the higher standard. U.S. v. Porter, 23 F.3d 1274 (7th Cir. 1994).

7th Circuit upholds leadership enhancement where defendant presented no evidence to support challenge. (755) The 7th Circuit rejected defendant’s challenge to a leadership enhancement under section 3B1.1(a). In imposing the enhancement, the district court relied upon defendant’s stipulation in his plea agreement that he was a leader and upon the evidence supporting the presentence report. Defendant presented no evidence at his sentencing hearing and therefore failed to meet his burden of production. The fact that the district court mistakenly attached the Rule 32(c)(3)(D) written findings to its judgment rather than the sealed PSR was harmless error. U.S. v. Isirov, 986 F.2d 183 (7th Cir. 1993).

7th Circuit affirms reliance upon PSR where defendant presented only “bare denial” to challenge its accuracy. (755) Defendant argued that the district court’s perfunctory examination of his objections to the PSR violated due process and Rule 32. The 7th Circuit upheld the reliance upon the PSR, because defendant failed to produce any evidence challenging its reliability. A defendant who challenges factual allegations in the PSR has the burden of producing some evidence beyond a bare denial that calls the reliability or correctness of the alleged facts into question. Defendant presented no evidence at the sentencing hearing that would contradict the findings in the PSR, despite the sentencing court’s invitation. The factual allegations contained in the PSR were based upon hearsay evidence that the court deemed more reliable than defendant’s bare denial. U.S. v. Isirov, 986 F.2d 183 (7th Cir. 1993).

7th Circuit rules that defendant had burden of presenting evidence that PSR allegations were unreliable. (755) The 7th Circuit upheld the district court’s reliance upon the PSR’s determination of drug quantity, which were based upon a co-conspirator’s estimates. The government was not responsible for establishing that figure by presenting the co-conspirator’s testimony in open court and subjecting him to cross-examination. When a defendant contests an allegation in the PSR, he bears the burden of production, and must come forward with evidence showing that the challenged fact is untrue. Once the defendant meets this burden, the prosecution bears the final burden of persuasion. The only time that the defendant can possibly succeed with a mere denial is in the case of a naked or unsupported charge. Here, defendant presented no evidence showing that the drug quantity estimate in the PSR was incorrect. U.S. v. Westbrook, 986 F.2d 180 (7th Cir. 1993).

7th Circuit upholds refusal to give jury instruction on accountability of conspirators. (755) The 7th Circuit upheld the district court’s refusal to give an instruction directing the jury to determine the quantity of cocaine distributed by each defendant or by co-conspirators in furtherance of the conspiracy that was known or reasonably foreseeable to each defendant. The amount of narcotics for which a given defendant is responsible is a factual issue to be determined by the judge, not the jury. The judge used a proper standard of foreseeability in determining each defendant’s accountability. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993).

7th Circuit upholds preponderance of evidence standard in racketeering case. (755) Defendant was convicted of racketeering charges. Section 2E1.1(a)(2) calls for the use of the offense level applicable to the underlying racketeering activity. Defendant contended that in considering whether a he committed some other offense, the court should use a standard more exacting than the preponderance of the evidence. The 7th Circuit held that the district court properly used the preponderance standard in concluding that defendant was responsible for his wife’s murder. Conviction at trial supplies all of the justification the Constitution requires for depriving a defendant of liberty for any term up to the maximum prescribed by statute. The court appeared to reject the 3rd Circuit’s conclusion in U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990) that when findings at sentencing transform the offense of conviction into an far more serious offense with a much more severe penalty, the court should use an enhanced burden of persuasion. U.S. v. Masters, 978 F.2d 281 (7th Cir. 1992).

7th Circuit refuses to require higher burden of proof despite large increase in sentence. (755) The district court found, by a preponderance of the evidence, that defendant was involved in a conspiracy through August 1989, even though defendant contended that he terminated his involvement in October, 1987. This resulted in defendant being sentenced under the guidelines and the mandatory minimum sentencing provisions of 21 U.S.C. section 841(b)(1). Under pre-guidelines law and the parole system, defendant would have been subject to a maximum term of imprisonment of five years, with an estimated time in custody of zero to six months. Relying on U.S. v. Kikumura, 918 F.2d 1084 (3rd 1990), defendant argued that because of the drastic increase in sentence, the government should have been required to prove his participation in the conspiracy by clear and convincing evidence. The 7th Circuit refused to require a higher burden of proof, and held that the district court correctly employed the preponderance of the evidence standard. The court also said that drug quantity is not a substantive element of the offense, but merely goes to the severity of the sentence. U.S. v. Schuster, 948 F.2d 313 (7th Cir. 1991).

7th Circuit upholds firearms enhancement despite acquittal on firearms charge. (755) The 7th Circuit affirmed an enhancement under section 2D1.1(b) for possession of a firearm during a drug trafficking crime even though defendant was acquitted of possessing the weapon during a drug trafficking crime. The fact that the jury did not find him guilty beyond a reasonable doubt did not prevent the court from finding the facts under the guidelines by a preponderance of the evidence. The court rejected defendant’s contention that his possession was analogous to an unloaded hunting rifle in the closet for which an enhancement is improper under application note 3 to section 2D1.1(b). Although there was testimony that defendant used the gun for private purposes such as shooting pigeons, the district court found that the semi-automatic pistol and loaded clip found in defendant’s van were readily accessible and available to defendant during the cocaine transaction which took place in the van. U.S. v. Welch, 945 F.2d 1378 (7th Cir. 1991).

7th Circuit affirms consideration of related conduct based on testimony of government witnesses. (755) Defendant argued that the district court erred in including in the calculation of his offense level cocaine from transactions which the court found to be “related” to the offense of conviction based on the testimony of two “biased” witnesses. The 7th Circuit rejected this contention, since it is the district court’s prerogative to assess the credibility of the witnesses and credit their testimony over defendant’s testimony. The district court was aware that the witnesses had entered into agreements with the government which required their testimony at defendant’s trial. The 7th Circuit also rejected defendant’s argument that the burden of proof for determining relevant conduct should be higher, finding no merit in the contention that the guidelines are ambiguous as to what constitutes relevant conduct. U.S. v. Caicedo, 937 F.2d 1227 (7th Cir. 1991).

7th Circuit upholds leadership enhancement by a preponderance of evidence. (755) The 7th Circuit rejected defendant’s contention that the government needed to prove he was a manager of a drug conspiracy by proof beyond a reasonable doubt, finding that the appropriate standard is a preponderance of the evidence. Reviewing this issue under the clearly erroneous standard, the court upheld the district court’s findings. Defendant received the greatest share of the profits, he recruited an individual to procure a loan to purchase methamphetamine for distribution, he directed another member of the conspiracy, he asserted to an undercover agent that he could obtain methamphetamine directly from the “cooker,” and he assured the undercover agent that he would “corner the [local] methamphetamine market.” U.S. v. Spillman, 924 F.2d 721 (7th Cir. 1991).

7th Circuit finds district court did not improperly shift burden of proof to defendant concerning possession of weapon. (755) Defendant contended that the district court improperly shifted the burden of proof of non-possession of a weapon to the defendant by having defendant’s counsel address his objections to the application of the enhancement provision before the government proceeded. The 7th Circuit rejected this argument. There was no objection by the defendant at the sentencing hearing to this procedure. Moreover, there was nothing in the record to reflect that the burden of proof had been shifted away from the government. Instead, the record reflected that the judge permitted both sides to present evidence and make their arguments. “Even if it would have been a preferred procedure to have the government make its arguments first in keeping with the fact that it had the burden of proving possession, the defendant has not demonstrated that he suffered any prejudice as a result of the district court’s chosen procedure for handling objections to the presentence report.” U.S. v. Armond, 920 F.2d 480 (7th Cir. 1990).

7th Circuit holds that government has burden of showing applicability of career offender enhancement. (755) The government introduced evidence that the defendant had been convicted of robbery on three separate occasions. The district court found the robbery convictions did not result from relating cases, and then sentenced him as a career offender. The 7th Circuit affirmed, holding that the procedures applied by the district court fully recognized that “the government had the burden of proving the applicability of guidelines sections that would enhance the offense level.” It also found that the government had established by preponderance of the evidence that the robbery convictions should be counted separately. Thus, defendant was properly sentenced as a career offender. U.S. v. Williams, 905 F.2d 217 (8th Cir. 1990).

7th Circuit holds that requiring judge to determine the amount of drugs does not violate the Constitution. (755) Defendant argued that U.S.S.G. 2D1.1 creates an “element of the offense” under 21 U.S.C. § 846 which must be proven beyond a reasonable doubt. Under § 2D1.1, sentencing for violation of § 846 is largely determined by the quantity and type of drugs involved. The judge is required to make a finding of the approximate amount of drugs in order to apply the guidelines. Defendant argued that the amount was an “element” of § 846 which must be proved beyond a reasonable doubt. The 7th Circuit rejected the argument, noting that although “there are Constitutional limits upon the government’s power to dictate the burden of proof merely by manipulating the definitional elements of the offense,” the guidelines did not change the elements for conviction under § 846. Therefore § 2D1.1 is constitutional as applied to 21 U.S.C. § 846. U.S. v. Reynolds, 900 F.2d 1000 (7th Cir. 1990).

8th Circuit upholds preponderance standard for sentencing enhancements. (755) After correctly establishing defendant’s base offense level under the guidelines, the district court held that defendant was eligible for six sentencing enhancements that raised his offense level from 26 to 43. Defendant argued that because the enhancements had a disproportionate impact on his sentence, clear and convincing evidence was required. The Eighth Circuit rejected the argument. In U.S. v. Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009), the court decided that due process never requires applying more than a preponderance of the evidence standard for finding sentencing factors, even where the fact-finding has “an extremely disproportionate impact on the defendant’s advisory guidelines range.” The panel also ruled that it did not violate the 6th Amendment for a sentencing court to base its sentence on facts that it finds to be true, just because they may later be used to support a conviction in a state court. U.S. v. Lee, 625 F.3d 1030 (8th Cir. 2010).

8th Circuit says wife did not meet burden to show minimal role in descrambler manufacturing. (755) Defendant and her husband were convicted of manufacturing cable TV descramblers intended for unauthorized interception of cable signals. She argued that the district court erred in refusing to reduce her base offense level for being a minimal participant in the conspiracy and in assisting an unauthorized interception of cable signals. The Eighth Circuit rejected her argument, noting that the defendant bears the burden of proving that a reduction for role in the offense applies, and the defendant failed to meet that burden here. Defendant performed many of the same tasks as her husband, operating equipment, shipping and billing and hiring and paying employees. In U.S. v. Denton, 434 F.3d 1104, 1115 (8th Cir. 2006) the court held that a defendant “cannot be considered a minimal participant [where she] has ‘knowledge of the scope and structure of the conspiracy and observed the activities of others in the conspiracy.'” U.S. v. Sweeney, 611 F.3d 459 (8th Cir. 2010).

8th Circuit says defendant failed to show that structured funds “were the proceeds of lawful activity.” (755) Defendant argued that she was entitled to a reduction in her base offense level for currency structuring because the currency funds “were the proceeds of lawful activity.” See § 2S1.3(b)(3)(C). The Eighth Circuit rejected the argument, noting that the defendant “bears the burden of proving a reduction applies.” U.S. v. Carasa-Vargas, 420 F.3d 733, 737 (8th Cir. 2005). The court found that the district court did not clearly err in concluding that there was insufficient evidence regarding the source of the funds used in the currency structuring offenses. U.S. v. Sweeney, 611 F.3d 459 (8th Cir. 2010).

8th Circuit rejects higher standard of proof for relevant conduct that significantly increases sentence. (755) Defendants pled guilty to conspiring to distribute more than 500 grams of methamphetamine, but the district court found them responsible for more than 15 kilograms. Defendants argued that the district court violated due process when it refused to require proof of drug quantity facts by clear and convincing evidence. Previous Eighth Circuit cases have adopted (although never actually applied) the Third Circuit’s view in U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990) that due process may require a heightened standard of proof for “extremely disproportionate” sentencing factors. The Eighth Circuit noted that these cases were based on a flawed reading of Supreme Court precedent, and in any event, were made obsolete by Booker. Booker granted sentencing judges far more discretion to impose sentences outside the applicable guideline range. This change eliminated any due process concern requiring a heightened standard of proof for fact finding that has an “extremely disproportionate” impact on the defendant’s advisory sentencing range. U.S. v. Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009).

8th Circuit holds ACCA increase not so extreme as to require higher evidentiary standard of proof. (755) Defendant was convicted of being a felon in possession of a firearm. The district court found that defendant had four prior convictions for violent felonies, and was subject to the enhanced sentencing provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e). His guideline range before applying the ACCA enhancements was 41-51 months; after applying the enhancements, his guideline range was 188-235 months. Defendant argued that because of the large sentence increase, due process required the three predicate violent felonies to be proven by an evidentiary standard higher than a preponderance of the evidence. The Eighth Circuit found that the case was not so “extreme” that due process required the higher standard of proof. U.S. v. Boaz, 558 F.3d 800 (8th Cir. 2009).

8th Circuit says government had burden to prove prior murder was not self-defense. (755) Defendant was convicted of two counts of assault with a deadly weapon. In departing upward, the district court relied heavily on a dismissed murder charge, as permitted by §5K2.21. Defendant presented evidence that she acted in self-defense, but the district judge rejected the argument without making any findings. The Eighth Circuit reversed, ruling that once the issue is called into question the government bears the burden of proving an absence of self-defense by a preponderance of the evidence. This trial rule also applies at sentencing. From the record, it was unclear whether the court found that the government proved a lack of self-defense, or that defendant failed to show she acted in self-defense. U.S. v. Azure, 536 F.3d 922 (8th Cir. 2008).

8th Circuit says applying sexual abuse cross reference did not require clear and convincing evidence. (755) Defendant was convicted of sexual abuse of a minor, in violation of 18 U.S.C. § 2243(a). He was acquitted of engaging or attempting to engage in a sexual act with a person who was physically incapable of consenting, in violation of 18 U.S.C. § 2242(2). The sexual abuse of a minor offense would normally result in a base offense level of 18 under § 2A3.2(c). However, the court applied a cross-reference to § 2A3.1, which applies if conduct proscribed under § 2242 is part of the offense. This raised his offense level to 30. Defendant was acquitted of the charges under § 2242, but the district court found that the minor’s inebriated state made her incapable of appraising the nature of the sexual act and physically incapable of consenting. The Eighth Circuit upheld the application of the cross-reference, rejecting defendant’s claim that the increase was so great as to require clear and convincing evidence of the existence of the conduct relied upon to enhance the sentence. The increase was not so extreme as to require the higher standard of proof. U.S. v. Tyndall, 521 F.3d 877 (8th Cir. 2008).

8th Circuit holds that court erred in requiring enhancements to be proven beyond a reasonable doubt. (755) The government argued that the district court erred when it ruled that it could not enhance defendant’s sentence under § 2B1.1 (b)(1)(C) and § 2B5.1(b)(5) because the facts supporting each respective enhancement were not alleged in the indictment. The Eighth Circuit agreed that this was error. The court also erred in requiring the enhancement to be proven beyond a reasonable doubt. In most cases, § 6A1.3 requires sentencing courts to apply guidelines enhancements that are proven by a preponderance of the evidence. The district court’s failure to do so here resulted in an incorrect advisory guidelines calculation. The error was not harmless, given the difference between the PSR’s recommended guidelines range and the range calculated by the district court. U.S. v. Okai, 454 F.3d 848 (8th Cir. 2006).

8th Circuit holds that previous drug transactions were relevant conduct. (755) Defendant argued that the court erred in including drug quantities associated with events that occurred in 1994 and 1996, several years before the conspiracy to which he pled guilty. These events included a 1994 incident in which defendant purchased several ounces of cocaine and crack from an undercover informant, a 1996 incident in which defendant sold several ounces of crack to an Indiana undercover officer, and a separate 1996 incident in Indiana in which defendant was discovered in possession of more than a pound of crack. The Eighth Circuit held that the district court did not err in including the 1994 and 1996 events as relevant conduct. Defendant was a longtime cocaine dealer, interrupted only by his occasional stays in prison. While these events were separated temporally from the charged conduct, there was evidence to show that defendant was engaged in a career of drug dealing going back to at least 1994. These events in question were close to the charged conduct in both their similarity and their regularity. The sentencing increase caused by court’s consideration of the relevant conduct was not sufficient to require a heightened standard of proof. If the relevant conduct were excluded, defendant would have a sentencing range of 235-293 months. The increase to a range of 360 months to life was not so significant as to raise due process concerns. U.S. v. Anderson, 243 F.3d 478 (8th Cir. 2001).

8th Circuit says four-fold sentence increase did not require higher standard of proof. (755) Courts generally require facts relied upon at sentencing to be proven by a preponderance of the evidence. However, some courts have suggested that when a district court’s consideration of relevant conduct results in a drastic increase in a sentence, the preponderance evidence may not satisfy due process. In U.S. v. Galloway, 976 F.3d 414 (8th Cir. 1992) (en banc), the Eighth Circuit held that a three-fold increase in the defendant’s sentencing range, based on relevant conduct evidence, was not so extreme as to raise due process concerns and require a heightened standard of proof. In this case, the Eighth Circuit held that a four-fold sentence increase based on relevant conduct did not require a heightened standard of proof. The median of defendant’s initial sentencing range was 30 months. Although the PSR and the government advocated a 210-262 month range, the district court found defendant’s final sentencing range was 121-151 months. The court imposed a 121-month sentence. This was only a four-fold increase, rather than an eight-fold increase, as claimed by defendant. U.S. v. Alvarez, 168 F.3d 1084 (8th Cir. 1999).

8th Circuit rules defendant has burden of proving crimes were part of common scheme. (755) Defendant was sentenced as a career offender based on three prior robberies. He argued that the government should have the burden of proving that the acts underlying a defendant’s prior unconsolidated convictions were not committed as part of a single common plan or scheme. The Eighth Circuit ruled that defendant has the burden of proving prior crimes are part of a common scheme or plan. The government merely must show that defendant has two prior convictions for crimes of violence or controlled substance offenses. U.S. v. Cowart, 90 F.3d 154 (6th Cir. 1996).

8th Circuit says drug quantity finding did not require clear and convincing evidence. (755) The district court found that defendant was responsible for between 15 and 50 kilograms of cocaine. Defendant insisted that he had distributed no more than eight pounds, about 3.5 kilograms. He argued that because drug quantity had an extreme impact on his sentence, due process required that the amount of cocaine be proved by clear and convincing evidence. The Eighth Circuit rejected his claim. Although there may be cases where a sentencing factor has such a disproportionate effect on a sentence that due process requires a higher burden of proof, this was not such a case. U.S. v. Campos, 87 F.3d 261 (8th Cir. 1996).

8th Circuit says drug evidence met heightened standard of proof. (755) Defendant agreed to sell undercover officers two ounces of cocaine. At sentencing, the district court held him accountable for 1578 grams of cocaine and 542 grams of cocaine base from a safe located in an apartment to which defendant had keys. He argued that the court should have used a heightened standard of proof at sentencing, because the drugs found in the safe increased his base offense level from 16 to 36 and resulted in a nine-fold increase in sentencing range. The Eighth Circuit affirmed, since even if this was a case requiring a heightened standard of proof, the evidence met such standard. Defendant possessed the key to the apartment, had visited the apartment just prior to the drug transaction, and the occupant of the apartment identified defendant as the individual who placed the safe there. The drugs found in the safe were reasonably foreseeable amounts and types. U.S. v. Murray, 67 F.3d 687 (8th Cir. 1995).

8th Circuit rejects need for heightened standard of proof for four-fold increase in drug quantity. (755) Defendant argued that his four-fold increase in drug quantity, which was based on the testimony of crack addicts, convicted felons, and co-defendants, should be supported by clear and convincing evidence. The Eighth Circuit held that the heightened standard of proof was not necessary. The drug quantity determination was supported by evidence introduced at trial to prove the conspiracy count. Moreover, the determination was directly supported by testimony from witnesses who were subjected to cross-examination at trial. U.S. v. Thompson, 51 F.3d 122 (8th Cir. 1995).

8th Circuit rejects heightened standard of proof where there was no uncharged relevant conduct. (755) Defendant argued that the district court’s drug quantity determination should have been based on a heightened standard of proof. The 8th Circuit found that the case did not implicate a heightened standard of proof because it did not involve any uncharged relevant conduct. The district court merely made a quantity determination under § 2D1.4(a). U.S. v. McCormick, 29 F.3d 352 (8th Cir. 1994).

8th Circuit reaffirms that drug quantity is not an element of conspiracy offense. (755) The 8th Circuit reaffirmed that the quantity of drugs involved in a conspiracy is not an essential element of the offense, and therefore the government need not prove drug quantity beyond a reasonable doubt. U.S. v. Sales, 25 F.3d 709 (8th Cir. 1994), abrogated on other grounds by U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000).

8th Circuit says that four-fold increase in sentence does not trigger heightened standard of proof. (755) Defendant argued that the district court should have applied a clear and convincing standard of proof on the issue of drug quantity, since it multiplied his potential sentence by four. The 8th Circuit held that the heightened standard of proof was unnecessary. First, defendant was convicted of conspiracy, an offense that necessarily involved quantities other than the 2.91 grams involved in his distribution counts. Moreover, a four-fold increase in sentence is not large enough to require the clear and convincing evidence standard. U.S. v. Pugh, 25 F.3d 669 (8th Cir. 1994).

8th Circuit holds preponderance of evidence standard does not violate due process. (755) Defendant argued that the district court erred in using the preponderance of the evidence standard instead of clear and convincing evidence in determining the amount of drugs involved in his conspiracy. The 8th Circuit found no due process violation. Cases cited by defendant suggesting that a higher burden of proof is required where a sentencing factor has a disproportionate effect on the sentence only addressed uncharged relevant conduct findings under section 1B1.3. In this case, the district court simply made a quantity determination under section 2D1.1 for defendant’s conspiracy conviction. There was no due process violation because defendant was given notice of the drug conspiracy charge and defended against that charge. U.S. v. Behler, 14 F.3d 1264 (8th Cir. 1994).

8th Circuit upholds converting seized money to crack quantity based on preponderance of evidence. (755) Defendant objected to the district court’s conversion of cash found on defendant’s person when he was arrested into the quantity of crack it would represent. The 8th Circuit affirmed that the preponderance of the evidence standard was appropriate for ascertaining whether the money represented the proceeds of crack sales. The factor did not result in such a large sentencing increase as to support a higher burden of proof under U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990). Defendant’s unemployed status, his sales of crack to an undercover office, the intermingling of the marked bills with the other cash seized, and his possession of additional crack when arrested all supported the district court’s decision. U.S. v. Echols, 2 F.3d 849 (8th Cir 1993).

8th Circuit reaffirms that jury does not determine drug quantity. (755) The 8th Circuit upheld the district court’s refusal to instruct the jury to determine the quantity of cocaine involved in defendant’s offense. Quantity is not an essential element of the offense, but is a sentencing factor for the judge to determine by a preponderance of the evidence. U.S. v. Casas, 999 F.2d 1225 (8th Cir. 1993).

8th Circuit rejects heightened standard of proof where relevant conduct increased guidelines from six to 16 months. (755) The district court’s decision to consider certain relevant conduct increased defendant’s base offense level by six and elevated his sentencing range from zero to six months to 10 to 16 months. Relying on U.S. v. Galloway, 976 F.2d 414 (8th Cir. 1992) (en banc), the 8th Circuit rejected defendant’s claim that this increase required a standard of proof more stringent than a preponderance of the evidence. U.S. v. Coleman, 990 F.2d 419 (8th Cir. 1993).

8th Circuit finds defendant inadvertently met government’s burden of proof for enhancement. (755) Defendant argued that the government did not meet its burden of proving certain guideline enhancements. At sentencing, the court did not require the government to present evidence in support of the enhancements, instead giving defendant the opportunity to object. Defendant did not object to this procedure. The 8th Circuit affirmed, holding that the burden of proof which rested on the government was inadvertently met by defendant himself. Defendant called as a witness the probation officer, who testified that the factual statements in the presentence report were accurate. Defendant also asked questions about the victim’s written statement, which indicated that defendant considered the statement as validly made by the victim. There was no functional difference between this procedure and requiring the government to establish the truth of the allegations in the presentence report. U.S. v. Merritt, 982 F.2d 305 (8th Cir. 1992).

8th Circuit affirms enhancement for use of a dangerous weapon despite acquittal on similar charge. (755) The 8th Circuit held that defendant’s acquittal for use of a firearm did not prohibit an enhancement under section 2B3.1(b)(2) for use of a dangerous weapon. Particular facts for sentencing purposes need only be proven by a preponderance of the evidence, which is a lower standard than required for a criminal conviction. U.S. v. Johnson, 962 F.2d 1308 (8th Cir. 1992).

8th Circuit upholds consideration of drugs involved in acquitted counts. (755) The 8th Circuit rejected defendant’s claim that he should not be held accountable for cocaine related to circumstances charged in counts of which he was acquitted. A verdict of acquittal only demonstrates lack of proof beyond a reasonable doubt and does not establish innocence. The facts underlying an acquittal may be considered by the district court for sentencing purposes when those facts appear to be sufficiently reliable, and the government does not need to prove those facts beyond a reasonable doubt. U.S. v. Olderbak, 961 F.2d 756 (8th Cir. 1992).

8th Circuit affirms that district court applied proper standard of proof. (755) The 8th Circuit rejected defendant’s claim that the district court misconstrued the government’s burden of proof at sentencing as being “some evidence” rather than “a preponderance of the evidence.” In an effort to save time, the district court told the government it only needed to introduce evidence of defendant’s involvement with enough other people to support the presentence report’s role in the offense enhancement. After hearing testimony about several people, the district court found “sufficient evidence” supported enhancement of defendant’s offense level for his organizational role. Although the district court did not state the standard it was applying, the appellate court was satisfied that it applied the preponderance standard. Even if it was not, the court’s result would have been the same under the preponderance standard. U.S. v. Morton, 957 F.2d 577 (8th Cir. 1992).

8th Circuit rejects claim that guidelines violate due process by failing to provide a standard of proof. (755) Defendant claimed that the guidelines violated his Fifth Amendment due process rights by failing to provide a standard of proof for the district court to apply in finding facts upon which a sentence is based. He also contended that the district court improperly failed to apply any express standard of proof. The 8th Circuit rejected these challenges. No particular standard of proof for fact-finding is required at the sentencing phase. The sentencing judge need only make findings sufficient to provide for a meaningful appeal. Here there was more than sufficient evidence to support the district court’s findings. The appellate court summarily rejected defendant’s claim that the guidelines unduly limit the sentencing judge’s discretion and improperly grant discretion to the prosecutor. U.S. v. Abdullah, 947 F.2d 306 (8th Cir. 1991).

8th Circuit considers whether uncharged conduct must be proven by clear and convincing evidence to justify large adjustment. (755) The district court’s consideration of uncharged conduct resulted in an 18-level increase in defendant’s base offense level, and a seven-fold increase in his sentencing range. The 8th Circuit considered whether in such an extreme situation, due process might require the uncharged conduct be proven by a more stringent standard than a mere preponderance of the evidence, as the 3rd Circuit recently held in U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990). The court found that it need not decide this issue, since the government failed to meet the preponderance of the evidence standard. However, it did not “foreclose the possibility that in an exceptional case, such as this one, the clear and convincing standard adopted by our sister circuit might apply.” U.S. v. Townley, 929 F.2d 365 (8th Cir. 1991).

8th Circuit holds preponderance of the evidence standard applies at sentencing hearings. (755) The government contended that the district court improperly applied the “clear and convincing evidence” standard of proof in making findings of fact in sentencing defendant. The 8th Circuit rejected this argument. Although the district court stated that the government must establish the number of marijuana plants involved “by convincing evidence,” the appellate court found that the district court did not apply the “clear and convincing” standard. It further held that the preponderance of the evidence standard of proof is to be applied in sentencing determinations. U.S. v. Malbrough, 922 F.2d 458 (8th Cir. 1990).

8th Circuit upholds use of preponderance of the evidence standard at sentencing hearing. (755) The 8th Circuit rejected defendant’s argument that it had recently changed the burden of proof that the government must bear from a preponderance of the evidence to clear and convincing evidence. The court had merely noted in a previous case that a district court did not err in using the higher standard of proof to make factual findings. U.S. v. Nassif, 921 F.2d 168 (8th Cir. 1990).

8th Circuit finds no due process violation in application of guidelines. (755) Defendant had originally been prosecuted in state court, but the charges were dropped, and he was eventually convicted in federal court for the same conduct. He asserted that an Assistant U.S. Attorney assigned to the Drug Task Force served a dual role in the state prosecutor’s office, and that the case against him in state court was dismissed solely to gain a tactical advantage. The 8th Circuit rejected this argument. The fact that the federal government prosecutes a case in federal court that could have been prosecuted in state court does not violate due process. Nor does the fact that defendant was subject to a harsher sentence in federal court. Moreover, the fact that the prosecutor was spared from having to prove beyond a reasonable doubt crimes that were considered in setting his sentence did not violate due process. U.S. v. Turpin, 920 F.2d 1377 (8th Cir. 1990).

8th Circuit affirms that defendant did not possess firearms for hunting or collection purposes. (755) Defendant pled guilty to being an unlawful user of marijuana in possession of firearms. He argued that the district court erred in refusing to reduce his offense level under guideline § 2K2.1(b)(1) because he possessed the firearms for the lawful purpose of hunting or collection. The 8th Circuit rejected defendant’s argument that it was error to place the burden of proving that he possessed the firearms for sport or collection on him. A defendant has the burden of proving the applicability of any guideline section which would reduce the offense level. It affirmed the district court’s decision, finding that the number and type of firearms, the quantity of ammunition, and the presence of explosives strongly supported the district court’s inference that at the time of defendant’s arrest, he and his friends were not on an ordinary hunting trip and refuted defendant’s claim that he possessed the firearms as collector’s items. U.S. v. Dinges, 917 F.2d 1133 (8th Cir. 1990).

8th Circuit holds that factual findings relevant to sentencing need only be proved by a preponderance. (755) The 8th Circuit rejected defendant’s argument that under the sentencing guidelines, the factual findings relevant to sentencing must be proved beyond a reasonable doubt. The court also rejected the argument that the sentencing guidelines were unconstitutional on their face because they failed to specify any particular burden of proof with respect to such factual findings, noting that such standard was adequately supplied by decisional law. U.S. v. Dyer, 910 F.2d 530 (8th Cir. 1990).

8th Circuit rejects argument that factual determinations made at sentencing be proved beyond a reasonable doubt. (755) Following the Supreme Court’s decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the 8th Circuit rejected defendant’s argument that due process requires factual determinations made at sentencing to be proved beyond a reasonable doubt, noting that the Constitution does not impose “a particular standard of proof for factual determinations at sentencing hearings.” Morphew v. U.S., 909 F.2d 1143 (8th Cir. 1990).

8th Circuit says it has not adopted preponderance of the evidence as standard for proving facts at sentencing. (755) The 8th Circuit rejected defendant’s contention that it had adopted the “preponderance of the evidence” standard for proving facts at sentencing. Although the court noted that it had approved of the standard in U.S. v. Sleet, 893 F.2d 94 (8th Cir. 1989), it wrote that such approval was only a recognition that the Supreme Court had ruled such a standard does not violate due process. The court held that “it is sufficient that the district court’s findings are ‘adequate for us to make a meaningful review.’” (citing U.S. v. Luster, 896 F.2d 1122 (8th Cir. 1990). U.S. v. Weaver, 906 F.2d 359 (8th Cir. 1990).

8th Circuit rules that guidelines do not mandate a particular standard of proof at sentencing. (755) Quoting McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986), the 8th Circuit noted that sentencing courts “have traditionally heard evidence and found facts without any prescribed burden of proof at all.” The court added that the Supreme Court has “refused to constitutionalize the burden of proof necessary at sentencing proceedings.” Thus a district court “may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). Accordingly the court upheld the district court’s use of the “clear and convincing” standard here. U.S. v. Wayne, 903 F.2d 1188 (8th Cir. 1990).

8th Circuit upholds “reasonable certainty” standard of proof at sentencing. (755) At sentencing, the District Court required the government to prove the quantity of drugs possessed by defendant by “satisfactory and convincing evidence” which the court equated with a standard of “reasonable certainty.” The 8th Circuit held this standard of proof was “more than sufficient.” The court also suggested that it “may not be incumbent on a district court to articulate any standard of proof when finding facts at a Guidelines sentencing hearing,” citing its earlier decision in U.S. v. Ehret, 885 F.2d 441, 444 (8th Cir. 1989). U.S. v. Winfrey, 900 F.2d 1225 (8th Cir. 1990).

8th Circuit upholds use of preponderance of evidence standard in considering uncharged drug transactions. (755) The 8th Circuit ruled that nothing in the guidelines suggest that the commission intended to require trial judges to articulate any particular standard of proof when finding facts in sentencing proceedings. Under guideline § 6A1.3(a) the court may consider “relevant information” without regard to its admissibility at trial. The court held that the preponderance standard did not violate due process. U.S. v. Gooden, 892 F.2d 725 (8th Cir. 1989).

8th Circuit rejects argument that sentencing facts must be found by a jury beyond a reasonable doubt. (755) Defendant argued that facts such as his possession of a firearm and his criminal record should only have been used to enhance his sentence under the guidelines if the jury had made findings that those facts existed beyond a reasonable doubt. The 8th Circuit disagreed, holding that due process does not require a jury trial on each fact that results in an increase in a sentence, nor does it impose a particular standard of proof. U.S. v. Luster, 889 F.2d 1523 (6th Cir. 1989).

8th Circuit rules district court’s use of clear and convincing standard of proof was proper. (755) In sentencing a drug defendant, the district court placed the burden of proof on the government and applied a “clear and convincing standard” without deciding whether the lower “preponderance of the evidence” standard would be proper, or whether any standard at all was required. The 8th Circuit affirmed the district court’s procedure. U.S. v. Ehret, 885 F.2d 441 (8th Cir. 1989).

9th Circuit upholds use of preponderance standard for fraud sentence below guideline range. (755) The district court calculated the loss from defendants’ fraud using a preponderance-of-the-evidence standard. That calculation, and other adjustments, resulted in an offense level of 121 to 151 months, but pursuant to the parties’ stipulation, the court imposed a sentence of 60 months. Defendants argued that the district court should have used a clear-and-convincing evidence standard to calculate the loss. The Ninth Circuit held that the loss calculation did not result in an extremely disproportionate sentence and therefore the court did not err in using a preponderance standard. U.S. v. Ali, 620 F.3d 1062 (9th Cir. 2010).

9th Circuit requires clear and convincing proof to use murder guideline in immigration offense. (755) Defendant was convicted of transportation of illegal aliens resulting in death, in violation of 8 U.S.C. § 1324(a)(1). If the district court had used the guideline for that offense, 2L1.1, defendant would have had an offense level of 168 to 210 months. Section 2L1.1 provides, however, that if the death of an alien constituted murder as defined under federal law, the court should use the murder guideline. The district court followed the reference, used the murder guideline, and sentenced defendant to life imprisonment. The Ninth Circuit held that a court could not follow the cross-reference in § 2L1.1 unless it found that defendant acted with malice aforethought. It then held that because the finding of malice aforethought had a disproportionate impact on the sentence imposed, the district court was required to make that finding by clear and convincing evidence. U.S. v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010).

9th Circuit reiterates that preponderance standard was sufficient to calculate loss caused by conspiracy. (755) Defendants were convicted of running a fraudulent investment scheme. At sentencing, the district court found that the amount of loss caused by defendants’ scheme resulted in a 22-level increase in their offense level. Defendants argued that because the loss calculation had a disproportionate effect on defendants’ sentence, the district court was required to find it by clear and convincing evidence. The Ninth Circuit disagreed, reiterating its prior decisions holding that sentencing determinations related to the extent of a criminal conspiracy need not be established by clear and convincing evidence; instead, such losses need only be proved by a preponderance of the evidence. U.S. v. Treadwell, 593 F.3d 990 (9th Cir. 2010).

9th Circuit reiterates that preponderance is proper standard for proving loss. (755) Defendant, convicted of securities fraud, argued that the district court must apply the clear-and-convincing evidence standard when determining the loss caused by his fraud. The Ninth Circuit held that when calculating the loss caused by the conspiracy underlying the offense of conviction, the district court need not employ the clear-and-convincing evidence standard. Instead, facts underlying disputed loss enhancements need only be found by a preponderance of the evidence. U.S. v. Berger, 587 F.3d 1038 (9th Cir. 2009).

9th Circuit says family exception in alien smuggling enhancement does not shift burden. (755) The Guideline for illegal entry after deportation, § 2L1.2(b), provides for a 16-level increase in offense level for a defendant who was deported after being convicted of an “alien smuggling offense.” The term “alien smuggling offense” is defined to include offenses defined by 8 U.S.C. 1342(a)(1)(A) or (2), unless the defendant can affirmatively show that he committed the offense to assist a family member in committing an immigration offense. The Ninth Circuit held that the definition of “alien smuggling offense” did not impermissibly shift the burden to the defendant to disprove the applicability of the enhancement. U.S. v. Guzman-Mata, 579 F.3d 1065 (9th Cir. 2009).

9th Circuit holds defendant must prove lack of knowledge to avoid prison for securities crime. (755) A provision of the securities laws, 15 U.S.C. § 78ff(a), provides that a person convicted of a violation of those laws shall not be subject to imprisonment “if he proves that he had no knowledge of such rule or regulation.” Defendant was convicted of willfully falsifying the books and records of the company where she worked, in violation of 15 U.S.C. § 78m(b)(5). The Ninth Circuit held that under § 78ff(a), a defendant convicted of a securities law violation must prove by a preponderance of the evidence that she was unaware of the substance of a statute or SEC regulation, not that she was unaware of the specific rule that she violated. U.S. v. Reyes, 577 F.3d 1069 (9th Cir. 2009).

9th Circuit finds that preponderance standard applies to finding of prior conviction. (755) At defendant’s sentencing for importation of methamphetamine, the district court found that he had a prior misdemeanor conviction. Because that misdemeanor constituted defendant’s second conviction, he had two criminal history points and was ineligible for the safety valve provision in 18 U.S.C. § 3553(f), which may have allowed for a sentence below the mandatory 120-month sentence. On appeal, defendant argued that the district court should have used a clear and convincing standard to find the misdemeanor conviction because that conviction resulted in an increase in his sentence. The Ninth Circuit held that because defendant’s sentence resulted from the statutory mandatory minimum, the district court properly used the preponderance standard to find that he had a prior conviction. The court held that even if the clear and convincing standard should have applied, the district court did not err. U.S. v. Felix, 561 F.3d 1036 (9th Cir. 2009).

9th Circuit upholds placing burden on defendant to show conviction was subject to diversion. (755) At sentencing, the probation office produced a computer printout showing that defendant had a prior misdemeanor conviction. Defendant argued that the charge underlying the conviction was subject to diversion, that he had successfully completed diversion, and that the offense should be expunged. The Ninth Circuit held that once the government submitted evidence sufficient to establish that defendant had the prior conviction, the district court properly placed the burden on defendant to show that his prior conviction should not be counted because it was subject to a diversion agreement. U.S. v. Felix, 561 F.3d 1036 (9th Cir. 2009).

9th Circuit finds no plain error in use of preponderance standard to impose three enhancements. (755) At defendant’s sentencing on his conviction for bank fraud, the district court increased defendant’s offense level a total of eight levels for the amount of loss, number of victims, and defendant’s role in the offense. Defendant argued that the district court erred in using a preponderance-of-the-evidence standard to impose those enhancements because they had a disproportionate effect on his offense level. Reviewing for plain error because defendant did not raise that claim in the district court, the Ninth Circuit held that the district court had not erred in using a preponderance standard. It explained that the enhancement based on the number of victims did not implicate a higher standard because it was based on criminal activity for which the defendant had been convicted; that the jury had found beyond a reasonable doubt that defendant was an organizer or leader; and that the enhancement for the amount of loss did not have an extremely disproportionate effect on the sentence. U.S. v. Armstead, 552 F.3d 769 (9th Cir. 2008).

9th Circuit finds that preponderance standard applies when enhancement is based on charged conduct. (755) An indictment charged defendant with a fraudulent scheme that raised $37 million, and the jury found defendant guilty of the conduct alleged in the indictment. At sentencing, the district court found that the loss caused by defendant’s offense was more than $20 million. On appeal, defendant argued that the district court erred in using a preponderance-of-the-evidence standard to calculate loss and that the increase in offense level caused by the loss adjustment required use of a clear-and-convincing standard. The Ninth Circuit held that because the loss calculation was based on charged conduct, the district court did not commit plain error in setting the loss at $20 million. U.S. v. Garro, 517 F.3d 1163 (9th Cir. 2008).

9th Circuit requires clear-and-convincing proof for enhancement for endangering aircraft. (755) The guideline for the offense of interfering with a flight crew, § 2A5.2, sets a base offense level of nine and requires a nine-level enhancement if the offense recklessly endangered the safety of the aircraft. The Ninth Circuit held that facts supporting the application of the nine-level enhancement must be proved by clear and convincing evidence because the enhancement more than doubles the sentence that the defendant otherwise would have received. The court held, however, that failure to apply the clear-and-convincing standard was not plain error. U.S. v. Gonzalez, 492 F.3d 1031 (9th Cir. 2007).

9th Circuit holds that aggravated felony need not be proven beyond a reasonable doubt. (755) Defendant, convicted of illegal reentry after deportation, argued that the government should have to prove his prior aggravated felony conviction beyond a reasonable doubt because it resulted in a tenfold increase in the statutory maximum sentence under 8 U.S.C. § 1326(b)(2). The Ninth Circuit held that because the prior aggravated felony is a sentencing enhancement, it need not be proved beyond a reasonable doubt. U.S. v. Flores-Sanchez, 477 F.3d 1089 (9th Cir. 2007).

9th Circuit says clear and convincing proof is required only if enhancement causes extremely disproportionate effect on sentence as a whole. (755) The bank robbery guideline, § 2B3.1(2)(C), requires a five-level enhancement in offense level if the defendant possessed a gun during the offense. At defendant’s sentencing, application of that enhancement would have raised defendant’s offense level from 19 to 24 and increased his sentencing range from 57-71 months to 92-115 months. The district court held that because § 2B3.1(2)(C) required a five-level enhancement, the government had to prove that defendant possessed a firearm by clear and convincing evidence. The Ninth Circuit held that the district court erred in looking only to the amount of the enhancement in holding that the government had to meet the clear-and-convincing standard. Instead, the court held, a district court should not require clear and convincing proof for an enhancement unless it has an extremely disproportionate effect on the sentence as a whole. Because the enhancement would not have an extremely disproportionate effect, the government had to establish defendant’s possession of the firearm by a preponderance of the evidence. U.S. v. Pike, 473 F.3d 1053 (9th Cir. 2007).

9th Circuit holds that clear-and-convincing proof required for post-Booker disproportionate enhancements. (755) At defendant’s sentencing for manufacturing methamphetamine, the district court applied an enhancement that resulted in a 15-level increase in defendant’s offense level. The Ninth Circuit held that the clear-and-convincing standard of proof applies when an enhancement has an extremely disproportionate effect on the defendant’s sentence, even though the enhancement now results in the calculation of an advisory rather than a mandatory guidelines range. U.S. v. Staten, 466 F.3d 708 (9th Cir. 2006).

9th Circuit says clear-and-convincing standard applies to cross-reference that results in at least a 105-month sentence increase. (755) Defendant was convicted of a Hobbs Act robbery that involved the murder of the victim. In a special interrogatory, the jury found that the government had failed to prove beyond a reasonable doubt that defendant murdered the victim. At sentencing, however, the court found by clear and convincing evidence that defendant committed the murder. On that basis, the court used the guideline for first-degree murder, § 2A1.1, to determine defendant’s sentence. The Ninth Circuit found no error in using the first-degree murder guideline, but it held that because the use of the first-degree murder guideline increased defendant’s sentencing range by between 105 and 203 months, the court was required to use the clear-and-convincing evidence standard of proof. U.S. v. Lynch, 437 F.3d 902 (9th Cir. 2006) (en banc).

9th Circuit holds that defendant has no burden to establish exception to enhancement. (755) An application note to the counterfeiting guideline § 2B5.1, explains that an enhancement under that guideline does not apply in certain circumstances. On appeal, the government argued that the defendant bore the burden of showing that the application note applied. The Ninth Circuit rejected this contention and held that the government bore the burden of proving enhancements as they are explained in the application notes. The defendant bears no burden to show that an enhancement does not apply. U.S. v. Allen, 434 F.3d 1166 (9th Cir. 2006).

9th Circuit says career offender predicate offenses need not be proved to a jury beyond a reasonable doubt. (755) Defendant, convicted of a crime of violence, had two prior convictions for crimes of violence and was subject to sentencing as a career offender. He argued that under U.S. v. Booker, 543 U.S. 220 (2005), the government must prove to a jury beyond a reasonable doubt that his prior convictions should be classified as “crimes of violence” as that term is defined in § 4B1.1. The Ninth Circuit held that “the categorization of a prior conviction as a ‘violent felony’ or a ‘crime of violence’ is a legal question, not a factual question” that must be alleged in the indictment and proved to a jury beyond a reasonable doubt. U.S. v. Brown, 417 F.3d 1077 (9th Cir. 2005).

9th Circuit holds that immigration consequences of sentence do not require higher burden of proof. (755) Defendant was charged with possession of methamphetamine with intent to distribute it, but convicted of the lesser-included offense of possession of methamphetamine, in violation of 21 U.S.C. § 844. He sought to be sentenced to probation under the “First Offender Act,” 18 U.S.C. § 3607. The district court found by a preponderance of the evidence that defendant did not possess the methamphetamine for personal use, declined to impose probation, and sentenced him to seven months’ imprisonment. Defendant argued that the district court’s use of a preponderance standard, rather than a clear-and-convincing-evidence standard to impose a sentence of incarceration, violated due process because it had a “disproportionate impact” on his sentence and resulted in his deportation. The Ninth Circuit rejected this argument, holding that the immigration consequences of a sentence do not require a court to use a higher standard of proof in determining facts that support the sentence. U.S. v. Gonzalez, 365 F.3d 796 (9th Cir. 2004).

9th Circuit says preponderances is proper burden in conspiracy case. (755) Defendant was convicted of conspiracy to commit hostage taking. Because the grouping rules required that the conspiracy be treated as a separate offense as to each victim, his offense level increased five levels. Defendant contended that this increase was large enough to require the government to prove the facts supporting it by clear and convincing evidence. The Ninth Circuit held that because the increase was based on the extent of the conspiracy, the preponderance-of-the-evidence standard applied. U.S. v. Melchor-Zaragoza, 351 F.3d 925 (9th Cir. 2003).

9th Circuit allows preponderance standard for enhancements based on conduct to which defendant pleaded guilty. (755) At defendant’s sentencing on his conviction for conspiracy to pass fictitious instruments, in violation of 18 U.S.C. § 514(a)(2), the court enhanced his sentence ten levels based on the loss amount, the number of fictitious means of identification in defendant’s possession, defendant’s possession of a firearm, and his aggravated role in the offense. The enhancements for loss amount and the quantity of means of identification rested on conduct to which defendant pleaded guilty. The Ninth Circuit held that the district court did not commit plain error in using a preponderance-of-the-evidence standard to apply these enhancements. U.S. v. Riley, 335 F.3d 919 (9th Cir. 2003).

9th Circuit requires clear and convincing evidence for 16-level increase in immigration sentence. (755) Under U.S. v. Jordan, 256 F.3d 922, 927 (9th Cir. 2001), when a sentencing factor has an extremely disproportionate effect on the sentence, the government must prove that factor by clear and convincing evidence. In this immigration case, a 16-level enhancement under § 2L1.2(b)(1)(A) increased defendant’s sentencing range from 6-12 months to a range of 63-78 months. Because this increase had a substantial effect on the sentence, the Ninth Circuit held that the district court should have required proof of the prior conviction by clear and convincing evidence. Nevertheless, the court held that the government met this increased standard of proof. The presentence report listed the crime and defendant, in an application for benefits to the I.N.S, had admitted that he had committed voluntary manslaughter. Although the certified judgment for the prior conviction contained a clerical error, the evidence sufficiently showed that defendant had been convicted of voluntary manslaughter in violation of California Penal Code § 192(a)(1). U.S. v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. 2003).

9th Circuit says that any error in burden of proof is harmless when defendant does not identify favorable evidence. (755) Defendant claimed that the district court erred at sentencing by employing the preponderance-of-the-evidence standard rather than the clear-and-convincing-evidence standard. The Ninth Circuit found that because defendant did not “specify what evidence weighed in his favor,” he could not show that any error that occurred caused him prejudice. U.S. v. Fry, 322 F.3d 1198 (9th Cir. 2003).

9th Circuit requires proof that defendant who maintained property for drug manufacture participated in underlying offense. (755) When a defendant is convicted under 21 U.S.C. § 856 of maintaining a place for the manufacture of illegal drugs, U.S.S.G. § 2D1.8 provides for a reduced offense level if the defendant had no participation in the underlying drug offense. The Ninth Circuit held that because this provision sets a defendant’s offense level, the government bears the burden of establishing that defendant participated in the underlying offense and thus is not entitled to the lower offense level. The court rejected the Tenth Circuit’s contrary conclusion in U.S. v. Dickerson, 195 F.3d 1183 (1999). U.S. v. Leasure, 319 F.3d 1092 (9th Cir. 2003).

9th Circuit says clear and convincing standard does not apply to drug quantity determination. (755) Defendant claimed that the district court should have applied the clear and convincing evidence burden of proof, rather than the preponderance standard, in finding the quantity of drugs involved in his offense because the court’s quantity finding drastically increased his sentence. The Ninth Circuit rejected this argument, holding that its prior decisions require use of the clear and convincing standard only when the court enhances a sentence based on uncharged conduct, not when the court determines the quantity of drugs involved in the offense. U.S. v. Rosacker, 314 F.3d 422 (9th Cir. 2002).

9th Circuit holds using beyond a reasonable doubt standard at sentencing was error. (755) At sentencing, the district court ruled that it would calculate defendant’s sentence for drug trafficking using quantities that the government proved beyond a reasonable doubt. The Ninth Circuit summarily reversed, holding that “so long as the sentence does not exceed the statutory maximum, the quantum of proof the judge should apply is a preponderance of the evidence.” U.S. v. Gill, 280 F.3d 923 (9th Cir. 2002).

9th Circuit finds plain error in relying on hearsay statements for findings by a preponderance. (755) In deciding that it was “plain error” for the district court to fail to apply the “clear and convincing evidence” standard of proof, the Ninth Circuit noted that the presentence report consisted primarily of excerpts from police and FBI witness statements. Although guideline § 6A1.3(a) allows hearsay evidence to be used in sentencing, the Ninth Circuit has held that “a defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information.” U.S. v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993), amended, 992 F.2d 1015 (9th Cir. 1993). Here, because of contradictory statements, the Ninth Circuit could not determine whether the evidence offered to support the firearm enhancement was sufficiently reliable. The “abduction” enhancement was similarly unreliable, because the victim took a polygraph test which indicated that she lied when she denied knowing the defendant. The panel suggested that “this is a case that appears to call for an evidentiary hearing.” U.S. v. Jordan, 256 F.3d 922 (9th Cir. 2001).

9th Circuit holds nine-level increase, doubling sentence, required clear and convincing evidence. (755) Defendant pled guilty to unarmed bank robbery. At sentencing the district court increased his sentence by five levels for possessing a firearm during the robbery and by four levels for abduction to facilitate his escape. These nine levels increased his sentence from 70-87 months to 151-188 months, “more than doubling the length of his sentence.” Defendant was actually sentenced to 236 months after other enhancements and criminal history. The Ninth Circuit relied on U.S. v. Hopper, 117 F.3d 824 (9th Cir. 1999) and the six factors set out in U.S. v. Valensia, 22 F.3d 1173, 1182 (9th Cir. 2000), cert. granted, judgment vacated, and remanded by 121 S.Ct. 1222 (2001), to hold that the challenged sentencing factors in this case had an extremely disproportionate effect and therefore the clear and convincing evidence standard of proof should have been applied. The panel found that the court’s failure to apply the clear and convincing standard was plain error requiring reversal. Judge O’Scannlain “reluctantly” concurred, but pointed out that Valensia has no precedential effect and that the change in the law brought about by Hopper was contrary to two prior cases, yet was accomplished, “without . . . decision by the court en banc, indeed accomplished sub silentio.” U.S. v. Jordan, 256 F.3d 922 (9th Cir. 2001).

9th Circuit says “clear and convincing” evidence not required for four-level increase. (755) Defendant pled guilty to conspiring to violating regulations limiting the number of hours truck drivers may drive, and falsifying records. The district court increased his sentence by four levels under § 2F1.1(b)(6)(A) on the ground that his fraud offense involved the conscious or reckless risk of serious bodily injury. On appeal, he argued that this caused a “tremendous increase” in his sentence requiring proof by clear and convincing evidence under U.S. v. Mezas De Jesus, 217 F.3d 638, 642-44 (9th Cir. 2000) and U.S. v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999). The Ninth Circuit rejected the argument, relying on the factors set out in U.S. v. Valensia, 222 F.3d 1173 (9th Cir. 2000), cert. granted and judgment vacated on other grounds by Valensia v. U.S., 121 S.Ct. 1222 (2001). In particular, the panel relied on U.S. v. Restrepo, 946 F.2d 654, 657 (9th Cir. 1991) (en banc), to reject defendant’s argument that the facts offered by the government to support the enhancement created a “new offense” requiring separate punishment. The panel also found that defendant’s actual sentence was not “extremely disproportionate” to the offense of conviction. Unlike Hopper and Mezas De Jesus, defendant’s offense level was increased because of the nature and extent of the offense to which he pled guilty, rather than for acquitted or uncharged crimes. U.S. v. Johansson, 249 F.3d 848 (9th Cir. 2001).

9th Circuit says 3-level increase was not so disproportionate that “clear and convincing” standard applied. (755) The district court increased defendant’s alien smuggling offense level by three for creating a “substantial risk of death or serious bodily injury” pursuant to § 2L1.1(b)(5). On appeal he argued that this three-level increase had a disproportionate effect on his sentence so the court should have employed a clear and convincing standard of proof. See U.S. v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999). The Ninth Circuit found that the 13-month difference between the bottom of the original and the adjusted ranges was not disproportionate to a 33-month sentence, and thus the court did not err in using the preponderance standard of proof. U.S. v. Herrera-Rojas, 243 F.3d 1139 (9th Cir. 2001).

9th Circuit requires “clear and convincing evidence” for fourteen level increase in fraud case. (755) Two defendants in this Ponzi scheme received a fourteen level upward adjustment on the basis of uncharged relevant conduct – even though each was convicted of only two fraudulent sales. This increased their sentencing ranges from 12-18 months to 41-51 months. Relying on its recent decisions in U.S. v. Mezas de Jesus, 217 F.3d 638, 643 (9th Cir. 1999), and U.S. v. Hopper, 177 F.3d 824, 829 (9th Cir. 1999), the Ninth Circuit held that this increase was sufficiently disproportionate to trigger the “clear and convincing evidence” burden of proof at sentencing. Since the court applied the preponderance standard, the sentence was reversed and remanded for new findings under this heightened standard of proof. U.S. v. Munoz, 233 F.3d 1117 (9th Cir. 2000).

9th Circuit requires court to “err on the side of caution” in estimating drug quantity. (755) The Ninth Circuit agreed with U.S. v. Shonubi, 103 F.3d 1085, 1088 (2d Cir. 1997) that the guidelines’ requirement to punish unconvicted relevant conduct at precisely the same degree of severity as convicted conduct is “extraordinary and totally unprecedented.” The panel said that this obliges courts to “proceed carefully” in determining whether the relevant conduct has been proven, and may require “clear and convincing evidence” when an enhancement based on uncharged conduct “has an extremely disproportionate effect on the length of a defendant’s sentence.” U.S. v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000), vacated, Valensia v. U.S., 532 U.S. 901 (2001). Because approximations of drug quantities are by their nature imprecise, “a sentencing judge must err on the side of caution.” U.S. v. August, 86 F.3d 151, 154 (9th Cir. 1996). Moreover, where, as in this case, a drug quantity is arrived at in a manner that is inherently imprecise, the district court must consider the “margin of error” before finally fixing the amount attributable to the defendant. Because the district court failed to follow these governing principles here, the sentence was reversed. U.S. v. Scheele, 231 F.3d 492 (9th Cir. 2000).

9th Circuit rejects “clearly improbable” test for denying safety valve based on gun possession. (755) Once the government demonstrates that a defendant possessed a dangerous weapon under § 2D1.1(b)(1), the burden of proof is on the defendant to prove that it is “clearly improbable” that he possessed the weapon in connection with the offense. By contrast, a defendant need only show by a preponderance that he is eligible for the “safety valve” under § 5C1.2, and this includes showing that a weapon was not used in connection with the offense under § 5C1.2(2). In the present case, the judge applied the “clearly improbable” test in denying the safety valve. The Ninth Circuit held this was improper and reversed. U.S. v. Nelson, 222 F.3d 545 (9th Cir. 2000).

9th Circuit holds uncontroverted PSR is “clear and convincing evidence” of prior conviction. (755) Defendant argued, based on the Ninth Circuit’s recent decision in U.S. v. Hopper, 177 F.3d 824 (9th Cir. 1999), that the “clear and convincing” standard of proof should have been applied to his 16-level increase under § 2L1.1 for re-entering the United States after deportation following conviction of an aggravated felony. However, he never alleged that the presentence report was inaccurate; he simply claimed there was insufficient evidence to prove that he had been convicted of an aggravated felony. The Ninth Circuit noted that there was a “potential conflict” between Hopper and prior decisions in U.S. v. Harrison-Philpot, 978 F.2d 1520, 1523-24 (9th Cir. 1992), and U.S. v. Sanchez, 967 F.2d 1383, 1386-87 (9th Cir. 1992). However, the panel found it unnecessary to resolve the conflict because “in this case the uncontroverted PSR, the only evidence before the sentencing judge, provides clear and convincing evidence of the previous conviction.” The court distinguished U.S. v. Potter, 895 F.2d 1231 (9th Cir. 1990) on the ground that in Potter, the presentence report did not specify which statute defendant had been convicted of violating. U.S. v. Romero-Rendon, 220 F.3d 1159 (9th Cir. 2000).

9th Circuit reiterates that burden of proof is on the party seeking to adjust the offense level. (755) Under U.S. v. Howard, 894 F.2d 1085, 1089-90 (9th Cir. 1990), the burden of proof is on the party seeking to adjust the offense level to establish by a preponderance of the evidence why the adjustment is merited. Thus, once the government has established the base offense level, the burden falls on the party seeking to alter this level to prove the necessary facts. Therefore, in the present case, defendant bore the burden of establishing that his escape was from the non-secure custody of a halfway house, which would have entitled him to a four-level reduction. However, the government was required to prove that he committed a disqualifying offense while on release and was therefore not entitled to the reduction. U.S. v. Charlesworth, 217 F.3d 1155 (9th Cir. 2000).

9th Circuit says denying nine-month reduction does not require clear and convincing proof. (755) In U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000), the Ninth Circuit reiterated that “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction,” the government must prove the factor by clear and convincing evidence. In the current case, however, the denial of the reduction meant only “an extra nine months in prison.” This contrasts with Mezas de Jesus, which required clear and convincing evidence for a sentencing factor that increased the sentence from “less than two years to nearly five years,” and U.S. v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999), which held that “a potential increase of forty-eight months satisfies the . . . extremely disproportionate impact test.” Moreover, where as here, “the defendant does not challenge the accuracy of the information on which the judge bases the sentence enhancement, the preponderance of the evidence standard is the appropriate one regardless of the severity of the enhancement.” U.S. v. Romero-Rendon, 220 F.3d 1159 (9th Cir. 2000). Thus, the preponderance of the evidence standard was sufficient to deny the nine-month reduction. U.S. v. Charlesworth, 217 F.3d 1155 (9th Cir. 2000).

9th Circuit requires “clear and convincing” evidence for 9-level kidnapping increase. (755) Defendant was convicted of being an undocumented immigrant in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). At sentencing, the government argued that defendant committed the offense during an uncharged kidnapping. The district court applied the preponderance of the evidence standard and increased defendant’s sentence by 9 levels for the uncharged kidnapping. On appeal, the Ninth Circuit reversed, relying on its recent decision in U.S. v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999), which held that “clear and convincing evidence” was required before the defendant’s sentence could be increased by seven levels, based on violent activity for which he was acquitted. In Hopper, the 7-level adjustment increased the sentencing range from 24-30 months to 63-78 months. In the present case, the 9-level increase for the uncharged kidnapping increased the sentencing range from 21-27 months to 57-71 months, and the district court sentenced him to 57 months. The district court’s failure to apply the clear and convincing evidence standard required reversal. U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000).

9th Circuit reverses where judge drew adverse inference from defendant’s silence at sentencing. (755) In Mitchell v. U.S., 526 U.S. 314, 327-30 (1999), the Supreme Court held that a sentencing judge may not, in determining facts and circumstances of a crime, draw an adverse inference from a defendant’s silence. In this case, it appeared that the district court implicitly drew such an adverse inference. Specifically, the court questioned whether defendant was even entitled to an evidentiary hearing, given his silence. After independently reviewing the record, the Ninth Circuit found that the district court did draw an adverse inference from defendant’s silence. This error was a factor in its misapplication of the preponderance standard: the district court held that the government’s evidence preponderated because “there isn’t any on the other side.” This effectively shifted the burden of proof at sentencing and violated defendant’s Fifth Amendment right against self-incrimination. U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000).

9th Circuit says “preponderance” standard requires evidence to be convincing, not simply more in quantity. (755) After holding that a 9-level increase for an uncharged kidnapping required proof by “clear and convincing” evidence, the Ninth Circuit added that in any event, the district court applied the “preponderance” standard improperly. The district court found that the government’s evidence preponderated because “there isn’t any on the other side.” This was improper because the judge must focus on the convincing force of the evidence, not simply on the “quantum” of evidence. See U.S. v. Restrepo, 946 F.2d 654, 661 (9th Cir. 199) (en banc), quoting In re Winship, 397 U.S. 358, 367-68 (1970). In relying on the quantum of evidence, rather than its convincing force, the district court denied defendant due process. U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000).

9th Circuit requires “clear and convincing evidence” before increasing sentence by seven levels. (755) In U.S. v. Restrepo, 946 F.2d 654, 659 (9th Cir. 1991) (en banc), the Ninth Circuit held that “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction,” the government may have to satisfy a “clear and convincing” standard. In the present case, the Ninth Circuit held that a four level increase in sentence was not an exceptional case requiring clear and convincing evidence. However, a second defendant’s sentence was increased by seven levels; three for official victim and four for violent conduct. This increased the sentencing range from 24-30 months to 63-78 months. The Ninth Circuit held that “[g]iven the relative shortness of [defendant’s] sentence, a potential increase of 48 months satisfies the Restrepo extremely disproportionate impact test.” Therefore, the district court erred in failing to apply the clear and convincing standard. U.S. v. Hopper, 177 F.3d 824 (9th Cir. 1999).

9th Circuit says defendant has burden to show that retroactive amendment applies. (755) In a typical motion to apply a retroactive amendment to the guidelines, the issue of who bears the burden of proof is rarely reached. However, where, as here, it is unclear whether a retroactive amendment applies to defendant’s sentence, the burden is on him to show its applicability. However, once he shows that the amendment affected his sentence, however, the burden of proof shifted to the government to establish the base offense level, that is, the weight of the controlled substance. See U.S. v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). U.S. v. Sprague, 135 F.3d 1301 (9th Cir. 1998).

9th Circuit uses predicate robbery under “three strikes” law where plea admitted use of a gun. (755) Under the federal “three strikes” law, 18 U.S.C. § 3559(c)(1)(A), the court must sentence to life any defendant who (1) is convicted in federal court of a “serious violent felony”; and (2) has two or more prior “serious violent felony” convictions in federal or state courts, or has at least one “serious violent felony” conviction and at least one “serious drug offense.” Robbery is considered a “serious violent felony” but the statute permits a defendant to show “by clear and convincing evidence” that he did not use a firearm and that no one died or suffered serious bodily injury. In this case, defendant argued that it violated due process to require him to make a showing by clear and convincing evidence, when the “preponderance standard” applied to the government. The Ninth Circuit found it unnecessary to reach this issue, holding that because defendant pleaded guilty and specifically admitted using a firearm in the prior robbery, “he was precluded from contending that he did not, in fact, use a gun.” The government’s burden of proof was therefore “irrelevant.” U.S. v. Morrison, 113 F.3d 1020 (9th Cir. 1997).

9th Circuit explains burden of proof in “safety valve” cases. (755) The Ninth Circuit held that the initial burden is on the defendant to demonstrate by a preponderance of the evidence that he is eligible for the “safety valve.” U.S. v. Howard, 894 F.2d 1085, 1089-90 (9th Cir. 1990). “Once he has made this showing however, it falls to the government to show that the information he has supplied is untrue or incomplete.” Here, the government failed to meet that burden. U.S. v. Shrestha, 86 F.3d 935 (9th Cir. 1996).

9th Circuit says defendant has burden of proving qualification for “safety valve.” (755) The Ninth Circuit held that the defendant has the burden of proving, by a preponderance of the evidence, that she qualifies for the safety valve provision. This is consistent with the general rule that the burden of proof at sentencing is on the party seeking to adjust the offense level. Here, defendant’s bare assertion that she had provided all the relevant information to the government because she “had at least two meetings with the government” was not a preponderance of the evidence. Moreover, the district court could properly consider information learned from other sources which indicated that defendant had been less than forthcoming. U.S. v. Ajugwo, 82 F. 3d 925 (9th Cir. 1996).

9th Circuit says government bears the burden of proving enhancements by a preponderance. (755) “The Government bears the burden of proving factors enhancing a sentence by a preponderance of the evidence.” The Ninth Circuit has emphasized that the preponderance standard “is a meaningful one which requires the judge to be convinced by a preponderance of the evidence that the fact in question exists, rather than abstractly weighing the evidence in order to determine which side has produced the greater quantum.” Here, the government did not meet its burden to support a six-level enhancement for sets of illegal immigration documents. U.S. v. Torres, 81 F.3d 900 (9th Cir. 1996).

9th Circuit finds no need for higher standard of proof despite doubling of sentence. (755) Defendant argued that the district court should have applied a higher standard of proof of facts that almost doubled his offense level from a range of 77-96 months to a range of 140-175 months. The 9th Circuit rejected the argument, noting that although extreme cases may require a higher standard of proof, prior cases have upheld the preponderance of evidence standard for greater increases than in this case. See U.S. v. Harrison-Philpot, 978 F.2d 1520, 1523-34 (9th Cir. 1992) (increase from 41-51 months to 292-365 months); U.S. v. Sanchez, 967 F.2d 1383, 1384-87 (9th Cir. 1992) (increase from 10-16 months to 63-78 months). U.S. v. Rutledge, 28 F.3d 998 (9th Cir. 1994).

9th Circuit includes drug quantity in conspiracy despite acquittal of personal possession. (755) The jury convicted defendant of conspiracy and one count of possession but acquitted him of a second possession charge. Nevertheless, the 9th Circuit upheld sentencing him for the amount of cocaine in the second count. The court distinguished U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991) noting that there was no inconsistency between the jury’s verdict and the district court’s finding that defendant was accountable for the cocaine seized in the second count. The district court made a specific finding that the three kilos seized in the second count were foreseeable to the defendant as part of the continuing conspiracy. Therefore, they were properly included as “relevant conduct” under guideline section 1B1.3. The court rejected defendant’s argument that the district court should have imposed a higher standard of proof, noting that the court’s finding was fully consistent with the jury’s verdict, despite the acquittal. U.S. v. Diaz-Rosas, 13 F.3d 1305 (9th Cir. 1994).

9th Circuit says there is a presumption of regularity for prior convictions used to enhance sentence. (755) Under Boykin v. Alabama, 395 U.S. 238 (1969), a silent or ambiguous record of a prior conviction is presumptively invalid. However, in Parke v. Raley, 113 S.Ct. 517, 523 (1992), the Supreme Court held that this presumption did not apply to state prior convictions that are collaterally attacked, because there is a “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. In the present case, the 9th Circuit extended the holding of Parke to collateral review of federal prior convictions, holding that the defendant has the burden to show the Constitutional invalidity of his prior convictions. Since the district court placed the burden on the government in this case, the sentence was vacated and the case was remanded to permit the defendant to attempt to show that his prior convictions were invalid. U.S. v. Mulloy, 3 F.3d 1337 (9th Cir. 1993).

9th Circuit places burden on defendant to show inability to produce total quantity. (755) Defendant pled guilty to one count of conspiracy to distribute cocaine in a reverse sting that specifically charged him with telling an undercover agent that he wanted to buy 50 kilos. Defendant had negotiated for a total of 50 kilos costing $350,000 for each of two 25 kilo deliveries. Defendant showed up with only $200,000 of the first $350,000 but the government gave him the 25 kilos and arrested him. The 9th Circuit found that in pleading guilty defendant conceded the amount under negotiation was 50 kilos, but this did not preclude him from establishing that he was not reasonably capable of producing the money to buy the entire 50 kilos. However, the court found that defendant has the burden of proving he or she was not reasonably capable of producing the negotiated amount. The government need only prove the negotiated amount and the burden shifts to the defendant to establish that he or she could not reasonably produce that amount. U.S. v. Barnes, 993 F.2d 680 (9th Cir. 1993).

9th Circuit says government did not have burden of proof where it did not seek enhancement. (755) Because the transcripts of defendant’s prior convictions were unavailable at the time of the guilty plea, the government agreed to recommend that defendant not be treated as a career offender. However, the probation report recommended that defendant be sentenced as a career offender, and after reviewing transcripts of the prior convictions, the district court found that defendant was a career offender. The decision in U.S. v. Howard, 894 F.2d 1085 (9th Cir. 1990), which held that the government bears the burden of proving an enhancement of a sentence by a preponderance of the evidence, did not apply because the government did not seek the enhancement. In addition, there was no suggestion the evidence of defendant’s prior convictions was insufficient. U.S. v. Lewis, 979 F.2d 1372 (9th Cir. 1992).

9th Circuit reverses where court relied on unsupported conclusions in PSR. (755) There was uncontroverted evidence that defendant was involved in only the first of five transactions in a multi-defendant drug conspiracy. The presentence report concluded that the quantities involved in all five of the transactions should be included in calculating the offense level. While the district court may adopt findings in the presentence report, it may not adopt conclusory statements unsupported by the facts or guidelines. The presentence report offered no rationale for its conclusion that the sentence should be based on the quantities in the entire conspiracy. Because the court’s statements indicated it did not make the factual determinations required by the guidelines, the sentence was vacated and the case was remanded with directions to make express findings regarding defendant’s culpability for each transaction. U.S. v. Navarro, 979 F.2d 786 (9th Cir. 1992).

9th Circuit holds that government has the burden of establishing quantity of drugs. (755) Relying on U.S. v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990), the 9th Circuit held that the government has the burden of presenting evidence sufficient to enable the district court to determine the base offense level. Under section 2D1.1(c) the base offense level for a drug-related offense depends entirely upon the quantity of drugs involved. U.S. v. Harrison-Philpot, 978 F.2d 1520 (9th Cir. 1992).

9th Circuit reaffirms that preponderance standard of proof applies at sentencing. (755) In U.S. v. Restrepo, 946 F.2d 654 (9th Cir. 1991) (en banc), cert. denied, 112 S.Ct. 1654 (1992), the 9th Circuit held that the preponderance of the evidence standard of proof satisfies due process for uncharged facts under the “relevant conduct” section, 1B1.3(a)(2). Restrepo left open the possibility that in cases involving severe penalty enhancements, due process might require heightened procedural protections. In this case, defendant was convicted of conspiracy, and the extent of the conspiracy caused her sentence to be increased from a range of 41-51 months to a range of 292-365 months. Nevertheless, the majority found that this did not provide the legal basis for the due process concerns contemplated in Restrepo, because this case involved only a “quantity determination” for convicted conduct, not uncharged conduct. Judge Wiggins refused to join this part of the opinion, arguing that the seven-fold increase in sentence required a higher standard of proof. U.S. v. Harrison-Philpot, 978 F.2d 1520 (9th Cir. 1992).

9th Circuit suggests higher standard of proof where sentencing factors have extremely disproportionate effects. (755) Defendant argued that the preponderance of evidence standard was insufficient because the relevant conduct enhancement increased his sentence from 12-16 months to 63-78 months. The 9th Circuit suggested that due process may require a higher standard of proof where the sentencing factors have extremely disproportionate effects. In U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990), the court required defendant’s relevant conduct to be proved by clear and convincing evidence because his sentence was increased by twelve fold. Here, however, the panel held that the relevant conduct enhancement was not so extreme that a higher standard of proof was necessary. U.S. v. Sanchez, 967 F.2d 1383 (9th Cir. 1992).

9th Circuit says court need not give reasons for imposing sentence at top of range where range was only six months. (755) Title 18 U.S.C. section 3553(c) requires the court to state its reasons for imposing a sentence at a particular point within the applicable range if that range exceeds twenty-four months. Here, however, the range was only six months, from twenty-one to twenty-seven months. Accordingly the court found no error. U.S. v. Martinez-Gonzalez, 962 F.2d 874 (9th Cir. 1992).

9th Circuit says reliance on improper sentencing factor is not harmless unless it had no effect on the sentence. (755) The probation officer used information obtained at presentence interview conducted without counsel to conclude that the obstruction adjustment was proper. The probation officer adamantly refused to reconsider the obstruction recommendation, regardless the results of the second interview with counsel present. The sentencing court adopted the probation officer’s report and its attendant tainted information. On appeal, the 9th Circuit held that the government failed to carry its burden to demonstrate that the reliance on this improper information had no effect on the sentence selected. Nor were the errors rendered harmless by the district court’s compromise sentence, ordering defendant to serve the lowest term in the adjusted range which was the same as the highest term in the non-adjusted range. The sentence was vacated, and the court ordered a new presentence interview with counsel present and a different probation officer. The district court was instructed not to consider the first presentence interview in determining the appropriateness of an obstruction adjustment. U.S. v. Rodriquez-Razo, 962 F.2d 1418 (9th Cir. 1992).

9th Circuit, en banc, holds that preponderance of evidence standard applies at sentencing. (755) In a 7-4 opinion written by Judge Wiggins, the 9th Circuit, sitting en banc, upheld the preponderance of evidence standard of proof at sentencing. The majority noted that every circuit that has considered the question has applied this standard. The court noted that McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986), recognized that there may be an exception to the general rule “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction.” But here, the judge found that in addition to the 37 grams of cocaine involved in the counts of conviction, defendant was responsible for 65 grams associated with the conviction of his codefendant. The 9th Circuit found that increasing the guideline range from 12 to 20 months for these additional amounts was simply not “a tail which wags the dog of the substantive offense.” Judge Tang concurred separately, and Judges Pregerson, Norris, Hug and D. Nelson dissented. U.S. v. Restrepo, 946 F.2d 654 (9th Cir. 1991) (en banc).

9th Circuit holds that government bears burden of proving possession of firearm in counterfeiting case. (755) In U.S. v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990) the 9th Circuit held that the government bears the burden of proving the facts necessary to establish the base offense level. “Once the base offense level is established, the party seeking to alter the base offense level bears the burden of proving the necessary facts. In this case, the court increased the base offense level by nine points, finding that defendant possessed a firearm in connection with the crime of possession of counterfeit currency. The 9th Circuit held that the government bore the burden of proof on this issue, and that the evidence was sufficient to support the district court’s finding. The defendant was holding a loaded handgun when the agent’s returned to arrest him after the informant purchased counterfeit currency from him. U.S. v. Oliveros-Orosco, 942 F.2d 644 (9th Cir. 1991).

9th Circuit holds that government bears the burden of proof in establishing criminal history category. (755) When the government seeks to adjust an offense level upward, it bears the burden of proof to support that upward adjustment. The 9th Circuit ruled that the adjustment of the criminal history category is closely analogous. Under the guidelines a higher criminal history category produces a heavier sentence just as a high offense level does. Therefore on remand the government would bear the burden of proof to establish that the state convictions warranted an increase in defendant’s criminal history category. U.S. v. Kemp, 938 F.2d 1020 (9th Cir. 1991).

9th Circuit holds that enhancement for weapon possession was not an element of the offense. (755) Defendant was convicted in Montana state court of kidnapping and assault. The sentencing court imposed a ten year consecutive sentence for using a firearm while engaged in the commission of an offense. He sought habeas relief, alleging that the firearm allegation was an element of the crime rather than a mere sentence enhancement. Judges Wright, Browning and Farris rejected the argument, relying on LaMere v. Risley, 827 F.2d 622 (9th Cir. 1987) which held that the Montana statute did not create a separate substantive offense but merely provided for enhancement of a penalty. The court found nothing in McMillan v. Pennsylvania, 477 U.S. 79 (1986) that limited the state’s power to increase a sentence beyond the maximum permitted by the underlying offense. Nichols v. McCormick, 929 F.2d 507(9th Cir. 1991).

9th Circuit upholds sentence based on preponderance of the evidence. (755) Quoting earlier precedent, the 9th Circuit stated that in the sentencing context, a preponderance of the evidence is “a sufficient weight of evidence to convince a reasonable person of the probable existance of the enhancing factor.” Under this standard the court found that the district court could properly conclude that defendant intended to kill his victim. U.S. v. Mun, 928 F.2d 323 (9th Cir. 1991).

9th Circuit holds that defendant bears the burden of proving entitlement to downward adjustment. (755) The 9th Circuit held that a defendant who seeks a downward adjustment in his base offense level bears the burden of proving, by a preponderance of the evidence, that he is entitled to the reduction. Here the district court found that the defendant had not met his burden and the 9th Circuit held that the ruling was not clearly erroneous. U.S. v. Uzelac, 921 F.2d 204 (9th Cir. 1990).

9th Circuit holds that defendant failed to satisfy his burden to show that prior guilty plea was flawed. (755) By analogy to other guideline rulings, the 9th Circuit held that under U.S.S.G. 4A1.2 the defendant has the burden to establish the constitutional invalidity of a prior conviction for purposes of determining the criminal history category. The preponderance of the evidence standard applies. Here, the defendant produced a transcript of his 1978 plea which did not show a factual basis and was silent on the issue of specific intent to deprive the owner of his automobile and the lack of the owner’s consent. The 9th Circuit held that these shortcomings did not render the plea unconstitutional, noting that “the state record clearly shows that his Boykin rights were properly canvassed although each element of the offense was not expressly stated on the record.” U.S. v. Newman, 912 F.2d 1119 (9th Cir. 1990).

9th Circuit applies preponderance standard to factual disputes at sentencing. (755) Defendant argued that the upward adjustment for obstruction of justice was based largely on disputed factual contentions and the district court should have required these contentions to be established by a jury verdict upon proof beyond a reasonable doubt. The 9th Circuit rejected the argument, holding that due process is satisfied by application of the preponderance of the evidence standard to factual findings made by the court during sentencing. Moreover, there is no 6th Amendment right to jury sentencing, even when the sentence turns on specific findings of fact. U.S. v. Rafferty, 911 F.2d 227 (9th Cir. 1990).

9th Circuit upholds and elaborates on “preponderance of the evidence” standard in sentencing. (755) Defendant was sentenced based on the trial court’s finding that defendant had supplied a certain quantity of cocaine. He argued that his due process rights were violated because the trial court applied the “preponderance of the evidence” standard rather than the higher standard of proof beyond a reasonable doubt. Judges Boochever and Noonan rejected defendant’s due process claim. Noting the importance of the factual determination, the court warned against a “literal interpretation” of the standard. Instead, the preponderance standard requires “a sufficient weight of evidence to convince a reasonable person of the probable existence of the enhancing factor.” Judge Pregerson dissented. U.S. v. Restrepo, 903 F.2d 648 (9th Cir. 1990), rehearing en banc granted, 912 F.2d 1568 (9th Cir. 1990).

9th Circuit holds that preponderance standard applies at sentencing. (755) Defendant argued that due process clause required that fact determinations at sentencing be proved beyond a reasonable doubt. The 9th Circuit rejected the argument, relying on McMillan v. Pennsylvania, 477 U.S. 79, 84 (1986). The court held only that “district courts are constitutionally required to make factual determinations underlying application of the guidelines by at least a preponderance of the evidence.” Moreover, the court here did not rely on unreliable evidence in sentencing the defendant. U.S. v. Wilson, 900 F.2d 1350 (9th Cir. 1990).

9th Circuit holds that defendant has the burden of proffering evidence to show that presentence report is inaccurate. (755) At the sentencing hearing defense counsel challenged the amount of fraudulent loss contained in the presentence report. However, neither defendant nor his counsel proffered evidence to challenge the amount of fraudulent losses. On appeal they argued that the district court violated Fed. R. Crim. P. 32 by failing to make findings or to state that it would not consider certain disputed information in the presentence report. The 9th Circuit held that “where factual inaccuracy is alleged, the defendant has the burden of introducing, or at least proffering, evidence to show the inaccuracy. Because the defendant never offered any facts, the factual issue was not joined, and “it was not necessary for the court to make either a finding of fact or to issue a statement that it was not relying on the matter controverted.” U.S. v. Roberson, 896 F.2d 388 (9th Cir. 1990), modified, 917 F.2d 1158 (9th Cir. 1990).

9th Circuit rules proponent of change from base level has “preponderance” burden. (755) As part of plea bargain, government stipulated defendant was a “minor participant” in the crime. The court refused to accept the stipulation, ruled defendant was not a “minor participant”, and refused a two-point reduction from base level. Defendant claimed that the government should have borne the burden of proving he was not a “minor participant. Reviewing the district court’s decision as a finding of fact, the 9th Circuitfollowed the approach of the Third and Fourth Circuits, holding that the government bears the burden of establishing the base level or any upward increase, and the defendant bears the burden of proof if the defendant seeks to lower the offense level. The burden of proof is the “preponderance of the evidence” standard. U.S. v. Howard, 894 F.2d 1085 (9th Cir. 1990).

9th Circuit holds preponderance of evidence standard is appropriate for determining facts at sentencing hearing. (755) Relying on McMillan v. Pennsylvania, 106 S.Ct. 2411, 2420 (1986), the 9th Circuit held that the district judge did not abuse his discretion in applying a preponderance of the evidence standard in making findings of fact at sentencing. They also indicated that an even “lesser” standard might be sufficient, but that question “is not before us.” Judge Reinhardt concurred, but suggested that a “higher” standard may well be warranted in capital cases. U.S. v. Fernandez-Vidana, 857 F.2d 673 (9th Cir. 1988).

10th Circuit applies cross-reference for perjury during grand jury murder investigation. (755) Defendant was convicted of committing perjury before a grand jury investigating the murder of a 15-year-old girl. Under § 2J1.3(a), when the perjury occurs “in respect to a criminal offense,” the offense level must be computed under § 2X3.1, the guideline for an “Accessory after the Fact.” Defendant argued that the district court should have applied a heightened evidentiary standard to its finding that the § 2X3.1 cross-reference applied. The Tenth Circuit found that the cross reference only required the judge to find that the perjury interfered with a murder investigation, not that defendant committed a murder. The record would have compelled the court to make this finding under any conceivable standard of proof. During his day of testimony, defendant was questioned extensively about prior statements he had made indicating that the victim had been murdered. The evidence clearly showed that defendant perjured himself before a grand jury investigating the victim’s disappearance and whether that disappearance resulted from a murder. U.S. v. Olsen, 519 F.3d 1096 (10th Cir. 2008).

10th Circuit holds that relevant conduct increase was insufficient to trigger higher standard of proof. (755) Defendant argued that his relevant conduct resulted in such a substantial increase in his sentence that it should be proved by more than a preponderance of the evidence. The drugs involved in the offense of conviction would have resulted in an adjusted offense level of 34 or 36, rather than the 40 that the court assigned to him. The Tenth Circuit found this increase insufficient to trigger a higher standard of proof. In U.S. v. Washington, 11 F.3d 1510 (10th Cir. 1993), even though the drug quantities beyond the three counts of conviction increased the base offense level from 32 to 40, leading to an offense level of 44 and three consecutive 40-year sentences, the court approved the preponderance of the evidence standard. The increase here was smaller than the increase in Washington, both in absolute terms and as a percentage of the unenhanced figures. U.S. v. Mendez-Zamora, 296 F.3d 1013 (10th Cir. 2002).

10th Circuit holds that defendant did not prove he did not participate in underlying drug offense. (755) Defendant pled guilty to managing or controlling a building and making it available for illegal drug activity, 21 U.S.C. § 856(a)(2). Guideline § 2D1.8(a)(2) provides that the offense level shall be the same as for the underlying drug offense, except that if the defendant did not participate in the underlying drug offense other than allowing use of the premises, then the offense level shall be capped at level 16. The Tenth Circuit held that the burden falls on a defendant to prove he did not personally participate in order to obtain the benefits of subsection (a)(2). Defendant did not establish that he did not personally participate in the underlying drug offense. At the time of his arrest immediately before the search of his residence, defendant possessed about 17 grams of crack. Police found 196 grams of crack, about $6000 in cash, marijuana and a mobile phone in a bedroom in defendant’s house. Other evidence found in this bedroom, most notably a vehicle registration certificate, indicated that the bedroom and its contents belonged to defendant. U.S. v. Dickerson, 195 F.3d 1183 (10th Cir. 1999).

10th Circuit gives government burden of proving prior offense was not part of current offense. (755) Section 4A1.2(a)(1) assigns criminal history points for each sentence previously imposed “for conduct not part of the instant offense.” Note 1 says “[c]onduct that is part of the instant offense is conduct that is relevant conduct to the instant offense…” In determining whether a prior sentence is relevant conduct, some courts have asked whether the prior sentence was actually taken into account by the sentencing court in determining the total offense level. Other courts have made an independent evaluation based on factors such as the similarity, temporal proximity, and regularity of the offenses. The Tenth Circuit held that combining these two approaches was the best way to make the relevant conduct determination. In the present case, the court did not take the prior sentence into account in its offense level determination. Thus, an analysis of similarity, temporal proximity, and regularity of the offenses was necessary. The record did not contain sufficient information on these issues. Where the scope of the charged conspiracy covers (1) a time frame, (2) a geographic area, and (3) a subject matter or purpose broad enough to include prior convictions, the Tenth Circuit held that the government bears the burden of proving that the prior convictions were not relevant conduct. Because the government failed to meet that burden here, the district court erroneously found that defendant’s two prior drug convictions were not part of the current drug conspiracy. U.S. v. Torres, 182 F.3d 1156 (10th Cir. 1999).

10th Circuit includes acquitted and uncharged conduct in loss calculation. (755) Defendant recruited drivers to drive tow trucks. The drivers were required to pay defendant’s company about $4000 each as down payments on their tow truck leases. Thirty-six recruited drivers paid their money to defendant’s company but did not receive tow trucks or refunds. The company then went bankrupt. Defendant was convicted of two counts of mail fraud and acquitted of five other counts. At sentencing, the court based the loss on the total losses to 40 drivers who paid down payments to defendant, even though defendant had been acquitted of defrauding some of those drivers and had not been charged with defrauding most of the rest. The Tenth Circuit held that the court properly considered all of defendant’s conduct, including acquitted and uncharged conduct. The court agreed with defendant that the PSR inflated the magnitude of his victims’ losses and in places was inconsistent, careless and ambiguous. However, until this appeal, defendant never challenged the factual accuracy of the PSR. Accordingly, his factual challenge was waived. U.S. v. Yarnell, 129 F.3d 1127 (10th Cir. 1997).

10th Circuit reverses where burden was placed on defendant to contest tax loss figure. (755) Defendant was convicted of various tax fraud charges. The Tenth Circuit held that the district court incorrectly placed the burden of proof on defendant to disprove the government’s figure on the amount of tax loss. The government bears the burden of proving a sentencing enhancement based on tax loss. At trial, the government proved that defendant received three refunds totaling $29,922. It did not, however, introduce any evidence concerning the tax loss suffered by the government. As a result, the sentencing court could not rely on testimony it heard at trial to determine this issue. In response to defendant’s challenge to the figure in the presentence report, the court stated that defendant was required to establish the report’s inaccuracy. U.S. v. Rice, 52 F.3d 843 (10th Cir. 1995).

10th Circuit says court did not shift burden of proof to defendant by relying on disputed facts in PSR. (755) Defendant argued that the district court erroneously shifted the burden of proof to him when it relied on disputed facts in the PSR to compute actual loss. The 10th Circuit rejected this claim, finding the court relied on evidence presented by the government at the sentencing hearing. The government met its burden to prove loss through the testimony of a postal inspector. The inspector testified that 37 investors had losses of $5.3 million. Defendant did not dispute this actual loss figure. The court then subtracted the value of various remaining old properties from testimony at the sentencing hearing. U.S. v. McAlpine, 32 F.3d 484 (10th Cir. 1994).

10th Circuit upholds enhancement based on boyfriend’s firearm possession. (755) Defendant challenged a firearm enhancement under guideline section 2D1.1(b)(1) on the ground that her boyfriend was acquitted of firearm charges under 18 U.S.C. § 924(c). The 10th Circuit upheld the enhancement, since defendant accompanied her boyfriend in many of his dealings and knew he kept a weapon with his drugs in the duffel bag he always carried. That knowledge and her presence, standing alone, balanced the reasonable foreseeability equation of section 2D1.1(b)(1) and 1B1.1. The court rejected defendant’s invitation to require more than a preponderance of the evidence to support the increase. Unlike the evidentiary threshold necessary for a conviction under section 924(c), the guidelines require only a preponderance of the evidence to support fact-bound determinations. U.S. v. Roberts, 14 F.3d 502 (10th Cir. 1993).

10th Circuit rejects use of clear and convincing standard despite life sentence. (755) By considering uncharged drugs as relevant conduct, defendant’s guideline range was increased from a range of 210-262 months to life imprisonment. The 10th Circuit rejected his claim that the relevant conduct should have been established by clear and convincing evidence rather than by a mere preponderance. The due process clause does not require sentencing facts in ordinary cases to be proven by more than a preponderance. In making guideline calculations, the issue of a higher than a preponderance standard is foreclosed in the 10th Circuit. U.S. v. Washington, 11 F.3d 1510 (10th Cir. 1993).

10th Circuit approves district court’s suggestion that defendant meet government’s proof. (755) Defendant contended that the district court improperly placed the burden of proof on him at the sentencing hearing. The 10th Circuit acknowledged that the district court had looked to the defendant to present evidence that would contradict the government’s evidence. But it did so only after the government presented “substantial evidence” in support of the presentence report. Thus, the burden of proof was not improperly cast on the defendant. U.S. v. Levy, 992 F.2d 1081 (10th Cir. 1993).

10th Circuit finds use of preponderance standard does not violate due process or jury trial rights. (755) The 10th Circuit rejected the claim that the district court’s determination of sentencing factors by a preponderance of the evidence deprived defendant of his 5th and 6th Amendment rights to due process and trial by jury. The due process argument was rejected in prior 10th Circuit cases. The Supreme Court has recognized that there is no right to a jury trial on sentencing factors. Neither the quantity of narcotics nor possession of firearms was an element of the offense for which defendant was convicted. U.S. v. Underwood, 982 F.2d 426 (10th Cir. 1992), abrogated on other grounds by U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000).

10th Circuit reviews enhancement for organizer role de novo. (755) Defendant challenged a four-level enhancement for his organizer role in the offense under section 3B1.1(a). The 10th Circuit held that since the applicability of the guideline was an issue of law, its review would be de novo. U.S. v. Smith, 951 F.2d 1164 (10th Cir. 1991).

10th Circuit affirms use of preponderance of evidence standard during sentencing hearings. (755) The district court relied on uncharged criminal activities proved by a preponderance of the evidence in computing defendant’s base offense level. On appeal, defendant claimed that her due process rights were violated when she was sentenced for offenses which were not proven beyond a reasonable doubt. The 10th Circuit disagreed, relying on McMillan v. Pennsylvania, 477 U.S. 79 (1986), in which the Supreme Court upheld the preponderance of the evidence standard. The court also noted that no other jurisdiction has adopted the “beyond a reasonable doubt” standard in considering sentencing evidence. U.S. v. Frederick, 897 F.2d 490 (10th Cir. 1990).

10th Circuit holds that burden of proof for sentence increase or decrease rests with the advocating party. (755) In upholding denial of a reduction of sentence for a defendant who pled guilty to receipt of a sawed off shotgun, the 10th Circuit ruled the government must bear the burden of proof for sentence increases and the defendant must bear the burden of proof for sentence decreases. The level of proof is a “preponderance of the evidence,” with neither side required to prove the negative of proposition. Finally, “evidence which does not preponderate or is in equipoise simply fails to meet the required burden of proof.” U.S. v. Kirk, 894 F.2d 1162 (10th Cir. 1990).

10th Circuit holds that sentencing judge need not find that defendant testified untruthfully beyond a reasonable doubt. (755) Defendant argued that permitting the sentencing court to consider his untruthfulness at trial violated due process because it allowed the court to “draw the line” between what is true or false, and because he was being punished for perjury, a crime for which he was not convicted. The 10th Circuit noted that these arguments were “flatly rejected” in U.S. v. Grayson, 438 U.S. 41. The fact that Grayson was a preguideline case did not affect its holding as to due process. The court also rejected the defendant’s argument that the evidence was insufficient to support the trial court’s finding. The court found no due process violation in the sentencing court’s consideration — based on a preponderance of the evidence — of criminal activity for which the defendant had never been charged or convicted. Thus the trial court was not clearly erroneous in adjusting the defendant’s sentence upward for obstruction of justice. U.S. v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990).

11th Circuit rules that government failed to establish that Booker error was harmless. (755) The district court committed constitutional Booker error by finding that defendant possessed a stolen firearm – a fact neither admitted by him nor found by a jury – and imposing a two-level enhancement under a mandatory guideline system. Defendant preserved his claim of Booker error; therefore, the government had the burden of proving beyond a reasonable doubt that the error was harmless. The Eleventh Circuit ruled that the government could not meet this burden simply by showing that the court imposed a sentence at the top of the guideline range. Rather, the government must at least point to a statement by the court indicating it would have imposed the same or a higher sentence if it had possessed the discretion to do so. The court’s assertion that a sentence at the high end of the guideline range was appropriate was not sufficient. U.S. v. Cain, 433 F.3d 1345 (11th Cir. 2005).

11th Circuit refuses to review § 3E1.1 claim raised for first time on appeal where other factors were clearly proper. (755) Defendant argued that he was entitled to an acceptance of responsibility reduction because he pled guilty in a timely fashion before trial and told the truth about his offense conduct. However, defendant tested positive for drug use during his pretrial release and associated with people smoking marijuana. The district court held that those factors outweighed the evidence of acceptance of responsibility. Defendant argued for the first time on appeal that the court also improperly considered defendant’s prior criminal conviction. The Eleventh Circuit refused to consider defendant’s argument because it was raised for the first time on appeal. Because the properly considered factors were sufficient to deny the § 3E1.1 reduction, the court would not hear defendant’s argument about the erroneous consideration of an additional factor that was not presented to the district court. U.S. v. Gonsalves, 121 F.3d 1416 (11th Cir. 1997).

11th Circuit holds that defendant waived challenge to erroneous upward departure. (755) While in prison, defendant pled guilty to second degree murder. The district court departed upward because of the severity of the offense, a murder and a death.” Defense counsel objected on the ground that the murder was already taken into account in the second-degree murder guideline. The prosecutor attempted to provide the court with an alternate ground for departure—defendant’s poor institutional behavior. The court ignored the prosecutor’s attempt to justify the departure. When defense counsel informed the court that it would appeal, defendant intervened and instructed counsel to withdraw his objection. The Eleventh Circuit found that the departure was error, but that defendant had knowingly waived his objection to it. The plain error doctrine is inapplicable in a situation such as this where the defendant fully comprehends the error the court is going to commit and nonetheless agrees to be bound by it. In a footnote, the court termed the prosecutor’s conduct “reprehensible.” The prosecutor had a duty to inform the court that it could not depart upward on account of the victim’s death. U.S. v. Masters, 118 F.3d 1524 (11th Cir. 1997).

11th Circuit uses preponderance to decide if kidnapper sexually abused victim. (755) Defendant kidnapped a woman from a gas station, drove her across state lines, and raped her. He argued that cross-referencing from the kidnapping guideline, § 2A4.1(b)(7) to the sexual abuse guideline, § 2A3.1(a), requires a higher standard of proof than a preponderance of the evidence. He also claimed that the proof here did not meet even the preponderance standard. The Eleventh Circuit held that the district court properly applied the preponderance standard to determine if defendant had sexually abused his victim. Applying § 2A3.1’s enhancement for abduction did not constitute improper double counting. Double counting under separate guidelines is permitted if the Sentencing Commission intended that result and each section is conceptually separate. The kidnapping provision specifically requires that if the cross-referenced guideline does not include an adjustment for kidnapping, the court should add four levels to the base offense level. Moreover, kidnapping and sexual abuse are conceptually separate. U.S. v. Lewis, 115 F.3d 1531 (11th Cir. 1997).

11th Circuit approves use of preponderance standard to find defendant committed additional offense. (755) Defendant was convicted of being a felon in possession of a firearm. The district court granted an upward criminal history departure based on evidence that defendant threw acid on his former girlfriend and her three children. Defendant argued that the district court erroneously used the preponderance of the evidence standard to find that he had been the attacker. The Eleventh Circuit affirmed, finding that the court had given defendant the benefit of the higher beyond a reasonable doubt standard, even though it was not required by law. It is well settled that at sentencing a federal defendant’s due process rights are satisfied by the preponderance of the evidence standard. Nonetheless, the district court found that the government proved beyond a reasonable doubt that defendant committed the attack. U.S. v. Jackson, 57 F.3d 1012 (11th Cir. 1995).

D.C. Circuit reaffirms that defendant bears initial burden of proof on safety valve. (755) At defendant’s sentencing hearing, the district court placed the burden of proof on defendant to show that he was entitled to a sentence below the applicable mandatory minimum based on the safety valve, 18 U.S.C. § 3553(f). On appeal, defendant argued that once he made a credible showing that the information that he gave to the government was truthful and complete, the burden shifted to the government to present evidence contradicting defendant’s story. The D.C. Circuit noted that defendant’s proposed approach was “sensible but inapplicable,” because defendant had never credibly established that he had given truthful and complete information to the government. The court reaffirmed that a defendant seeking a safety valve reduction bears the initial burden of showing by a preponderance of the evidence that he was entitled to relief. U.S. v. Gales, 603 F.3d 49 (D.C. Cir. 2010).

11th Circuit remands for findings beyond reasonable doubt on object offenses of conspiracy. (755) Under 1B1.2(d), a defendant convicted of a conspiracy count designating multiple object offenses should be treated as if separately convicted of conspiracy to commit each of the object offenses. Where the jury’s verdict does not indicate the offenses that were the object of the conspiracy, the court is to make the decision as a trier of fact. The 11th Circuit concluded that the district court erred by sentencing defendants as if they had conspired to commit each of the four alleged object offenses without finding, either implicitly or explicitly, that defendants had so conspired. The court should hold defendants responsible for an object offense only on a finding beyond a reasonable doubt that they had conspired to commit the offense. U.S. v. McKinley, 995 F.2d 1020 (11th Cir. 1993).

11th Circuit remands to district court to clarify standard of proof in supervisor enhancement. (755) Defendant contended that the district court used the wrong standard of proof in determining that he was an organizer, leader, manager or supervisor of the criminal activity. The court concluded that “the evidence [was] sufficient to show that at least two people were possibly working for [defendant].” The 11th Circuit found that it could not tell from the court’s language whether it utilized the proper standard, and thus remanded for resentencing to ensure the proper preponderance of the evidence standard was applied. U.S. v. Cornog, 945 F.2d 1504 (11th Cir. 1991).

11th Circuit finds firearm enhancement proper even if defendants were unaware of co-conspirator’s firearm. (755) The 11th Circuit rejected defendants’ arguments that a sentence enhancement based on their co-conspirator’s possession of a firearm during the commission of a drug offense was improper because they were unaware of the firearm. The district court found that the co-conspirator’s possession of the firearm was reasonably foreseeable. Basing the sentencing enhancement upon proof by a preponderance of the evidence rather than beyond a reasonable doubt did not violate due process. It was not unconstitutional to permit the district court to consider relevant conduct for which the defendant was neither charged nor convicted, so long as proof of that conduct has a reasonable indicia of reliability. U.S. v. Martinez, 924 F.2d 209 (11th Cir. 1991).

11th Circuit upholds consideration of funds found in defendant’s apartment. (755) Defendant pled guilty to money laundering, and was sentenced on the basis of $378,000 found in his apartment. The government contended that the district court misapplied the relevant conduct provision of the guidelines by failing to consider the amount of money involved in the total scheme rather than just the funds attributable directly to defendant. The 11th Circuit upheld the district court’s action. The government bore the burden of proof on this issue. A review of the record indicated that the district court understood it was to consider the total amount of funds involved in the criminal conduct. The district court’s calculation included the funds seized at defendant’s apartment and the monies he admitted delivering that day. U.S. v. De La Rosa, 922 F.2d 675 (11th Cir. 1991).

11th Circuit upholds consideration of conduct relating to counts on which defendant was acquitted. (755) The 11th Circuit held that a district court may consider evidence of the defendant’s conduct relating to counts on which the defendant was indicted but acquitted at trial. Acquitted conduct may be considered because a verdict of acquittal demonstrates a lack of proof beyond a reasonable doubt, which is a standard of proof higher than that required for consideration of relevant conduct at sentencing. U.S. v. Averi, 922 F.2d 765 (11th Cir. 1991).

11th Circuit holds cocaine weight need only be established by a preponderance of the evidence. (755) Defendant maintained that the district court erred in allowing the government to establish the weight of the cocaine for sentencing purposes under a preponderance of the evidence standard. The 11th Circuit rejected this contention. Due process only requires a district court to make factual determinations at sentencing by a preponderance of the evidence. The statute under which defendant was convicted did not include weight or quantity as an element of the offense. The weight of the cocaine was established by the testimony of a DEA agent, and a logbook entry from the drug storage warehouse. This was sufficient to establish the weight by a preponderance of the evidence. U.S. v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990).

11th Circuit reaffirms that preponderance of the evidence standard applies at sentencing hearing. (755) The 11th Circuit found that the district court did not err in applying a preponderance of the evidence standard at dant’s sentencing hearing. U.S. v. Ignancio Munio, 909 F.2d 436 (11th Cir. 1990).

11th Circuit rules due process does not prevent consideration of conduct outside offense of conviction. (755) Defendant argued that it violated due process for the district court to base his offense level an the total amount of cocaine involved in offenses with which he was originally charged, rather than the lesser amount for which he was convicted. The 8th Circuit rejected this argument, holding that due process does not prevent consideration of conduct outside the offense of conviction. Moreover, due process is met if the facts are established by a preponderance of the evidence. Here, the trial court had a reliable evidentiary basis for concluding that over 500 grams of cocaine were involved in the total offense. U.S. v. Castellanos, 904 F.2d 1490 (11th Cir. 1990).

11th Circuit holds that court must state reasons for choosing a point within the range only when the range exceeds 24 months. (755) 18 U.S.C. § 3553(c)(1) provides that if the guideline range “exceeds 24 months” the court shall state its reasons for imposing a sentence at a particular point within the range. Defendant argued that since his total sentence exceeded 24 months, the court erred in not stating its reasons for choosing a point within the range. The 11th Circuit held that the defendant “misreads the statute.” Reasons are required only when the range exceeds 24 months. Although the defendant received a sentence in excess of 24 months, the sentencing range under the guidelines was only 6 months. Therefore § 3553 did not apply. U.S. v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other grounds by U.S. v. Morrill, 984 F.2d 1136 (11th Cir. 1993).

11th Circuit rules that “preponderance of evidence” standard of proof applies to conduct not covered by counts of conviction. (755) Defendant argued that the standard of proof for conduct not covered by counts of conviction should be “beyond a reasonable doubt.” The 11th Circuit disagreed, holding that a “preponderance of the evidence” standard satisfies due process requirements. U.S. v. Alston, 895 F.2d 1362 (11th Cir. 1990).

D.C. Circuit holds that eight-level increase did not need clear and convincing evidence. (755) Defendant was convicted of interstate transportation of a minor with intent to engage in criminal sexual activity and possession of child pornography. The district court applied a cross-reference in § 2G1.1(c)(1) and § 2G2.4(c)(1) for an offense intended to produce child pornography, which resulted in an eight-level increase in defendant’s offense level. The D.C. Circuit rejected defendant’s claim that the eight-level increase required clear and convincing proof that his offenses included conduct that had as its purpose the production of child pornography. The application of the preponderance standard at sentencing generally satisfies due process. Although the Third Circuit has held that the clear and convincing standard was required for a nine-level upward departure for extreme conduct, in that case the departure would have negated the effect of the defendant’s guilty plea and undermined principles of proportionality. See U.S. v. Paster, 173 F.3d 206 (3d Cir. 1999). Defendant’s case, by contrast, did not present such an extreme case. The cross reference increased defendant’s base offense level on the basis of conduct closely related to the charged crime, and therefore the sentencing enhancement was not “the tail that wagged the dog of the substantive offense.” There was ample evidence to support the use of the cross reference. Defendant had taken sexually explicit photos of each of the six minor victims, and the testimony of the victims supported the finding that defendant’s transportation of the minors was motivated at least in part by a desire to create these visual depictions. U.S. v. Long, 328 F.3d 655 (DC. Cir. 2003).

D.C. Circuit says failure to apply heightened standard of proof in drug case was not plain error. (755) Defendant argued for the first time on appeal that, in light of the near ten-fold increase in his sentence as a result of the quantity of attributed drugs, the government must prove facts underlying the attribution by clear and convincing evidence. The D.C. Circuit has never applied the “clear and convincing” standard at sentencing. Other circuits have rejected the heightened burden of proof, and the Third Circuit, which pioneered the standard, see U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), has refused to apply it in cases similar to defendant’s case. See U.S. v. Paulino, 996 F.2d 1541 (3d Cir. 1990). Where the increased punishment is based solely on the charged and convicted conduct, such as in drug cases, where the drug quantity determines the offense level and no upward departure from the guideline range is contemplated, courts have been less likely to apply a heightened standard. Given the lack of clarity concerning the standard, the D.C. Circuit found no “clear” or “obvious” error that would warrant reversal. U.S. v. Graham, 317 F.3d 262 (D.C. Cir. 2003).

D.C. Circuit says obstruction for reasons other than perjury not subject to more stringent proof. (755) Police stopped a car driven by defendant and found a loaded pistol hidden near the car’s steering wheel. They also found cocaine base in the pockets of defendant’s passenger. At trial the passenger testified that both the drugs and the gun belonged to defendant. He also said that defendant had offered him money or drugs to say that the gun was the passenger’s rather than defendant’s. The D.C. Circuit affirmed an obstruction of justice enhancement based on defendant’s attempt to have the passenger claim ownership of the gun. The obstruction did not need to be established by clear and convincing evidence. The case relied on by defendant, U.S. v. Montague, 40 F.3d 1251 (D.C. Cir. 1994), only requires clear and convincing evidence for obstruction enhancements based on a defendant’s perjury. The evidence was sufficient to support the enhancement. The fact that the jury acquitted defendant of drug charges did not mean that the court erred in crediting the passenger’s testimony. It was impossible to know why the jury acquitted defendant. Moreover, even if the jury disbelieved the passenger about the ownership of the drugs, it may have believed him with respect to the subornation of perjury. U.S. v. Dozier, 162 F.3d 120 (D.C. Cir. 1998).

D.C. Circuit says drug quantity increase does not require clear and convincing evidence. (755) A co-defendant testified that defendant had supplied him with at least an ounce (28 grams) of cocaine base for distribution on “hundreds” of occasions from 1987 to 1993. The district court credited this testimony and found defendant had distributed at least 2.8 kilograms of cocaine. Defendant argued that his co-defendant was an unreliable witness. The testimony resulted in him being sentenced for more than 10 times the amount of drugs alleged in the indictment and more than 40 times the amount found in his possession at his arrest. He further contended that this extraordinary increase required clear and convincing evidence rather than simply a preponderance of the evidence. The D.C. Circuit, finding the case indistinguishable from U.S. v. Lam, 966 F.2d 682 (D.C. Cir. 1992), rejected the need for the clear and convincing evidence standard here. Defendant’s sentence was based solely on the conduct of which he was actually convicted ¾ the cocaine base conspiracy. Moreover, defendant conceded that he was convicted of possessing 67.8 grams of crack, an amount that yielded a base offense level of 32. The 2.8 kilogram amount used by the district court resulted in a base level of 38, a six-level difference, as in Lam. The district court found the co-defendant to be a credible witness, and defendant did not point to any contrary evidence. U.S. v. Toms, 136 F.3d 176 (D.C. Cir. 1998).

D.C. Circuit upholds obstruction enhancement based on lies at bond hearing. (755) At defendant’s arraignment and bond hearing, he falsely identified the home of his girlfriend’s mother as his own residence for the preceding 10 years. The district court found that he had perjured himself and enhanced his sentence for obstruction of justice. On appeal, the D.C. Circuit held that the court’s “emphatic language” was sufficient under U.S. v. Montague, 40 F.3d 1251 (D.C. Cir. 1995) to reflect its finding by clear and convincing evidence that defendant provided materially false information to the court. Under Montague, the findings necessary to support the enhancement depend on the nature of the case. Easy cases, in which the evidence of perjury is indisputable, require less in the way of factual findings. This was such a case. All of the evidence indicated that defendant never physically resided at the address he provided the court. The mother told the probation officer that defendant had never lived in her house. Defendant’s own voter registration and bankruptcy petitions revealed various addresses over the 10-year period, none of which corresponded to the mother’s home address. U.S. v. Sobin, 56 F.3d 1423 (D.C. Cir. 1995).

D.C. Circuit requires clear and convincing evidence of perjury for obstruction enhancement. (755) The district court based an obstruction enhancement on its finding, by a preponderance of the evidence, that defendant had testified falsely at trial. The D.C. Circuit reversed, holding that the clear and convincing evidence standard must be used to evaluate a defendant’s testimony for perjury under § 3C1.1. The admonition in note 1 to evaluate a defendant’s testimony “in a light most favorable to the defendant” raises the standard of proof above the preponderance of the evidence standard that applies to most other sentencing determinations. The clear and convincing evidence standard most closely resembles the standard to be applied. The court recognized that other circuits have interpreted the note differently, and suggested that the Sentencing Commission “rewrite its application notes to § 3C1.1 so that they are intelligible to all circuits.” U.S. v. Montague, 40 F.3d 1251 (D.C. Cir. 1994).

D.C. Circuit upholds consideration of drugs involved in acquitted counts. (755) Defendant was convicted of distributing .199 grams of cocaine and acquitted of possessing with intent to distribute 12.72 grams possessed by a co-defendant. Defendant argued that the court should not have considered the 12.72 grams of cocaine in the acquitted count in sentencing him. The D.C. Circuit joined 10 other circuits in holding the sentencing guidelines allow the use of conduct underlying acquitted counts. There was no double jeopardy violation: defendant did not receive a separate sentence for the possession count; the acquitted count merely affected the point within the statutory range at which his sentence was imposed. There was no due process violation. A not guilty verdict is not equivalent to a finding of complete innocence. It merely indicates that guilt beyond a reasonable doubt was not proven. Due process is satisfied if matters considered at sentencing are established by a preponderance of the evidence. Judge Randolph concurred. U.S. v. Boney, 977 F.2d 624 (D.C. Cir. 1992).

D.C. Circuit refuses to require clear and convincing standard to determination of drug quantity. (755) Defendant was convicted of conspiracy to distribute a detectable quantity of heroin, but was found at sentencing, by a preponderance of the evidence, to be responsible for 3.4 kilograms of heroin. The D.C. Circuit rejected defendant’s claim that the determination of drug quantity at sentencing was such a critical factor that it should be made on the basis of clear and convincing evidence rather than the lesser preponderance of the evidence standard. Although the Supreme Court has held that when a significant interest is at stake, due process may require a court to find particular facts under the clear and convincing standard, this additional protection has not been extended to sentencing considerations. The court did not foreclose the possibility that in extraordinary circumstances a clear and convincing standard may be required, but found that defendant’s situation did not present such a circumstance. U.S. v. Lam Kwong-Wah, 966 F.2d 682 (D.C. Cir. 1992), overruled on other grounds by U.S. v. Fields, 242 F.3d 393 (D.C. Cir. 2001), on rehearing, U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001).

D.C. Circuit holds that defendant’s perjury need not be implausible to justify obstruction enhancement. (755) The D.C. Circuit held that a defendant’s false testimony need not be implausible or particularly flagrant to justify the enhancement under section 3C1.1. The sentencing judge need only find that the defendant willfully committed, suborned or attempted to suborn perjury to obstruct justice. The admonition in application note 1 to evaluate the defendant’s testimony “in a light most favorable to the defendant” apparently raises the standard of proof above the preponderance of the evidence standard applicable to most other sentencing determinations, but it does not require proof of something more than ordinary perjury. To limit enhancements only to internally inconsistent testimony or flagrant lying would be to reward the “polished prevaricator while punishing those less practiced in the art of deception.” Here, the enhancement was proper, because although defendant’s testimony was not wildly implausible, if believed, it would have been a complete bar to conviction. Judge Wald dissented. U.S. v. Thompson, 962 F.2d 1069 (D.C. Cir. 1992).

D.C. Circuit allocates burden of proof for entrapment defense for relevant conduct in the same way as at trial. (755) Defendant pled guilty to distributing cocaine. At sentencing, the government attempted to prove, as relevant conduct, defendant’s involvement in dealing crack. Defendant did not deny his crack dealing, but alleged that an undercover agent had entrapped him into selling the crack. The D.C. Circuit rejected defendant’s claim that the district court improperly placed the entire burden of proving entrapment on him. The court held that the burden of proving an entrapment defense with respect to relevant conduct should be same as at trial. Accordingly, the defendant bears the initial burden of demonstrating inducement; once the defendant meets that burden, the ultimate burden of persuasion shifts to the government to prove predisposition. Here, the district court found no threats, no fraudulent misrepresentations, no solicitation, no improper persuasion that would constitute inducement. Thus, the burden never shifted to the government to prove predisposition. U.S. v. Salmon, 948 F.2d 776 (D.C. Cir. 1991).

Article attacks constitutionality of preponderance standard at sentencing. (755) Steven M. Salky and Blair G. Brown argue that the constitution requires a higher burden of proof than preponderance of the evidence, at least when disputes about uncharged conduct significantly affect a defendant’s sentence. The authors argue that the Sentencing Reform Act gives rise to a distinct liberty interest in a sentence below the statutory maximum. Employing the balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976), the authors conclude that the preponderance standard often fails to comply with constitutional requirements of due process. Steven M. Salky, and Blair G. Brown, The Preponderance of Evidence Standard at Sentencing, 29 Am. Crim. L. Rev. 907-18 (1992).

Query	Gets the documents with
stock market	‘stock’ or ‘market’ or both
“stock market”	the phrase ‘stock market’
+stock +market	‘stock’ and ‘market’
+stock -market	‘stock’ but not ‘market’
+president -“United States”	‘president’ but not ‘United States’
(stock OR market) AND NOT president	‘stock’ or ‘market’, and without ‘president’