§770 Information Relied On/Hearsay
(for Acquitted, Uncharged, Dismissed Conduct, see §§175, 270, 718)
1st Circuit reverses where information relied on was not revealed to defendant before hearing. (770)(800) At defendant’s supervised release revocation hearing, the district court varied upward, relying on the fact that defendant had engaged in specific conduct regarding sexual abuse. The First Circuit reversed because these allegations had not been revealed to defendant before the hearing and therefore could not serve as the basis for finding that defendant violated his supervised release. U.S. v. Ramos-Carreras, __ F.4th __ (1st Cir. Dec. 1, 2022) No. 21-1747.
1st Circuit finds defendant waived challenge to video revocation and sentencing under CARES Act. (770) (800) Defendant committed a new crime and violated his supervised release. With defendant’s consent, the revocation hearing and sentencing were conducted by videoconference, in accordance with the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Nevertheless, on appeal, defendant argued that conducting the proceedings on video violated his constitutional rights. The First Circuit found that defendant had waived any claim by consenting to the video proceedings. U.S. v. Rodriguez-Monserrate, __ F.4th __ (1st Cir. Dec. 30, 2021) No. 20-1905.
7th Circuit affirms allowing victims’ attorney to participate in sentencing. (770) At defendant’s sentencing for embezzling $70 million from a family, the district court allowed the family’s attorney to file a sentencing memorandum and make statements at sentencing. The district court also relied on the attorney’s proffer at sentencing. Defendant argued that this transformed the victims into de facto parties, in violation of the Crime Victims’ Rights Act and that the court relied on inaccurate information from the victims’ attorney. The Seventh Circuit found that the district court “did precisely the right thing” in accepting the victims’ written and oral submissions. The panel noted that it has condemned actual victim participation, not de facto participation, and defendant failed to show that the district court relied on false information. U.S. v. Issa, __ F.4th __ (7th Cir. Dec. 27, 2021) No. 20-2949.
7th Circuit says arrest record can be properly considered at sentencing. (770) At defendant’s sentencing for drug trafficking, the district court considered the fact that defendant had been arrested for the same offense multiple times. The Seventh Circuit held that a defendant’s arrest record is a proper consideration for the district court at sentencing. Both the governing statute, 18 U.S.C. § 3661, and § 4A1.3(a) of the Sentencing Guidelines allow for consideration of defendant’s arrest record. U.S. v. Mansfield, __ F.4th __ (7th Cir. Dec. 28, 2021) No. 20-2981.
6th Circuit affirms despite court’s asking if males “age-out” of committing crimes. (770) At defendant’s sentencing for drug trafficking, the district court asked whether males “age out” of committing crimes. The Sixth Circuit affirmed the sentence, finding no connection between the sentence and the court’s question. U.S. v. Hymes, __ F.4th __ (6th Cir. Dec. 3, 2021) No. 20-5905.
9th Circuit clarifies standards of review for hearsay admitted at sentencing. (770)(870) The Ninth Circuit held that the question of procedural reliability of a hearsay statement offered by the government at sentencing, i.e., that defendant had an adequate opportunity to confront the corroborative evidence supporting the hearsay, is a legal question that the court of appeals reviews de novo. The court held that substantive reliability, i.e., whether statements received at sentencing are from reliable sources or are consistent enough with one another to support their probable truth, is a factual question subject to clear error review. U.S. v. Franklin, __ F.4th __ (9th Cir. Nov. 23, 2021) No. 20-30136.
11th Circuit affirms refusal to consider Religious Freedom Restoration Act in sentencing. (770) At sentencing for entering a naval base and engaging in “symbolic disarmament,” defendant argued for a reduced sentence based on the Religious Freedom Restoration Act. The district court declined to consider the Act, but did vary downward from the guidelines because of defendant’s health. Defendant did not object, but argued for the first time on appeal that this was error. Reviewing for plain error, the Eleventh Circuit found no Supreme Court or Eleventh Circuit decision requiring a court to consider the RFCA at sentencing. Accordingly, any error was not “plain.” U.S. v. Grady, __ F.4th __ (11th Cir. Nov. 22, 2021) No. 20-14341
6th Circuit find no error in failing to address post-sentence rehabilitation on remand. (197)(770) The Sixth Circuit remanded for reconsideration of defendant’s sentence. On remand to reconsider defendant’s sentence, the district court declined to address defendant’s arguments that his post-sentence rehabilitation justified a shorter sentence. The Sixth Circuit affirmed, holding that defendant’s rehabilitation was outside the scope of the remand and that, in any event, a district court is not required to address every factor that the defendant raises. U.S. v. Hymes, __ F.4th __ (6th Cir. Dec. 3, 2021) No. 20-5905.
9th Circuit rejects due process challenge to use of hearsay at sentencing. (135)(770) At defendant’s sentencing for a firearms offense, the government admitted hearsay evidence that defendant had obstructed justice. Defendant argued that admission of the evidence violated due process because it was not minimally corroborated. The Ninth Circuit held that the government had adequately corroborated the evidence and that the evidence corroborated other evidence that the government introduced. U.S. v. Franklin, __ F.4th __ (9th Cir. Nov. 23, 2021) No. 20-30136.
7th Circuit says audio file not publicly available was properly considered at sentencing. (770) At defendant’s sentencing for drug trafficking, the district court considered an audio file that was not publicly available but was made available to defendant before sentencing. The Seventh Circuit held that district courts routinely review evidence at sentencing that is not publicly available, and the audio file was provided to the appellate court so that all members of the panel could review it. U.S. v. Yang, __ F.4th __ (7th Cir. Nov. 19, 2021) No. 21-1059.
8th Circuit affirms despite unsupported statement that drugs contained fentanyl. (240)(770) Defendant pleaded guilty to heroin distribution. At sentencing, the district court mentioned that the heroin contained fentanyl, even though the government did not present evidence that the heroin that defendant sold contained fentanyl. Nevertheless, on appeal, the Eighth Circuit found that the district court did not rely at sentencing on its unsupported statement that the heroin contained fentanyl, and affirmed the sentence. U.S. v. Wise, __ F.4th __ (8th Cir. Nov. 5, 2021) No. 20-3152.
1st Circuit finds no reliance on dismissed charges in sentencing. (770) Defendant pleaded guilty to possession of a firearm by a felon, and was sentenced to the high end of the guidelines range—46 months. On appeal, defendant argued that the district court had improperly considered dismissed criminal charges. The First Circuit rejected the argument, finding that the district court had merely recited defendant’s criminal history, including the dismissed charges, but had not relied on them in imposing sentence. U.S. v. Ruperto-Rivera, __ F.4th __ (1st Cir. Oct. 12, 2021) No. 20-1817.
7th Circuit finds judge did not rely his Mexican heritage at drug sentencing. (770) The district judge varied downward to sentence defendant to 28 years for participating in a drug cartel with ties to Mexico. Despite the downward variance, defendant argued that his sentence was improperly influenced by the judge’s Mexican heritage and defendant’s claim that he had been tortured in Mexico. The Seventh Circuit observed that national origin is never an appropriate ground for sentencing, but found that neither the judge’s Mexican heritage nor defendant’s torture claims played a role in defendant’s sentence. U.S. v. Beltran-Leon, __ F.4th __ (7th Cir. Aug. 13, 2021) No. 19-2615.
7th Circuit says defendant was not punished for failing to testify. (770) Defendant was convicted of participating in a transnational drug cartel. During sentencing, the district court asked four times whether defendant would testify in support of allegations that Mexican authorities had tortured him, but the court later clarified that it had not used defendant’s failure to testify against him. The district court also countered defendant’s claim of torture with a newspaper article stating that 750 Mexican officers had been killed in the drug war. The Seventh Circuit found that the district court had not used extra-record material in sentencing and the comments about defendant’s failure to testify were simply an effort to determine if there was any proof that Mexican authorities had tortured defendant. U.S. v. Beltran-Leon, __ F.4th __ (7th Cir. Aug. 13, 2021) No. 19-2615.
1st Circuit reverses where district court relied on criminal complaint at sentencing. (770) At defendant’s sentencing for illegal reentry after deportation, the district court relied on a state criminal complaint that stated that defendant had a knife that he used to cut a victim. Defendant had pleaded guilty only to possession of a bladed weapon. The First Circuit reversed for resentencing, ruling that the district court erred in relying on the criminal complaint for the proposition that defendant had cut his victim. U.S. v. Castillo-Perez, __ F.4th __ (1st Cir. Aug. 11, 2021) No. 21-1243.
7th Circuit finds child porn collection was indicator of recidivism. (310)(770) Defendant argued that at his sentencing for sexually abusing two minors, the district court improperly considered defendant’s child pornography collection in concluding that he might abuse other minors in the future. The Seventh Circuit found no error, ruling that a defendant’s child pornography collection is an indicator of recidivism. Resnick v. U.S., __ F.4th __ (7th Cir. Aug. 3, 2021) No. 20-1221.
4th Circuit rules judge’s statement that defendant “would pay” for obstruction did not show bias. (770) Defendant was convicted of drug trafficking. At sentencing, the district court stated that defendant “would pay” for his attempted obstruction of justice and that defendant was “belligerent” and attempted to delay the proceedings. The Fourth Circuit found the district court’s statements did not show bias on the part of the district court and that the court carefully weighed the 18 U.S.C. § 3553(a) factors. U.S. v. Rose, __ F.3d __ (4th Cir. July 9, 2021) No. 19-4755.
7th Circuit holds Rules of Evidence do not apply at sentencing. (770) At defendant’s sentencing for child pornography offenses, the government called a witness who testified that defendant might molest a child if in a private place with the child. Defendant objected that the witness was not qualified as an expert. The Seventh Circuit held that the Rules of Evidence do not apply at a sentencing hearing, and in any event, the district court did not consider the witness to be an expert. U.S. v. Hogue, __ F.3d __ (7th Cir. May 24, 2021) No. 19-2354.
7th Circuit finds sentencing court’s misstatement did not affect sentence. (770) At defendant’s sentencing for fraud and other offenses, the district court mistakenly stated that defendant had called a witness who had lied on the stand. The government immediately corrected the court and stated that a codefendant had called the witness. The district court corrected itself and referred to the witness as a defense witness, but maintained that the witness lied. The Seventh Circuit found that the court did not rely on its misstatement about who called the witness. U.S. v. Jarigese, __ F.3d __ (7th Cir. June 2, 2021) No. 20-1485.
1st Circuit says court’s brief mischaracterization of prior did not invalidate sentence. (770) At defendant’s sentencing for possession of a firearm by a felon, the district court mistakenly characterized defendant’s prior offense as a firearms offense. In reality, defendant had a prior conviction for drug trafficking that began when he pointed a gun at a police officer. Defendant objected to the characterization, and the court corrected itself. The district court ultimately varied upward from the guidelines range. The First Circuit found that the district court’s error in initially stating defendant’s criminal history did not invalidate the sentence. U.S. v. Rodríguez-Cruz, __ F.3d __ (1st Cir. May 12, 2021) No. 20-1072.
8th Circuit relies on photo metadata to find prior convictions were less than 15 years old. (504)(770) Guideline § 4A1.2(e)(1) says convictions more than 15 years old should not be counted in criminal history. Here, defendant was convicted of possession of a firearm by a felon, and at sentencing, the government introduced a photograph of defendant in possession of a firearm. Metadata for the photograph showed that it was taken less than 15 years after defendant was released from prison for his prior convictions. Accordingly, the Eighth Circuit found no clear error in counting defendant’s prior convictions even though he was released for prison more than 15 years before the current charges were filed. U.S. v. Sawatsky, __ F.3d __ (8th Cir. Apr. 16, 2021) No. 19-3172.
1st Circuit says court’s reference to guidelines did not mean it thought they were mandatory. (770) At sentencing, the district court ordered defendant’s 87-month sentence to be served consecutively to another sentence “pursuant to” § 5G1.2. The First Circuit ruled that this statement did not mean that the district court thought the guidelines were mandatory. U.S. v. Zaya Burgos, __ F.3d __ (1st Cir. Apr. 13, 2021) No. 19-1163.
3d Circuit upholds supplementing record with binder that defense expert used while testifying. (770) At sentencing, defendant’s expert brought a binder with him and used it to support his testimony. At the end of the expert’s direct testimony, the district court directed defendant to give the government the binder, but it never arrived. On appeal, the government moved to supplement the record to include the binder, and the district court granted the motion. The Third Circuit found no error because defendant had not delivered a copy of the binder to the government and defendant relied on the subject of the binder on appeal. U.S. v. Shulick, __ F.3d __ (3d Cir. Apr. 13, 2021) No. 18-3305.
8th Circuit finds prosecutor’s misstatement did not lead district court to rely on erroneous fact. (770) At defendant’s sentencing for abusive sexual contact with a minor, the prosecutor mistakenly misstated the amount of credit for time served that defendant would receive. Nevertheless, the district court said the amount of time served was “not a factor” in its sentence. Accordingly, the Eighth Circuit held that the district court had not relied on an erroneous fact in sentencing defendant. U.S. v. Oakie, __ F.3d __ (8th Cir. Apr. 12, 2021) No. 20-1118.
1st Circuit finds district court adequately justified sentence. (770) Defendant pleaded guilty to carjacking. At sentencing, he sought a sentence below the guidelines range based on his schizophrenia and other mental health issues. The district court considered his mental health, but imposed a guidelines sentence. The First Circuit affirmed, finding that the district court considered defendant’s mental health and provided an adequate explanation for its sentence. U.S. v. Pupo, __ F.3d __ (1st Cir. Apr. 20, 2021) No. 19-1505.
8th Circuit finds no probability of lesser sentence, despite court’s factual mistake. (770) At sentencing, the district court mistakenly stated that when defendant murdered the victim, the person next to the victim was the victim’s wife, when in fact it was the victim’s cousin. The Eighth Circuit affirmed the sentence, finding no reasonable probability that the district court would have imposed a different sentence if it had correctly identified the family relationships. U.S. v. Shoulders, __ F.3d __ (8th Cir. Feb. 25, 2021) No. 19-2832.
5th Circuit allows court to rely on presentence report, absent contrary evidence. (770) At defendant’s sentencing for attempted enticement of a minor to engage in sexual activity, the district court varied upward based on two uncharged incidents described in the presentence report. Defendant argued that information in the presentence report was erroneous. The Fifth Circuit found that the presentence report detailed each incident with sufficient reliability to shift the burden to defendant. Because defendant did not offer any contrary evidence, the court found the presentence report reliable. U.S. v. Peterson, __ F.3d __ (5th Cir. Oct. 6, 2020) No. 19-11143.
5th Circuit finds district court did not treat guideline sentence as presumptively reasonable. (770) At defendant’s sentencing for health care fraud, her guidelines range was 324 to 360 months, but the district court varied downward to 240 months. On appeal, defendant argued that despite the downward variance, the sentence was too high because the district court said it needed to stay within the guidelines range, suggesting that it improperly presumed that the guidelines range was reasonable. The Fifth Circuit found no error, holding that in context, the district court’s statement did not mean that it treated the guidelines as presumptively reasonable. U.S. v. Gozes-Wagner, __ F.3d __ (5th Cir. Sept. 28, 2020) No. 19-20157.
4th Circuit upholds consideration of good-time credits at sentencing. (770) Defendant pleaded guilty to production and possession of child pornography. At sentencing, the district court provided a detailed synopsis of the factors supporting its 40-year sentence, noting that defendant would be released from prison around his 60th birthday if he received good-time credits. The Fourth Circuit found no error because the court only considered the credits as they related to defendant’s age at release, not as a stand-alone factor. Defendant’s age at release was important to both his potential recidivism and the prospect of rehabilitation. U.S. v. Fowler, __ F.3d __ (4th Cir. Jan. 27, 2020) No. 18-4755.
6th Circuit vacates sentence where court relied on undisclosed information. (770) Defendant pleaded guilty to being a felon in possession of a firearm. At sentencing, the district court varied upward from the guidelines range based in part on an incident in which defendant was found shot in the head with a firearm in his waistband. The Sixth Circuit found that defendant had no notice that the district court would consider this information, and that defendant was prejudiced by the court’s reliance on it. Defendant’s sentence was vacated. U.S. v. Hatcher, __ F.3d __ (6th Cir. Jan. 13, 2020) No. 18-4092.
1st Circuit says sentencing court can consider possibility that defendant will be deported. (770) Defendant was a citizen of the British Virgin Islands. At defendant’s sentencing for drug trafficking, the district court noted that it was “possible” that defendant may be deported but declined to rely on defendant’s deportation in sentencing him. The First Circuit found that defendant’s deportation was “likely,” but the district court did not clearly err in stating that deportation was uncertain. Nevertheless, the court held that a district court has discretion under 18 U.S.C. § 3553(a) to consider the possibility that the defendant will be deported. U.S. v. Hercules, __ F.3d __ (1st Cir. Jan. 9, 2020) No. 18-1965.
10th Circuit finds no reliance on defendant’s silence at sentencing. (770) At defendant’s sentencing for possession of a firearm by a felon, the district court credited the testimony of a law enforcement officer that defendant had pointed the firearm at the officer while defendant was fleeing. The district court commented that it was “a little surprised” that defendant did not testify that he did not point the gun at the police officer. Reviewing for plain error, the Tenth Circuit found that the district court’s comments were “ambiguous,” but that the district court did not base defendant’s sentence on defendant’s silence. U.S. v. Robertson, __ F.3d __ (10th Cir. Jan. 6, 2020) No. 18-2165.
7th Circuit says race cannot be considered in sentencing for child porn. (120)(310)(770) At defendant’s sentencing for child pornography offenses, defendant relied on the Child Pornography Offender Risk Tool and Correlates of Admission of Sexual Interest in Children to suggest that he was unlikely to commit future crimes because he is white. The district court rejected that argument. The Seventh Circuit upheld the district court’s “recoiling” from studies that factor in race and found that imposing different sentences based on race would violate the Equal Protection Clause. U.S. v. Grisanti, __ F.3d __ (7th Cir. Nov. 22, 2019) No. 19-1576.
5th Circuit finds no plain error in single misstatement of criminal history. (504)(770) At defendant’s sentencing for drug trafficking, the district court varied upward, stating that defendant had been in the drug business since his arrest in 2005. In reality, defendant had been convicted in 2005 for having a firearm in a school zone—not for having drugs. Reviewing for plain error, the Fifth Circuit noted that the district court correctly characterized defendant’s 2005 conviction at other times during the sentencing and that defendant always had a gun when arrested. The presentence report also correctly described the 2005 conviction. Thus, although the district court “erroneously stated” that defendant had drugs during his 2005 arrest, there was no other evidence that the court believed that defendant had a drug conviction in 2005. U.S. v. Johnson, __ F.3d __ (5th Cir. Nov. 22, 2019) No. 18-50826.
11th Circuit finds misstatement at sentencing did not affect sentence. (770) At defendant’s sentencing for fraud offenses, the district court mistakenly said that defendant had paid back a loan, when in fact he had never received the loan. Nevertheless, the Eleventh Circuit found that the district court’s statement did not affect defendant’s sentence because defendant had not objected to the presentence report, which accurately stated that the loan had never been received, and the district court sentenced defendant because the loan company had not suffered any loss. U.S. v. Waters, __ F.3d __ (11th Cir. Sept. 10, 2019) No. 18-11333.
5th Circuit finds no improper reliance on another case. (770) At defendant’s sentencing for illegal reentry after deportation, the district court noted that defendant had three prior convictions for driving while intoxicated and sentenced defendant above the guidelines range. The court mentioned that in another case, a defendant had fallen asleep at the wheel and killed someone. The Fifth Circuit held that the court’s comment about another case did not show that the court improperly considered the circumstances of that case in sentencing defendant and that the court mentioned the other case only to show that driving while intoxicated could harm another person. U.S. v. Botello-Zepeda, __ F.3d __ (5th Cir. Aug. 6, 2019) No. 18-40595.
7th Circuit finds that district court considered age at sentencing. (770) Defendant pleaded guilty to drug trafficking and received a 120-month sentence. On appeal, he argued that the district court did not consider his age of 34 when sentencing him because consideration of his age would have yielded a lower sentence. The Seventh Circuit found that the district court took defendant’s age into consideration by mentioning that he was a 34-year-old man. U.S. v. Brown, __ F.3d __ (7th Cir. Aug. 7, 2019) No. 18-2644.
7th Circuit upholds basing firearms sentence on white supremacist beliefs. (120)(330)(770) Defendant pleaded guilty to possession of a firearm by a felon. In a pre-sentence interview, defendant repeatedly stated that he believed in white supremacy and that he wished to go to Germany to “embrace his Nazi heritage.” The district court found his guidelines range was 51 to 63 months, and sentenced him to 48 months. The court noted that defendant had amassed 17 criminal convictions since he was 18 and that “a person holding [white supremacist views] has so little respect for the law.” The court also found that defendant’s white supremacist beliefs were evidence of his continued dangerousness. The Seventh Circuit found that although a person may not be punished solely for holding reprehensible idea, those ideas, when combined with a person’s history and character traits, can be relevant to sentencing. U.S. v. Schmidt, __ F.3d __ (7th Cir. July 17, 2019) No. 18-1259.
8th Circuit finds hearsay at sentencing was corroborated. (770) Defendant pleaded guilty to drug trafficking. At defendant’s sentencing, the district court heard evidence from a DEA agent concerning the quantity of drugs attributable to defendant. The DEA agent related several hearsay statements, including statements from coconspirators. The Eighth Circuit found the DEA agent’s testimony had sufficient indicia of reliability to be considered by the district court. The court noted that the coconspirators’ statements were corroborated by statements of other coconspirators, searches and seizures made by law enforcement, surveillance, and defendant’s statements in a post-arrest interview. U.S. v. Angeles-Moctezuma, __ F.3d __ (8th Cir. June 24, 2019) No. 18-3227.
5th Circuit finds no error in refusing defendant’s request to testify at sentencing. (770) At his sentencing for transporting undocumented aliens, defendant sought to testify. The district court denied the request, but did allow defense counsel to relate defendant’s statements and allowed defendant to allocute. On appeal, the Fifth Circuit affirmed, finding no error in the district court’s refusal to allow defendant to testify at sentencing. U.S. v. Garcia-Solis, __ F.3d __ (5th Cir. June 12, 2019) No. 18-40307.
8th Circuit upholds reliance on tribal court records for upward variance sex abuse case. (770) Defendant pleaded guilty to sexual abuse of a minor. At sentencing, the district court relied on a tribal court record that showed that defendant served one year in jail for “indecent liberties” with a minor. That conviction was set forth in the presentence report, and the district court noted the documents on which it was relying. Based on this conviction, the district court varied upward from defendant’s guidelines range of 30 to 37 months to impose a 60-month sentence. The Eighth Circuit held that defendant had an opportunity to challenge the tribal court documents and the district court had not relied on contested facts to vary upward. U.S. v. Cloud, __ F.3d __ (8th Cir. June 17, 2019) No. 18-1170.
10th Circuit finds that court did not err in conducting its own sentencing investigation. (770) At defendant’s change-of-plea hearing for drug trafficking, the district court expressed concern that the parties’ plea agreement did not contain all of defendant’s relevant conduct. The district court ordered Probation to conduct its own investigation, and Probation found drugs had been discovered in defendant’s car that were not mentioned in the plea agreement. The district court relied on the additional evidence at sentencing and imposed a higher sentence than the parties had agreed to in the plea agreement. The Tenth Circuit held that the district court acted properly in conducting its own investigation, that the court could act on its belief that the parties had concealed facts from it, and that the court’s comments and conduct did not show a lack of impartiality to the defense. U.S. v. Aragon, __ F.3d __ (10th Cir. Apr. 29, 2019) No. 18-1121.
7th Circuit vacates sentence because of consideration of rehabilitation. (770) At defendant’s sentencing, the district court first sentenced her to 18 months, but then increased defendant’s sentence to 20 months when the district court learned that defendant may not be able to complete a residential drug treatment program in 18 months. The Seventh Circuit vacated and remanded because the district court considered defendant’s rehabilitation, in violation of Tapia v. U.S., 564 U.S. 319 (2011). U.S. v. Kopp, __ F.3d __ (7th Cir. Apr. 23, 2019) No. 18-3172.
1st Circuit says photos showing guns and drugs were properly considered at firearms sentencing. (330) (770) At defendant’s sentencing for possession of a machinegun, the district court considered photographs that had been found on defendant’s phone and that depicted defendant and others handling drugs, drug paraphernalia, and guns. Defendant objected to the district court’s consideration of these photographs, but the First Circuit held that the photographs conveyed reliable information pertinent to defendant’s sentence. U.S. v. Viloria-Sepulveda, __ F.3d __ (1st Cir. Apr. 16, 2019) No. 18-1152.
1st Circuit says community considerations can be a factor in sentence. (330)(770) Defendant pleaded guilty to possession of a machinegun. At sentencing, the district court varied upward from the guidelines sentence based on the fact that Puerto Rico, where the offense occurred, “is a hot spot for weapons.” The First Circuit held that “[c]ommunity considerations such as the prevalence of weapons and of violent crime can justify upwardly varying a sentence for a gun possession.” U.S. v. Viloria-Sepulveda, __ F.3d __ (1st Cir. Apr. 16, 2019) No. 18-1152.
D.C. Circuit says firearm is a “dangerous weapon” regardless of whether it is capable of being fired. (284)(770) Defendant was convicted of drug charges, and received a two-level enhancement for possession of a dangerous weapon, § 2D1.1(b)(1). The weapon was a pistol that defendant carried as he conducted drug trafficking business. The gun was inscribed with “l Aguila”—Spanish for “the Eagle.” In finding that defendant possessed the pistol, the district court relied on the Mexican evidence report, which indicated that he was captured with the pistol. The court also credited two co-conspirators’ reports of having witnessed defendant in possession of a pistol. These hearsay statements were corroborated not only by one another, but also by the Mexican evidence report. The DC Circuit affirmed, and also rejected defendant’s argument that the weapon was an inoperable collector’s item. A firearm is a “dangerous weapon’ within the meaning of § 2D1.1 regardless of whether it is capable of being fired. U.S. v. Leyva, __ F.3d __ (D.C. Cir. Feb. 26, 2019) No. 17-3027.
D.C. Circuit upholds reliance on hearsay from cooperating witnesses to apply leadership increase. (431)(770) Defendant pled guilty to drug conspiracy charges. The district court applied a § 3B1.1(a) leadership enhancement, noting that all three cooperating witnesses “reported that the defendant was the top authority in charge of controlling various geographic areas in Mexico.” The statements of two witnesses were hearsay, relayed to the court by case agents. The D.C. Circuit found no error in the court’s consideration of the hearsay, finding sufficient corroboration to make the hearsay reliable. The court took care to rely only upon facts substantiated by more than one cooperator. Because the reports were mutually corroborative and the district court took due care in weighing the evidence, the court did not abuse its discretion in crediting the cooperators’ statements. U.S. v. Leyva, __ F.3d __ (D.C. Cir. Feb. 26, 2019) No. 17-3027.
6th Circuit affirms sentence of prisoner who used a cellphone to harass a woman. (350)(770) Defendant, a federal prisoner, possessed a cellphone in prison and pleaded guilty to misdemeanor possession of contraband in prison. Defendant’s offense came to light when a woman left an anonymous tip that defendant had been texting her. At sentencing, defendant claimed that he should receive a one-day sentence because he was using the cellphone to stay in contact with his family. The district court noted that the offense came to light because defendant was contacting a woman did not want defendant to contact her, and sentenced him to five months. On appeal, defendant argued that the district court found that he was harassing someone with the cellphone. The Sixth Circuit held that the district court drew reasonable inferences from the evidence. U.S. v. Parrish. __ F.3d __ (6th Cir. Feb. 12. 2019) No. 18-1178.
1st Circuit vacates where court likely based sentence on need for rehabilitation. (770) Under Tapia v. U.S., 564 U.S. 319 (2011), a court may not impose or lengthen a prison sentence to promote a defendant’s rehabilitation. At defendant’s sentencing, the district court said that a prison sentence “may assist [the defendant] to work on his rehabilitation process” and that time in prison would give defendant “the space to think, reflect and establish new goals for himself, to continue working on his rehabilitation once he is released from prison.” The First Circuit found that the district court “did or likely did rely on rehabilitation” and vacated the sentence. U.S. v. Vásquez-Méndez, __ F.3d __ (1st Cir. Feb. 8, 209) No. 18-1107.
1st Circuit reverses where probation office disclosed facts to court without telling the parties. (770) At defendant’s sentencing for being a felon in possession of a firearm, the district court may have relied on information that it received from the probation office concerning outstanding warrants in another state. This information was not shared with the parties. The First Circuit held that although ex parte communications from Probation to the court are permissible when the court is merely seeking advice or analysis, Probation may not disclose facts that bear on the district court’s sentencing calculus. U.S. v. Marrero-Pérez, __ F.3d __ (1st Cir. Jan. 25, 2019) No. 17-1346.
8th Circuit finds number of tribal convictions not relevant to upward departure. (510)(770) The presentence report prepared for defendant’s sentencing for domestic assault by a habitual offender, in violation of 18 U.S.C. § 117, stated that he had 100 prior convictions in tribal court. Tribal court convictions are not used in calculating a criminal history score, and defendant fell into criminal history category I. The district court found that defendant’s criminal history score under-represented his tribal convictions, and departed upward to criminal history category IV. On appeal, defendant argued that the court relied on “clearly erroneous facts,” because it did not find precisely how many tribal convictions he had. The Eighth Circuit found this claim “frivolous,” because defendant had at least 69 tribal convictions and the district court had found that defendant was “about as far away” from criminal history category I as possible. U.S. v. Eagle Pipe, __ F.3d __ (8th Cir. Jan. 7, 2019) No. 17-3039.
1st Circuit rejects claim that psychologist should have testified at sentencing. (770) At defendant’s sentencing for possession of a machine gun, he sought to present the testimony of a psychologist who had examined him. The government offered to stipulate to the psychologist’s report and its recommendations. The district court held that there was no need for the psychologist to testify, summarized the psychologist’s recommendations, and ordered the psychologist’s report to be added to the presentence report. On appeal, defendant argued that the psychologist should have been allowed to testify. The First Circuit found that the district court had not violated Federal Rule of Criminal Procedure 32 by declining to allow the psychologist to testify and that the district court fully considered the contents of the report. U.S. v. Contreras-Delgado, __ F.3d __ (1st Cir. Jan. 17, 2019) No. 17-1962.
1st Circuit says defendant waived claim that court erred in relying on facts. (770)(855) Defendant pleaded guilty to possession of a machinegun, in violation of 18 U.S.C. § 922(o). At sentencing, the district court relied on the presentence report’s statement that defendant admitted to a law enforcement officer that he had fired the machinegun just before he was arrested. On appeal, defendant denied admitting he fired the weapon, and claimed that the district court relied on facts that had not been established. The First Circuit found that defendant’s failure to challenge the presentence report in the district court gave the report a presumption of reliability. In any event, defendant failed to explain how the district court erred and thus waived any claim. U.S. v. Severino-Pacheco, __ F.3d __ (1st Cir. Dec. 18, 2018) No. 17-1806.
4th Circuit finds polling jury about sentencing was error but not plain. (770) On the first day of defendant’s trial for drug-trafficking, the district judge told the parties that if defendant was convicted, the judge intended to ask the jurors what they thought defendant’s sentence should be. At sentencing, the court told the parties that the jurors’ recommendation had been 19.4 years. The court sentenced defendant to 10 years. Reviewing for plain error, the Fourth Circuit found that the use of a jury poll was error, noting that there are “many reasons to doubt that any benefit can possibly be gained from considering the results of such a poll in sentencing.” But the court found that the error was not plain and therefore rejected defendant’s challenge. U.S. v. Obiora, __ F.3d __ (4th Cir. Dec. 11, 2018) No. 17-1569.
8th Circuit allows consideration of evidence from co-conspirators’ trial. (741)(770) Defendant pleaded guilty to drug-trafficking offenses. His guidelines range was 360 months to life. After considering the factors set forth in 18 U.S.C. § 3553(a), the district court imposed a 300-month sentence. The Eighth Circuit held that the district court did not err by considering evidence admitted at the trial of defendant’s coconspirators because, the court held, this evidence was reliable. The court of appeals held that the sentence was not either procedurally or substantively flawed. U.S. v. Escobar, __ F.3d __ (8th Cir. Nov. 26, 2018) No. 17-1014.
1st Circuit says using Spanish-language document in Puerto Rico violated the Jones Act. (770) Under the Jones Act, 48 U.S.C. § 864, all “pleading and proceedings” in district court in Puerto Rico must be conducted in English. Nevertheless, the government submitted a document in Spanish to show that defendant, convicted of stabbing a fellow prisoner in violation of 18 U.S.C. § 113(a)(3), satisfied the definition of career offender in § 4B1.1(a). On appeal, the government moved for a remand to allow it to present a translation of the document. The First Circuit found a Jones Act violation and ordered the case to be remanded. U.S. v. Reyes-Rivas, __ F.3d __ (1st Cir. Nov. 28, 2018) No. 16-2008.
3d Circuit affirms reliance on illegal alien’s post arrest interview statements in PSR. (770) Defendant pleaded guilty to social security fraud and harboring an illegal alien. At sentencing, the district court credited the illegal alien’s statements in a post-arrest interview with authorities over the defendant’s version of events. The court found the illegal alien’s version more persuasive given defendant’s three prior convictions for theft by deception and her repeated lies. The Third Circuit affirmed, holding that crediting the illegal alien’s version over that of defendant was not clearly erroneous. U.S. v. McClure-Potts, __ F.3d __ (3d Cir. Nov. 8, 2018) No. 17-2987.
7th Circuit accepts court’s assertion that it did not rely on inaccurate statement at sentencing. (770) At defendant’s sentencing for drug trafficking, the district court noted that defendant had been involved in the drug trade for two years. In fact, the evidence showed that defendant had only been involved for one year. In its written explanation of reasons, the court corrected itself and stated that defendant had been involved in dealing drugs for one year. On appeal, the Seventh Circuit found that the district court had not relied on inaccurate information. The rule that the oral pronouncement of sentence prevails over a written pronouncement, does not apply to a court’s explanation of its sentence. Thus, the district court could properly correct its error because its explanation did not change defendant’s sentence. U.S. v. Pennington, __ F.3d __ (7th Cir. Nov. 5, 2018) No. 18-1375.
7th Circuit allows consideration of sentences in other similar tax cases. (770) At defendant’s sentencing for mail fraud for filing false tax returns, the district court asked the government to provide the actual or intended loss amounts and the sentences for those convicted of similar schemes. The government supplied this information, and the court relied on it in sentencing defendant. The district court also relied on defendant’s “leadership role” in convincing others to be part of the scheme. On appeal, defendant argued that the district court had relied on “untested representations” about his role in the offense and other tax-fraud prosecutions. The Seventh Circuit held that the district court had a sufficient basis for its findings. U.S. v. Walton, __ F.3d __ (7th Cir. Oct. 25, 2018) No. 17-2984.
8th Circuit says state conviction was sufficient basis to revoke supervised release. (770)(800) The Probation Office alleged that defendant violated the terms of his supervised release by committing a new state offense. At the revocation hearing, defendant admitted committing the offense. The government declined to introduce further proof of the supervised release violations, stating that defendant’s conviction in state court sufficiently showed the violation. The Eighth Circuit agreed, finding that defendant’s conviction in state court was sufficient to show that he had engaged in conduct that warranted revocation of his supervised release. U.S. v. Dang, __ F.3d __ (8th Cir. Oct. 22, 2018) No. 17-2285.
11th Circuit says evidence rules do not apply at sentencing hearing. (770) Defendant was convicted of conspiracy to distribute 500 grams or more of methamphetamine. The government filed an information under 21 U.S.C. § 851, a sentencing enhancement that had the effect of requiring a mandatory minimum of 240 months if a defendant has a prior conviction for a felony drug offense. At a sentencing hearing, the district court found that defendant had a prior felony drug conviction and imposed a 240-month sentence. The Eleventh Circuit held that the district court had not erred by refusing to employ the Federal Rules of Evidence at defendant’s § 851 sentencing hearing. U.S. v. Hernandez, __ F.3d __ (11th Cir. Oct. 26, 2018) No. 17-15666.
3d Circuit rejects Tapia claim that sentence was based on need for rehabilitation. (770) At defendant’s sentencing for drug-trafficking, the district court imposed an above-guidelines sentence. The court explained that defendant, who was addicted to opiates and had relapsed several times, would have a “fighting chance” in prison to recover from her addiction. On appeal, defendant argued that the district court improperly increased her sentence based on her rehabilitation needs, in violation of Tapia v. U.S., 564 U.S. 319 (2011). The Third Circuit rejected the argument, finding that the district court had made its decision to impose a prison sentence and determined its length independently of its discussion of defendant’s addiction. U.S. v. Schonewolf, __ F.3d __ (3d Cir. Oct. 4, 2018) No. 17-2846.
7th Circuit finds child porn sentence was not improperly based on need for treatment. (770) At defendant’s sentencing for child pornography offenses, the district court said that in prison the defendant could avail himself of sex offender treatment. For the first time on appeal, defendant argued that his sentence violated Tapia v. U.S., 564 U.S. 319 (2011), because it was improperly increased based on his need for treatment. Reviewing for plain error, the Seventh Circuit found that the district court did not impose or lengthen defendant’s prison term to promote his rehabilitation. U.S. v. Burrows, __ F.3d __ (7th Cir. Oct. 9, 2018) No. 17-3292.
9th Circuit reverses where court relied on confidential information to sentence for violation of supervised release. (770)(800) A magistrate judge recommended that the district court revoke defendant’s supervised release and impose a sentence of five months. Defendant did not object to the magistrate judge’s recommendation, and without holding a hearing, the district court revoked supervised release. However, the court then imposed a 20-month sentence based on a confidential report from the Probation Office that was not shared with the parties. The Ninth Circuit vacated and remanded to give the parties an opportunity to respond to the factual information on which the district court relied at sentencing. U.S. v. Gray, __ F.3d __ (9th Cir. Oct. 3, 2018) No. 18-30022.
9th Circuit finds coconspirator plea agreements unreliable for sentencing. (240)(770) In U.S. v. Vera, 770 F.3d 1232 (9th Cir. 2014), the Ninth Circuit remanded because it found that defendants’ sentences had been based on unreliable evidence. On remand, the district court relied on defendants’ coconspirators’ plea agreements to determine the quantity of drugs involved in defendants’ offenses. The Ninth Circuit again held that the sentences were based on unreliable evidence. The coconspirators’ plea agreements did not contain statements against penal interest, as that phrase is used in Fed. R. Evid. 804(b)(3), because in the statements on which the district court relied the coconspirators were not acknowledging their own guilt. The court held that co-defendant plea agreements must be corroborated by other evidence. U.S. v. Vera, __ F.3d __ (9th Cir. June 25, 2018) No. 16-50364.
8th Circuit upholds use at sentencing of reliable hearsay statements and testimony via video link by foreign expert. (770) Defendant argued that witness statements attesting to his participation in the Rwandan Genocide, which were gathered by Department of Homeland Security investigators in Rwanda, should not have been considered at sentencing because they were “unreliable hearsay.” The Eighth Circuit disagreed, finding that the statements were sufficiently reliable. Many of the witness statements corroborated each other, and the lead investigator stated that he was able to corroborate details in witness accounts with third party sources, including independent reports prepared by the State Department. The panel also rejected defendant’s challenge to the testimony of an expert at sentencing via video link from the United Kingdom. Defendant contended that there was no way to enforce a binding oath on a non-citizen not present in the United States and thus no way to guarantee that the expert was telling the truth. The panel refused to impose a higher bar for foreign witnesses at sentencing than at trial. Fed. R. Crim. P. 15 allows depositions of foreign witnesses to be used as substantive evidence at trial. U.S. v. Ngombwa, __ F.3d __ (8th Cir. June 22, 2018) No. 17-1688.
1st Circuit upholds reliance on informants’ out-of-court statements to establish drug quantity. (254) (770) Defendant pled guilty to heroin conspiracy charges. The district court adopted the PSR’s recommendation that defendant was responsible for 1.3 kilograms of heroin. This quantity was based on grand jury testimony or interviews of nine witnesses who connected defendant to large quantities of heroin. The First Circuit upheld the court’s reliance on the out-of-court statements. A sentencing court may consider hearsay statements of confidential informants if they have sufficient indicia of reliability. Here, the witnesses’ statements about defendant’s heroin distribution were detailed, internally consistent, and mutually corroborative. Multiple witnesses also corroborated the names of defendant’s associates and “runners.” Some witnesses also personally witnessed defendant possessing and distributing heroin himself. U.S. v. Lee, __ F.3d __ (1st Cir. June 18, 2018) No. 17-1490.
1st Circuit holds defendant accountable for loss in acquitted counts. (219)(770) Defendant and Meléndez, both U.S. Army National Guard recruiters, fraudulently procured recruitment bonuses, and were convicted of wire fraud, embezzlement and conspiracy. Defendant challenged a four-level enhancement based on a loss of $20,000, asserting that the court should have considered only the $3,000 in bonus payments resulting from the three wire-fraud counts of which he was convicted. Instead, the court took into account all of the bonuses Meléndez obtained, including those tied to wire-fraud counts of which defendant was acquitted. The evidence showed that Meléndez collected at least $20,000 in bonuses for nominating 12 recruits who were all in fact recruited by defendant; that those recruits provided their personal information only to defendant; and that that information was input into Meléndez’s account. Evidence showed that Meléndez provided his password to defendant and defendant had directly input the information into Meléndez’s account. Thus, the First Circuit found that the district court had a sufficient basis to find defendant responsible for all of Meléndez’s fraudulently procured bonuses. U.S. v. Meléndez–González, __ F.3d __ (1st Cir. June 4, 2018) No. 17-1084.
7th Circuit upholds relying on PSR to find further mental treatment would not have “lasting impact.” (770) Defendant was convicted of transporting a 17-year-old girl across state lines to engage in prostitution, and was sentenced to 120 months. Defendant’s PSR chronicled his struggle with mental illness and associated behavioral problems since early childhood. Defendant did not object to the PSR’s description of his mental health history, and the district court adopted its findings at sentencing. The Seventh Circuit affirmed, noting that the facts in the PSR amply supported the conclusion that treatment was unlikely to have a “lasting impact” on defendant’s ability to refrain from criminal conduct. Defendant had been hospitalized every few years throughout his life and treated with various medications. Nevertheless, he consistently engaged in dangerous and unlawful behavior. It was proper for the district court to consider this history and conclude that further mental health treatment was unlikely to succeed in enabling him to conform to societal norms. U.S. v. Kluball, 843 F.3d 716 (7th Cir. 2016).
7th Circuit relies on defendant’s post-arrest statement to determine drug quantity. (270)(770) Defendant pled guilty to distributing heroin. During a post-arrest interview, defendant gave federal agents significant details about his relationship with the heroin operation run by Blackman. He also talked about his own heroin suppliers and described more extensive trafficking activities. The sentencing court relied on his post-arrest statement to conclude that he had distributed 427.1 grams of heroin to Blackman and an additional 30 kilograms to other customers. The Seventh Circuit found no abuse of discretion. Self-incriminating statements “have long been considered reliable enough for use at trial …, so we cannot say that they are too unreliable for use at sentencing.” The panel rejected defendant’s suggestion that the statement was not sufficiently corroborated. The drug quantity he attributed to himself would have resulted in a profit of several hundred thousand dollars. There were many potentially tainted assets: vehicles, property, and a $6,000 diamond-studded watch. In addition, defendant supported 12 children and his parents. U.S. v. Tankson, 836 F.3d 873 (7th Cir. 2016).
7th Circuit agrees that additional heroin transactions were relevant conduct. (270)(770) Defendant pled guilty to distributing heroin. During a post-arrest interview, he told federal agents about his relationship with the heroin operation run by Blackman. He also talked about his own heroin suppliers and described more extensive trafficking activities. The PSR relied on the post-arrest statement to conclude that defendant had distributed 427.1 grams of heroin to Blackman and an additional 30 kilograms in other transactions. The Seventh Circuit upheld the district court’s finding that the additional 30 kilograms constituted relevant conduct to his sales to Blackman. These transactions involved the same drug during the same timeframe, with a common accomplice, a common modus operandi, and a common purpose of a large-quantity, high-turnover trafficking operation. It was not clear error for the court to conclude that defendant had engaged in a continuous pattern of reselling drugs that he had acquired from the second supplier to individuals including Blackman. U.S. v. Tankson, 836 F.3d 873 (7th Cir. 2016).
8th Circuit upholds reliance on co-conspirators’ testimony to determine drug quantity. (254)(770) Defendant was convicted of several drug-trafficking and firearms-related charges. His PSR calculated that defendant was responsible for 200 kilograms of cocaine and 21 kilograms of crack. That quantity was based on testimony from co-conspirators Long, Thompson, and Edwards, as well as on intercepted telephone conversations that were played at trial. Defendant argued that the witnesses were not credible, but the Eighth Circuit found no error, even though Long had previously lied to the FBI about his role in the conspiracy and the amount of cocaine he had purchased, and Thompson’s testimony was inconsistent about the quantity of cocaine he had purchased. The district court acted within its broad discretion in crediting Long’s testimony and crediting the greater amount of cocaine that Thompson claimed in his testimony. U.S. v. Colbert, __ F.3d __ (8th Cir. July 8, 2016) No. 15-1374.
(252)(710)(770) U.S. v. Malone, 809 F.3d 251 (5th Cir. 2015), superseded by U.S. v. Malone, __ F.3d __ (5th Cir. July 6, 2016) No. 14-31426.
5th Circuit agrees that THC was “most closely related controlled substance” to AM-2201. (252)(770) Defendants plead guilty to conspiracy to distribute AM–2201, a controlled substance analogue. Because AM–2201 was not listed in the Drug Quantity Table or the Drug Equivalency Table, the court had to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance” to AM–2201. The Fifth Circuit upheld the district court’s conclusion that THC was the most closely related. The district court gave this matter “studied attention.” It held a day-long evidentiary hearing during which two experts testified at length. Both sides presented scientific evidence and cross-examined the other side’s expert, and the district court issued a well-reasoned oral decision. U.S. v. Malone, __ F.3d __ (5th Cir. July 6, 2016) No. 14-31426, superseding and replacing U.S. v. Malone, 809 F.3d 251 (8th Cir. 2015).
9th Circuit reverses managerial enhancement for insufficient evidence. (432)(770) At defendant’s sentencing for drug trafficking, the district court enhanced his sentence under §3B1.1(c) because the defendant directed the behavior of his coconspirators. The district court relied on an agent’s testimony at sentencing that defendant told a coconspirator’s fiancée to rent a house where drugs could be distributed. It also relied on a coconspirator’s pre-trial statement that defendant directed two individuals to deposit proceeds of drug sales into a bank account. The Ninth Circuit held that because this information had not been corroborated by trial testimony, it was not sufficiently reliable to support an increase under §3B1.1(c). U.S. v. Pimentel-Lopez, __ F.3d __ (9th Cir. July 15, 2016) No. 14-10210.
10th Circuit upholds reliance on hearsay statements implicating defendant in burglary. (770) Defendant pled guilty to possessing an unregistered, short-barrel shotgun in violation of federal law. The district court applied a four-level enhancement under §2K2.1(b)(6)(B) for using or possessing a firearm in connection with another felony. The court found that defendant had possessed the firearm in connection with the burglary of the home from which the shotgun was stolen. The court relied on hearsay statements of Hernandez, who, in a police interview, had admitted committing the burglary with defendant. The Tenth Circuit upheld the district court’s finding that Hernandez’s statements implicating defendant had sufficient indicia of reliability. Hernandez knew that defendant would have at least one firearm stolen from the burglarized home. In addition, defendant’s possession of the shotgun nine days after it was stolen provided some corroborative evidence of defendant’s involvement in the burglary. The court also relied on defendant’s long history of theft offenses—six separate guilty or no-contest pleas in less than 10 years. U.S. v. Martinez, __ F.3d __ (10th Cir. June 7, 2016) No. 15-8019.
D.C. Circuit reverses consideration of defendant’s involvement in unrelated gunfight. (770) Defendant was convicted of drug and firearms charges. At sentencing, the district court considered, as an aggravating factor, evidence that defendant was involved in an unrelated gunfight. However, the court had excluded this evidence from trial as being unduly prejudicial. The D.C. Circuit held that the district court abused its discretion by considering at sentencing the evidence of defendant’s alleged involvement in the unrelated gunfight. Pre-trial, the court had found that the eyewitness testimony and shell casings were not sufficiently probative to find that defendant had fired a weapon or participated in the shooting. At sentencing, it relied on this evidence to find that defendant was prepared to use guns in furtherance of his illegal drug business. However, the eyewitness testimony was vague – it established only that defendant was nearby when the shooting occurred, ran from the gunshots and ducked behind a car. The .45 caliber shell casings were not linked specifically to defendant’s gun and therefore had little probative value. The court’s inference that defendant either fired a weapon, was holding a gun while fleeing or even participated in the shooting was clearly erroneous. U.S. v. Kpodi, __ F.3d __ (D.C. Cir. May 31, 2016) No. 14-3037.
7th Circuit upholds reliance on witnesses who saw defendant cook meth. (254)(770) A jury convicted defendant of conspiring to manufacture methamphetamine and a single count of distribution. At sentencing the district court held defendant responsible for an estimated 400 grams of meth based on the trial testimony of defendant’s former girlfriend, Brandy Pierce, and a proffer statement by Denise Huston. Pierce testified that she had supplied defendant with precursor materials and allowed him to cook meth daily at her home over a period of several months. Huston reported that defendant had manufactured meth at her home at least 20 times in the preceding year. The Seventh Circuit upheld the court’s reliance on this testimony despite defendant’s argument that Pierce could not be believed because of her prior convictions and her repeated attempts to minimize her own role in the conspiracy. The discrepancy between Huston’s proffer statement (defendant made meth at her house at least ten different times) and her trial testimony (defendant made meth at her house at least 20 times in the previous year) did not make her testimony incredible. U.S. v. Tate, __ F.3d __ (7th Cir. May 18, 2016) No. 15-3227.
7th Circuit upholds refusal to allow defense witness who provided affidavit to also testify at sentencing. (750)(770) In determining defendant’s drug quantity, the court relied primarily on the trial testimony of co-conspirator LaSalle. Defendant argued that the judge violated due process by refusing to hear at sentencing the proposed testimony of McClinton, which defendant said he needed to counter the trial testimony of LaSalle. The Seventh Circuit disagreed. Defendant attended the sentencing hearing with counsel, who argued vigorously on his behalf, and the district court carefully considered the arguments of both sides. Defendant had ample opportunity at sentencing to contest the facts. He specifically challenged the reliability of LaSalle’s testimony by submitting McClinton’s affidavit before the hearing, and the court considered the statements made in the affidavit. The court was obviously aware that McClinton’s affidavit contradicted LaSalle’s testimony, and did not “fail to take account” of the affidavit simply by choosing not to credit it over the trial testimony of LaSalle. Nor was it an abuse of discretion for the court to find McClinton’s proffered testimony unnecessary in light of its finding that LaSalle had already credibly testified on the same subject matter at trial. U.S. v. Freeman, __ F.3d __ (7th Cir. Mar. 9, 2015) No. 15-1170.
7th Circuit relies on co-conspirator’s testimony to determine drug quantity. (254)(770) Defendant was convicted of participating in a Chicago drug conspiracy. In determining that defendant was responsible for 8.4 kilograms of cocaine base, the court relied primarily on the trial testimony of co-conspirator LaSalle. Defendant noted that LaSalle was a convicted felon and drug user who stood to gain from his testimony and who had previously lied to the government. The Seventh Circuit upheld the reliance on LaSalle’s testimony because the district court explicitly found LaSalle credible despite his shortcomings as a witness. Determining witness credibility is especially within the province of the district court and “can virtually never be clear error.” LaSalle’s testimony was not too vague to be reliable. LaSalle specifically testified that he regularly supplied defendant with one- to two-kilogram shipments of cocaine from around 2001 through April 2006. This was adequate to support the district court’s very conservative estimate. Moreover, LaSalle’s testimony was at least partially corroborated by additional evidence drawn from surveillance, trash pulls, seizures, and other witness accounts concerning the scope and volume of defendant’s drug trade. U.S. v. Freeman, __ F.3d __ (7th Cir. Mar. 9, 2015) No. 15-1170.
1st Circuit finds attorney qualified to provide expert testimony as to stock valuation. (219)(770) Defendant, the president and CEO of Vida Life, agreed to pay a kickbacks to an undercover FBI agent posing as a corrupt hedge fund manager. Vida Life would sell 400,000 restricted shares for $32,000 to the fictitious hedge fund. Once the sale was completed, defendant would kick back one-half of the investment. To prove the value of the Vida Life shares, the government proffered the affidavit of the senior counsel for the Financial Industry Regulatory Authority (FINRA), who concluded that the Vida Life stock had no value, so the loss equaled the full price paid for the shares ($32,000). The First Circuit held that the FINRA attorney was qualified to provide expert testimony as to the value of the stock. The attorney had broad experience in the fields of corporate finance, compliance, and enforcement. Although the defense expert opined that the stock was worth $16,000, the panel upheld the decision to credit the FINRA attorney’s opinion that the stock was worthless. Even unrestricted Vida Life stock traded infrequently, in small amounts, and at meager prices. The district court reasonably determined that the 400,000 shares of restricted stock were “worth less than the unrestricted shares.” U.S. v. Jordan, __ F.3d __ (1st Cir. Mar. 2, 2016) No. 15-1174.
10th Circuit says consideration of pending state charge was not reversible error. (310)(770) Defendant was convicted of distributing and possessing child pornography. His PSR reported a pending state charge for first-degree rape of a child under the age of 14. The district court varied downward from a guideline range of 262-327 months to a range of 210-262 months, and sentenced him to 210 months. It noted that it considered the pending state charge in determining the sentence within the variance guideline range. Defendant argued that the court’s consideration of his pending state-court charge violated Fed.R.Crim.P. 32(i)(3)(B), because he objected to that portion of the PSR during his allocution at sentencing, and the court failed to find by a preponderance that the PSR was accurate. The Tenth Circuit disagreed. When defendant voiced his objections, he was represented by counsel. “[A] district court does not need to consider pro se objections made by defendants represented by counsel.” More importantly, any error was harmless. The state charge did not affect defendant’s sentence. The court did not consider the state charge in calculating the sentencing range, and it ultimately imposed a sentence at the bottom of that range. U.S. v. Smith, __ F.3d __ (10th Cir. Feb. 29, 2016) No. 15-5005.
5th Circuit relies on docket sheet and Disposition of Arrest to establish prior conviction. (340)(770) The district court increased the sentence by 12 levels under §2L1.2(b)(1)(A)(ii), based on defendant’s 2003 California conviction for assault with a deadly weapon. Defendant challenged the court’s reliance on the “Disposition of Arrest and Court Action” and a 20-page docket sheet, both of which indicated that, in 2003, an individual with defendant’s name pleaded nolo contendere to violating Cal. Penal Code §245(a)(1) (assault with a deadly weapon). The Fifth Circuit held that the docket sheet and a Disposition of Arrest and Court Action bore “sufficient indicia of reliability” to support the court’s finding that defendant had previously been convicted of a crime of violence. The panel rejected defendant’s claim that records to prove a prior conviction must be obtained from a state court and prepared by a clerk. The documents here were sufficiently reliable. The docket report contained a significant amount of detail regarding the proceedings in the 2003 case, and the two documents strongly corroborated one another. Moreover, defendant did not present any information challenging the veracity of the information contained in these documents. U.S. v. Ortega-Calderon, __ F.3d __ (5th Cir. Feb. 26, 2016) No. 14-40889.
6th Circuit upholds use of hearsay at sentencing hearing. (770) A jury convicted defendant of carjacking resulting in death, and related charges. At sentencing, the government called an FBI agent to testify about an interview he had conducted with Marshall, a witness at defendant’s trial. The agent testified that Marshall reported that about a week after the murder, defendant had said “that his heart couldn’t take it anymore, that he had to get out of town, and that he had been robbing drug dealers to try to raise money to get, and stay, out of town.” The agent also testified that Marshall’s grandmother told the agent that after Marshall testified, “it appeared that somebody had tried to break into her residence,” and that all of the windows in another of Marshall’s relative’s houses “had been broken out of the house.” The Sixth Circuit held that the district court did not abuse its discretion in admitting the FBI agent’s testimony about his interviews with Marshall and Marshall’s grandmother. The Federal Rules of Evidence do not apply at sentencing, and the district court could have reasonably found that the agent’s testimony was relevant and reliable. U.S. v. Taylor, __ F.3d __ (6th Cir. Feb. 11, 2016) No. 09-5517.
6th Circuit allows evidence at sentencing of pending state rape charges. (770) Defendant pled guilty to failing to register as a sex offender. At sentencing, the government introduced evidence that defendant had committed other sexual-misconduct crimes with a minor, all of which were the subject of pending state court charges. Defendant argued that the introduction of this evidence violated due process because it burdened his ability to mount a robust defense in the state court case. The Sixth Circuit held that the introduction at sentencing of evidence related to pending state rape charges did not violate defendant’s due process rights. The due process clause demands only that a sentencing hearing be “fundamentally fair” and that the sentence turn on “reliable information.” Here, the district court permitted defense counsel to cross-examine the minor victim and her mother, to call defendant’s mother to the stand, to raise objections, and to make “extended arguments” on disputed points. The court then asked defendant whether he wished to make a statement in allocution and, when he declined, offered a detailed explanation for the 54-month sentence. Defendant received a “fundamentally fair” sentencing hearing that permitted him to test the reliability of the information submitted by the government. U.S. v. Alsante, __ F.3d __ (6th Cir. Feb. 5, 2016) No. 15-5343.
7th Circuit upholds considering police reports of defendant’s previous crimes. (770) As a career offender, defendant was subject to a guideline range of 151-188 months for his drug offense, but the judge sentenced him to only 114 months. The judge said he would have imposed an even lower sentence had it not been for the descriptions in the PSR of a 2001 and a 2005 drug possession conviction, both unrelated to the 1997 convictions that resulted in defendant’s career offender status. The judge said those the 2001 and 2005 offenses could “very easily” have been charged as distribution offenses, which are punished more heavily than charges of simple possession. Defendant complained that the description of those offenses in the PSR was based on unreliable police reports. The Seventh Circuit upheld the court’s consideration of the PSR’s summary of police reports describing the prior offenses. Judges routinely rely on information found in police reports, even though much of that information is hearsay. U.S. v. Richardson, __ F.3d __ (7th Cir. Feb. 9, 2016) No. 15-1403.
7th Circuit holds that any inadequacy of explanation for career offender sentence was harmless. (520)(770) Defendant pled guilty to cocaine charges, and was sentenced as a career offender. He argued on appeal that the court failed to adequately explain why it rejected his argument that his prior convictions were too minor to justify career offender status. The Seventh Circuit disagreed, finding “no question” that the district court considered and rejected defendant’s principal argument in mitigation. Any inadequacy in the court’s explanation was harmless. Defendant had three prior convictions for drug trafficking, and his criminal history reflected a pattern of drugs sales that began with marijuana, transitioned to cocaine, and culminated in a multi-participant trafficking operation that dealt in substantial quantities of cocaine. U.S. v. Rosales, __ F.3d __ (7th Cir. Feb. 11, 2016) No. 15-1580.
2nd Circuit finds that defendant transferred gun knowing it would be used in another felony. (330) (770) Defendant pled guilty to conspiracy to deal in firearms without a license, and related charges. He challenged a §2K2.1(b)(6) enhancement for transferring a firearm knowing it would be used or possessed in connection with another felony offense. The Second Circuit found no error in the court’s decision to credit co-conspirator Davis’s testimony that defendant gave him a gun to deliver to defendant’s cousin, a drug dealer named Reggie. Moreover, the evidence at sentencing supported the inference that defendant had reason to believe the firearms he distributed would be used in connection with other felonies. The court specifically found that defendant unlawfully sold a large number of unusually dangerous weapons – AK-47s and TEC-9s – to people he knew to be drug dealers. That was sufficient to support an inference that defendant had reason to believe the guns would be used in connection with other felonies. U.S. v. Young, __ F.3d __ (2d Cir. Jan. 29, 2016) No. 14-2383-CR.
1st Circuit allows court to consider arrests in sentencing within guideline range. (718)(770) In U.S. v. Watts, 519 U.S. 148 (1997), the Supreme Court allowed a court to consider acquitted conduct in sentencing, but only if that conduct is proven by a preponderance of the evidence. Based on Watts, defendant argued that the district court erred by considering several dismissed or acquitted charges because the facts underlying those charges were not proven by a preponderance of the evidence. The First Circuit found no error. Watts was inapposite: the sentencing court did not use dismissed or acquitted conduct in its sentencing calculus. Rather, the court used the defendant’s arrest record, which was contained in his PSR and not contested by the defendant. The arrest record was, therefore, a proven fact that was properly before the court. The district court did not plainly err in taking into account defendant’s “prolific arrest record” solely for the purpose of sentencing within the guideline range. Previous cases have distinguished a series of arrests “which might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions” from a single arrest. U.S. v. Cortes-Medina, __ F.3d __ (1st Cir. Jan. 6, 2016) No. 14-1191.
8th Circuit finds obstruction for encouraging employee to lie to government investigators. (461)(770) Defendant was convicted of employing undocumented immigrants. The district court applied an obstruction of justice enhancement based on defendant’s claims to a government investigator that one of defendant’s crew chiefs, Perez, was a subcontractor not an employee, and that Perez was responsible for hiring his own workers. The court found that defendant lied to the agent and encouraged Perez to corroborate this lie. The Eighth Circuit upheld the obstruction increase, finding no clear error in the district court’s reliance on a recorded phone call between defendant and Perez. Defendant began the call by stating that he was worried about being investigated for hiring illegal immigrants, and he spent the rest of the brief conversation reiterating that he had told the agent that Perez was a subcontractor responsible for hiring his own workers. Each time defendant recited the story he had told the agent, Perez assured him that his story would be consistent with defendant’s. When viewed in their entirety, defendant’s statements to Perez, and his reactions to Perez agreeing to corroborate his story, demonstrated that defendant encouraged Perez to lie. U.S. v. Manzano-Huerta, __ F.3d __ (8th Cir. Jan. 4, 2016) No. 15-1416.
8th Circuit relies on hearsay that defendant shot victim to support upward variance. (741)(770) Defendant was convicted of a various charges arising out of armed robberies of two drug dealers. His guideline range was 140-175 months, in additional to mandatory consecutive minimums of seven and 25 years on two 18 U.S.C. § 924(c) counts. The court varied upward and sentenced defendant to life in prison, based on the number of violent incidents, both charged and uncharged. The district court relied on the testimony of three witnesses to defendant’s alleged role in a 2012 shooting of a rival gang member. Two witnesses were police officers who were told by numerous people that defendant had committed the shooting. The third witness was the victim’s girlfriend, who testified that when the victim woke from a coma, he told her that defendant had shot him. The Eight Circuit agreed that the girlfriend’s detailed account of the events pre- and post-shooting had sufficient indicia of reliability, even though her testimony was clearly hearsay. Further, the district court’s overall sentencing decision to vary upwards to protect the public was not substantively unreasonable. The district court very thoughtfully considered defendant’s unusually active and violent criminal history and reluctantly concluded that the only just sentence was life in prison. U.S. v. Dean, __ F.3d __ (8th Cir. Dec. 29, 2015) No. 15-1263.
8th Circuit relies on agent’s hearsay of drug quantity estimates given during proffer interviews. (254)(770) Defendant was convicted of drug charges. At sentencing, the district court determined that defendant had distributed 8.42 kilograms of cocaine. At trial, two dealers gave testimony regarding the amount of cocaine they acquired from defendant. At sentencing, an FBI agent gave hearsay testimony on the dealers’ estimates given during proffer interviews. It was these estimates the district court used in its drug-quantity calculation. Defendant argued on appeal that the calculation of 8.42 kilograms of cocaine was based on unreliable hearsay testimony, but the Eighth Circuit found no clear error. Although there were inconsistencies between the proffer interviews and trial testimony, the amounts did not vary so wildly as to render the agent’s hearsay testimony unreliable. The court used the low end of each co-conspirator’s estimate to determine a total, and those amounts were within the range of estimates provided by both witnesses at trial. U.S. v. Moralez, __ F.3d __ (8th Cir. Dec. 10, 2015) No. 14-3702.
5th Circuit finds THC was “most closely related controlled substance” to AM-2201. (252)(770) Defendants plead guilty to conspiracy to distribute AM–2201, a controlled substance analogue. Because AM–2201 was not listed in either the Drug Quantity Table or the Drug Equivalency Tables, the court had to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance” to AM–2201. The district court ruled that THC was the “most closely related controlled substance.” Defendants challenged this finding on appeal, criticizing the animal studies cited by the government expert as unreliable and incapable of providing meaningful insight into the effects of AM–2201 on human users. The Fifth Circuit affirmed. The animal studies were “reasonably reliable,” and thus admissible at sentencing. The panel also upheld the district court’s conclusion that THC was the “most closely related controlled substance” to AM–2201. The district court gave this matter “studied attention.” It held a day-long evidentiary hearing during which two experts testified at length. Both sides presented scientific evidence and cross-examined the other side’s expert. After carefully considering all of this evidence, the district court issued a well-reasoned oral decision. Nothing in the record left the panel with “the definite and firm conviction that a mistake has been committed.” U.S. v. Malone, __ F.3d __ (5th Cir. Dec. 11, 2015) No. 14-31426.
7th Circuit relies on co-conspirator’s testimony to find defendant responsible for 10 kilos of heroin. (270)(770) Defendant was the leader of a street-level drug-trafficking operation. Relying on co-conspirator testimony, video records, and evidence of defendant’s violent behavior toward rival drug sellers, the district court determined that defendant controlled drug sales at the intersection of Kedzie Avenue and Ohio Street for much of 2008 and 2009. Based on this, the court found that defendant was responsible for all drugs sold by his co-conspirators during that time, i.e., more than 10 kilograms of heroin. On appeal, defendant argued that the testimony of Scott, one of his co-conspirators, was too untrustworthy to be credited. The Seventh Circuit found that defendant mischaracterized Scott’s statements, and his testimony about the division of profits was not mathematically impossible. Moreover, the judge made a narrow credibility determination that Scott was credible in his testimony about overall sales. The judge’s quantity estimates were quite conservative and not clearly erroneous. U.S. v. Austin, __ F.3d __ (7th Cir. Nov. 20, 2015) No. 14-3135.
7th Circuit upholds considering homemade videos of child porn defendant masturbating. (770) Defendant pled guilty to child pornography charges. At sentencing, he objected to the government’s sentencing memorandum’s discussion of his homemade videos, which showed defendant masturbating on a bedspread that was identical to a bedspread seen in one of the child porn videos he produced. He contended that the conduct in his videos was constitutionally protected, and because the conduct was not unlawful, he contended that it should have been excluded. The Seventh Circuit found no error. The guidelines, statutory law, and Constitution only limit consideration of certain enumerated characteristics. The video summaries discussed defendant’s actions, not his race, creed, or any other constitutionally protected characteristic. Four of the five counts of conviction involved production of child pornography. Defendant’s masturbatory conduct was relevant to the sentencing decision because the videos demonstrated that he took pleasure in producing graphic films. There was no error. U.S. v. Bour, __ F.3d __ (7th Cir. Oct. 27, 2015) No. 14-2211.
1st Circuit relies on CI’s information in PSR to support drug quantity. (270)(770) Defendant was a heroin dealer who was caught with 26.4 grams of heroin. His PSR contained information from a confidential informant (CI), who purportedly had accompanied defendant on his buying trips and had been with defendant on several occasions as he sold drugs. No law enforcement or other witness saw those sales. The CI did not testify, and so defendant never had an opportunity to cross-examine her. The First Circuit held that the court did not clearly err in relying on this information to attribute additional drugs to defendant. There was no clear error in the court’s finding that between 40 and 60 grams of heroin were involved, which supported a sentence of 75-months on the drug count. Moreover, defendant received a concurrent sentence of 75 months on the firearm charge, and would serve 75 months regardless of the method used by the government to get an increased sentence on the drug charge. U.S. v. McDonald, 804 F.3d 497 (1st Cir. 2015).
1st Circuit relies on anonymous minor for pattern of activity increase. (310)(770) Defendant sexually abused two boys who spent the night at his apartment, and pled guilty to sexual exploitation of a minor. The district court applied a five-level enhancement under §4B1.5(b)(1) for a pattern of activity involving prohibited sexual contact. The district court relied on reports of inappropriate sexual contact that allegedly occurred between defendant and another boy, Minor # 1. Defendant argued that the anonymous allegations were unreliable because they were based on two written police reports and testimony by the detective who investigated Minor # 1’s complaint. The identity of Minor # 1 was undisclosed, he could not be cross-examined, and he was known to have mental health issues. The First Circuit found no error. Evidentiary requirements at the sentencing stage are significantly less rigorous than they are at trial. The district court found that it was reasonable to rely on the experience of the detective who prepared the police reports. It also found that certain details reported by Minor # 1 made the reports “almost self-authenticating”: for example, Minor # 1 knew that defendant preferred to be called Ethan rather than Derek, described defendant be-friending him in much the same way that defendant befriended Victims #1 and #2, and accurately recounted details of defendant’s apartment’s apartment. U.S. v. Hinkley, __ F.3d __ (1st Cir. Sept. 30, 2015) No. 14-1821.
5th Circuit reverses relying on testimony from a separate trial for lack of notice. (286)(770) Defendant pled guilty to drug charges. His PSR recommended a § 2D1.1(b)(1) firearm enhancement based on evidence that defendant conspired to commit a marijuana robbery with his neighbor, Alvarado, an alleged drug trafficker. The district judge applied the enhancement over defendant’s objection, relying on his recollection of Alvarado’s criminal trial, in which defendant did not participate. Guideline § 6A1.3(a) requires the parties to “be given an adequate opportunity to present information” to address “any factor important to the sentencing determination [that] is reasonably in dispute.” And Federal Rule of Criminal Procedure 32(i)(1)(C) provides, “[a]t sentencing, the court … must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence.” The Fifth Circuit reversed, agreeing with defendant that the district court’s reliance on testimony from a separate criminal trial to enhance defendant’s sentence, without prior notice and where defendant had no actual knowledge, violated the notice requirements of Rule 32 and § 6A1.3. U.S. v. Garcia, __ F.3d __ (5th Cir. Aug. 14, 2015) No. 14-40520.
9th Circuit finds court did not rely on unproven sexual abuse allegation in sentencing. (310)(770) At defendant’s child pornography sentencing, the district court initially mentioned that it would not impose a sentence at the low end of the Guidelines range because of defendant’s “conduct with own child.” Later in the sentencing hearing, the court stated that it had heard nothing more than an allegation that the defendant had sexually abused his child and declined to rely on that allegation in sentencing defendant. The Ninth Circuit held that the district court had not relied on the allegation in sentencing defendant and therefore that the district court had not relied on unproven information to sentence defendant. U.S. v. Hernandez, __ F.3d __ (9th Cir. Aug. 3, 2015) No. 12-50585. XE “U.S. v. Hernandez, __ F.3d __ (9th Cir. Aug. 3, 2015) No. 12-50585.”
9th Circuit upholds supervised release condition based on statements that defendant was not curable. (310)(580)(770) During defendant’s sentencing on child pornography charges, the district court stated that it “hadn’t heard that this stuff [referring to a desire to see child pornography] is curable.” Based on the nature and quantity of child pornography that defendant possessed, the district court did not believe that defendant could be treated. For those reasons, the district court imposed a lifetime period of supervised release. The Ninth Circuit acknowledged that the district court stated that a desire to possess and distribute child pornography was not curable, but held that the district court never found that defendant would be unable to control his behavior. On that basis, the court of appeals upheld the supervised release condition. U.S. v. Hernandez, __ F.3d __ (9th Cir. Aug. 3, 2015) No. 12-50585. XE “U.S. v. Hernandez, __ F.3d __ (9th Cir. Aug. 3, 2015) No. 12-50585.”
1st Circuit finds no error in relying on information from co-defendant’s sentencing hearing. (742)(770) Defendant argued that the appellate court should remand for resentencing before a different judge because the district court relied on extra-record material that led it to acquire a “preformed bias” against him as a “very dangerous individual.” At a sentencing hearing held two months earlier for Mojica, a co-defendant, the district court twice referred to “the person who was with Mojica as a “very dangerous individual.” Defendant was the “person” to whom the district court was referring. The First Circuit found no basis for deeming the information the district court relied upon to be unreliable. The district court explained at defendant’s sentencing hearing the precise basis for its view that defendant was a “very dangerous individual.” The court cited specifically that defendant was a federal fugitive when he and Mojica were arrested and mentioned defendant’s extensive criminal record. Those facts were corroborated by the unobjected-to information in defendant’s own PSR. Defendant could not have been surprised by the information on which the court based its judgment that he was “very dangerous.” U.S. v. Quinones-Melendez, __ F.3d __ (1st Cir. July 1, 2015) No. 14-1369. XE “U.S. v. Quinones-Melendez, __ F.3d __ (1st Cir. July 1, 2015) No. 14-1369.”
8th Circuit upholds reliance on minutes of testimony from prior offense to find defendant had made violent threats during that offense. (741)(770) Defendant was convicted of robbery. The district court granted the government’s request for an upward variance based in part on threats defendant made during his previous robbery of a Mr. Money store. Defendant argued that the district court improperly relied on minutes of testimony from an Iowa criminal proceeding to find that defendant had previously robbed a Mr. Money store and had made violent threats during that robbery. The Eighth Circuit found no error. First, the identity of the robber was conclusively established by defendant’s conviction for third-degree theft in connection with the robbery. To prove that defendant had made violent threats during that robbery, the government presented the live testimony of a Mr. Money employee who witnessed the robbery. The employee described a single robber who wore a mask and made threats about a gun and a bomb. The district court expressly found this testimony credible. Nothing more was needed to establish that defendant made violent threats while robbing Mr. Money. U.S. v. Clayton, __ F.3d __ (8th Cir. June 1, 2015) No. 14-2887.
1st Circuit says error in considering drug notebook was harmless. (765)(770) Defendant argued that the sentencing court erroneously considered two facts that lacked an adequate basis in the record—that defendant had pointed his gun at an officer, and that a notebook had a record of drug sales. The First Circuit found that the PSR contained a description of defendant pointing his gun at a police officer, and defendant did not file a timely objection, so there was no error as to the gun. With regard to the notebook, however, the sentencing court erred, because the notebook was not part of the record. Nonetheless, the error was harmless. The notebook was “little more than an afterthought in the court’s explication of the sentence. And given the varieties and quantities of drugs contained in the defendant’s backpack, any mention of drug sales in a notebook was obviously cumulative.” Because the district court would have imposed the same sentence had it ignored the notebook, the error was harmless. U.S. v. Fernandez-Garay, __ F.3d __ (1st Cir. May 20, 2015) No. 14-1367.
7th Circuit affirms increase for using firearm in connection with another felony. (284)(770) Defendant pled guilty to being a felon in possession of firearm. The district court applied an increase under §2K2.1(b)(6)(B) for using or possessing a firearm “in connection with another felony offense,” finding that defendant had pointed a loaded firearm at Harris. Although Harris’s accounts of the evening to two police officers differed in some respects, the Seventh Circuit upheld the enhancement. The district court thoroughly reviewed all the evidence, and found Harris’s accounts to be sufficiently reliable. Numerous details were consistent with each other, including her identification of defendant as the perpetrator, her description of the interior of defendant’s residence, her description of the gun, her contention that defendant pointed the weapon at her head in an effort to obtain sex, and her statements that they had been drinking together while at his residence. The court found defendant’s account of the evening not credible, noting that he kept changing stories. U.S. v. Sandidge, __ F.3d __ (7th Cir. Apr. 20, 2015) No. 14-1492.
1st Circuit finds court gave defendant adequate opportunity to present mitigating arguments. (750)(770) Defendant claimed that the district court erred at sentencing by not allowing him to present evidence of his alleged minor role, and by excluding testimony that he intended to offer as proof that he was coerced into conspiring with his co-defendants. The First Circuit found no error. At sentencing, when defendant intended to testify about his role in the drug conspiracy, the district court pointed out that he had not objected to the PSR, which had characterized defendant as a boat captain and had not recommended a minor role reduction. Nevertheless, the court clearly stated that it had considered defendant’s arguments included in his sentencing memorandum regarding his alleged minor role in the offense. Moreover, defense counsel was allowed to argue vigorously about defendant’s alleged minor role. Finally, defendant was allowed to testify regarding the alleged coercion he felt from his co-defendants. After he testified, his counsel was allowed to argue on his behalf, both as to the alleged coercion and his alleged minor role. It was clear that, through defendant’s sentencing memo, his testimony at sentencing, and his counsel’s arguments, defendant effectively communicated the basis for sentencing challenges. U.S. v. Torres-Landrua, __ F.3d __ (1st Cir. Apr. 10, 2015) No. 13-1674.
11th Circuit upholds refusal to redact from PSR threats defendant made to prosecutor and magistrate. (760)(770) Defendant argued that the district court should have redacted information in the PSR indicating that, during a phone call from jail to his wife, he threatened the prosecutor and the magistrate judge who denied defendant pretrial release. Although the district court did not consider the threats when it sentenced defendant, it refused to redact this information, ruling it was important information for the Bureau of Prisons to have. The Eleventh Circuit held that the district court did not abuse its discretion in refusing to redact this information from the PSR. Rule 32(d)(3) excludes only three narrow categories of information from the PSR, and the information at issue here did not fall into any of these categories. Arguably the information counted as information regarding defendant’s history and characteristics, which Fed.R.Crim.P. 32(d)(2)(A) required the PSR to contain. U.S. v. Asante, __ F.3d __ (11th Cir. Apr. 6, 2015) No. 13-15651.
5th Circuit says court properly looked to PSR to see if prior money laundering offense involved more than $10,000. (340)(770) Defendant received an eight-level aggravated felony enhancement under §2L1.2(b)(1)(C) based on a prior money laundering conviction. Money laundering is an aggravated felony if “the amount of the funds exceeded $10,000.” 8 U.S.C. §1101(a)(43)(D). The statute under which defendant was convicted did not contain a $10,000 threshold. Defendant argued for the first time on appeal that the district court improperly relied on his PSR to find that his prior conviction was an aggravated felony, in violation of Shepard v. United States, 544 U.S. 13 (2005). The Fifth Circuit found no error in the court’s use of the PSR. The issue before the district court was not whether the generic crime in 8 U.S.C. §1101(a)(43)(D) was satisfied by the money laundering statute. The issue was whether defendant’s money laundering conviction involved a loss in excess of $10,000. Where there is no generic crime equivalent to a particular §1101(a)(43) subdivision, Nijhawan v. Holder, 557 U.S. 29 (2009), permits a court to use a circumstance-specific approach. Section 1101(a)(43)(D) clearly referred to a specific circumstance, where the funds exceeded $10,000. U.S. v. Mendoza, __ F.3d __ (5th Cir. Apr. 9, 2015) No. 14-40168.
7th Circuit reverses for failure to conduct balancing test for hearsay at revocation hearing. (770)(800) While on supervised release, defendant was arrested and accused of violating the terms of that release. Among other alleged violations, the government accused defendant of committing a battery against a female victim. The victim’s nine-year-old daughter, D.S., allegedly witnessed the battery. Neither the victim or her daughter testified at defendant’s parole revocation hearing. However, the government called the ex-husband of the victim and the father of D.S. The witness was not present during the alleged battery, but relayed what D.S. had told him about the alleged incident. Federal Rule of Criminal Procedure 32.1(b)(2)(C) requires a district court in a revocation hearing explicitly to balance the defendant’s constitutional interest in confrontation and cross-examination against the government’s stated reasons for denying them. The Seventh Circuit held that the district court erred in considering the hearsay without conducing an explicit balancing test under Rule 32.1(b)(2)(C). The error was not harmless. U.S. v. Moslavac, __ F.3d __ (7th Cir. Feb. 18, 2015) No. 14-2866.
6th Circuit reverses for failure to provide opportunity to respond to information used to vary upward. (742) (770) Defendant pled guilty to conspiracy to commit mortgage fraud, resulting in a guideline range of 78-97 months. Both parties sought a sentence within this range. However, the district court relied on confidential, undisclosed information from the PSRs of straw buyers involved in the scheme to vary upward to a 120 months. Defendant argued that his sentence was unreasonable because he was denied notice and an opportunity respond to the information. The Sixth Circuit agreed. While Rule 32 does not require prior notice of the court’s intent to vary based on information not contained in the PSR, the rule clearly requires the sentencing court to use a procedure that affords the defendant a reasonable opportunity to respond. Here, the court’s explicit consideration of the offense’s impact on the co-conspirator straw buyers was novel, and not signaled in the PSR or reasonably foreseeable. The confidential information plainly affected the sentence imposed, and the nondisclosure of the information deprived defendant of a meaningful opportunity to respond. Because defendant showed both surprise and prejudice, the process used to impose the variance was procedurally unreasonable. U.S. v. Coppenger, __ F.3d __ (6th Cir. Jan. 7, 2015) No. 13-3863.
9th Circuit says comment about prior sentencing was not reliance on facts not in record. (340)(770) Defendant was convicted for the third time of illegal reentry after deportation, in violation of 8 U.S.C. §1326. At sentencing, defendant argued for a lower sentence because, he said, he had returned to the U.S. because of he had children in the U.S. The district court said that it would bet that defendant had offered good reasons for his return to the U.S. at his sentencing for the prior two §1326 violations and rejected defendant’s argument for a lower sentence. The Ninth Circuit held that the district court’s statements played no role in its determination of the appropriate sentence and therefore that the district court had not relied on facts that had not been established at sentencing. U.S. v. Burgos-Ortega, __ F.3d __ (9th Cir. Feb. 5, 2015) No. 13-50237.
8th Circuit relies on admission of pattern of dealing to estimate drug quantity. (275) (770) Over a two-year period, police seized various quantities of methamphetamine from defendant totaling 54 grams, and more than $20,000 in cash. During an interview with a DEA agent, defendant admitted obtaining a quarter- to a half-pound of meth twice a week for two years. Co-conspirator Zeugin gave the same estimate to the agent. Based on these admissions, the district court held defendant accountable for more than 15 kilograms of meth. Defendant argued that his statements were unreliable, since they concerned his pattern of dealing drugs rather than on actual transactions. He argued that both he and Zeugin had a motive to exaggerate their activities. The Eighth Circuit found no error. The court’s finding that defendant had been truthful during his proffer interview was not clear error. Nor was the district court’s finding that his statements were corroborated by Zeugin in “pretty remarkable detail.” Moreover, the court exercised its discretion to impose a sentence below the advisory range for the very reason defendant suggested: that drug quantity was based on an estimate that was “greater than necessary to meet the goals” of sentencing. U.S. v. Atterberry, __ F.3d __ (8th Cir. Jan. 12, 2015) No. 14-1316.
7th Circuit allows victim impact statements from an individual or group that is not a named victim.(218) (770) Defendant, an investment advisor, defrauded a number of his clients by covertly diverting assets from their accounts and placing them in unapproved, high-risk investments. He argued for the first time on appeal that it was improper for the sentencing court to consider two victim impact statements from an individual and organization who were not victims of the charged offense. The individual stated that defendant had served as financial advisor to herself and her husband; that they had opened a second restaurant in reliance on defendant’s fraudulent promises; and that defendant’s misdeeds had forced them to declare bankruptcy. The second statement, from a former Rotary Club officer, averred that defendant, while serving as treasurer of the club in 2009, had stolen $20,000 from the club. The Seventh Circuit held that it was not plain error for the court to take into consideration statements from an individual or group that was not a named victim of the charged offense. Uncharged criminal acts have a bearing on whether the offense of conviction was an aberration or part of a larger pattern of criminal behavior, the likelihood of the defendant re-offending, and the need for specific deterrence. U.S. v. Salutric, __ F.3d __ (7th Cir. Jan. 8, 2015) No. 13-3308.
Supreme Court allows judges to find facts allowing imposition of consecutive sentences. (770) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, any fact that increases a defendant’s maximum sentence (other than the fact of a prior conviction) must be found by a jury beyond a reasonable doubt. In Oregon, when a defendant is convicted of multiple offenses in the same proceeding, the trial judge may not impose consecutive sentences for multiple offenses unless the judge finds that the offenses do not arise from the same course of conduct. The Supreme Court, in a 5-4 decision authored by Justice Ginsburg, held that Apprendi does not bar a state from assigning to judges, rather than juries, the findings of fact necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. Justice Scalia wrote the dissent. Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711 (2009).
Supreme Court to decide if Apprendi bars consecutive sentences based on judicial fact-finding. (770) In State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), the Oregon Supreme Court held that the sentencing court—by imposing consecutive sentences based on its own findings and not based on jury findings—violated the defendant’s rights under the Sixth Amendment as construed by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). On March 17 2008, the Supreme Court granted certiorari limited to the question of whether the Sixth Amendment, as construed by Apprendi and Blakely requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant. Oregon v. Ice, __ U.S. __, 128 S. Ct. __ (March 17, 2008) No. 07-901 (granting certiorari).
Supreme Court vacates Eleventh Circuit case and remands for reconsideration in light of Apprendi. (770) The Eleventh Circuit’s opinion in U.S. v. Garcia, 208 F.3d 1258 (11th Cir. 2000), held that the use of relevant conduct did not violate the extradition statute, that the obstruction enhancement was properly applied for destruction of evidence, and that defendant did not accept responsibility despite his guilty plea. On January 8, 2001, the Supreme Court granted certiorari, vacated the judgment and remanded the case for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Garcia v. U.S., 121 S.Ct. 750 (2001).
Supreme Court says any fact that increases the sentence beyond the statutory maximum must be submitted to the jury. (770) In a 5-4 opinion written by Justice Stevens, the Supreme Court held that the Constitution requires that, except for the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The court said it did not matter whether the additional fact was labeled an element of the offense or a mere “sentencing factor.” Applying this rule to the facts of the case, the court reversed the defendant’s New Jersey sentence, which had been increased based on a judge’s finding at sentencing by a preponderance of evidence that the crime was racially motivated. Justice O’Connor dissented, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer. Justice Breyer also filed a separate dissenting opinion joined by the Chief Justice. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).
Supreme Court reverses where facts on which court relied at sentencing failed to establish the more serious charge of attempted killing. (770) Defendant pleaded guilty to assault and firearms counts but not guilty to the more serious charge of attempting to kill a United States marshall. At the plea hearing, the government presented the facts of the crime to provide a factual basis for the pleas, and the defendant agreed with the facts as the government characterized them. Relying on § 1B1.2(a), over the defendant’s objections, the court sentenced defendant as though he had been convicted of attempted killing, the only charge to which he had not confessed guilt. The Supreme Court reversed, ruling that the facts as stated by the prosecutor were not sufficient to establish an attempt to kill under 18 U.S.C. § 1114. Accordingly, defendant’s sentence based upon the guideline for that offense could not stand. Braxton v. U.S., 500 U.S. 344, 111 S.Ct. 1854 (1991).
1st Circuit reverses where court relied on victim impact information first proffered at sentencing. (770) Defendant and Cabezudo pled guilty to robbery charges. At sentencing, after defendant’s allocution, the government added that “the cashier … had … previously worked in another restaurant where a robber killed a cashier, so she was very [a]ffected by this robbery.” Later in the hearing, the court noted that a young girl was “destroyed emotionally” by defendant pointing a gun at her, and then imposed a variant sentence of 60 months on the robbery count and 120 months on the gun count. The First Circuit held that the district court improperly relied on the government’s proffer at sentencing regarding the impact of the robbery on the cashier. The district court’s conclusion that the cashier was “destroyed emotionally” by the robbery was based primarily upon victim impact information proffered by the government for the first time at defendant’s sentencing. The court later also improperly considered information presented at Cabezudo’s sentencing hearing. Cabezudo was sentenced immediately after defendant; however, the sentencing judge sua sponte brought back defendant after Cabezudo’s sentencing because it decided defendant’s 180-month sentence was too high. At Cabezudo’s sentencing, Cabezudo suggested that defendant routinely committed robberies, and that defendant, not Cabezudo, was “the intellectual author of the crime.” Although the court ultimately lowered defendant’s sentence from 180 to 120 months, this did not negate the likelihood that had defendant been given the opportunity to respond to that information, his sentence might have been lower still. U.S. v. Millan-Isaac, 749 F.3d 57 (1st Cir. 2014).
1st Circuit approves reliance on defendant’s post-arrest statements to determine drug quantity. (770) After defendant’s arrest, he admitted that he had sold 20 pounds of marijuana for roughly $29,000. He also admitted that he recently sold 400-450 pounds of marijuana to a customer in New Hampshire, and had 80-100 pounds of marijuana in a stash house. En route to the stash house, defendant rethought his original estimate and said the amount of marijuana at the stash house was only 40 to 50 pounds. The officers retrieved the 42.2 pounds of marijuana from the stash house. Defendant later unsuccessfully moved to suppress these statements. The First Circuit upheld the court’s reliance on defendant’s post-arrest statements to hold him accountable for 462.2 pounds of marijuana. There were enough badges of reliability to render the defendant’s day-of-arrest estimates trustworthy. Defendant cooperated willingly with the officers, and there were no threats of harm to his family. Also, the pricing structure of defendant’s sale to his New Hampshire customer (400-450 pounds of marijuana for $600,000) corresponded to the pricing structure of his surveilled sale (20 pounds of marijuana for roughly $29,000). U.S. v. Maguire, 752 F.3d 1 (1st Cir. 2014).
1st Circuit upholds reliance on uncharged drug sales based on information from drug users. (770) The district court found defendant responsible for 280 grams of cocaine base. He argued that he could not be held responsible for more than the 6.9 grams he sold an undercover agent, and that the court’s drug quantity finding was based on uncorroborated and unreliable testimony from drug users. The First Circuit found no error. The court considered defendant’s PSR and live testimony from six witnesses, each of whom was subject to cross-examination. The PSR detailed transactions amounting to 33.8 grams of cocaine base. In addition, it noted that defendant partnered with another individual known as “New York” to sell crack from at least three crack houses in Portland. At some point, defendant took over the operations himself, during which time he had at least four people working for him. Based on information from cooperating witnesses, the probation department determined defendant was responsible for at least 144 grams of crack from a single crack house over one three-month period. The judge found that 280 grams was a “very conservative” number. Using the minimum sales and drug weights testified to yielded more than 1,000 grams sold from that one crack house over the course of nine months, a number far in excess of 280 grams. U.S. v. Doe, 741 F.3d 217 (1st Cir. 2013).
1st Circuit reverses where court improperly relied on ex parte meeting with probation officer. (770) Defendant argued that the district court erred at sentencing by considering information obtained during an ex parte meeting with the probation department. The record was unclear about the nature of the ex parte gathering and who was present, though the participants apparently included multiple judges and the probation officer. The record also showed that the district court concluded that defendant played the lead role in one of the offenses, and later factored that conclusion into its sentencing decision. The First Circuit ruled that defendant was improperly denied the opportunity to respond to unfavorable information considered by court at sentencing. Defendant was first alerted to the ex parte meeting during the court’s sentencing pronouncement, and thus had insufficient notice, and no opportunity to develop a response to any adverse information communicated in the meeting. Importantly, it appeared that defense counsel also first learned at the sentencing hearing that appellant had been depicted as “the main actor” in one episode. U.S. v. Zavala-Marti, 715 F.3d 44 (1st Cir. 2013).
1st Circuit finds insufficient evidence to tie defendant to drug ledgers seized from co-conspirators. (770) Defendant moved to reduce his 30-year drug sentence based on the retroactively-amended crack cocaine guidelines. The district found refused to reduce his sentence, finding that the quantity of heroin reflected in seized drugs ledgers was reasonably foreseeable to defendant, and was sufficient to support the sentence. The First Circuit held that this was clear error. The ledgers did not mention defendant, his family, or the drug points attributed to them. There was no evidence that defendant participated in the preparation of the ledgers. Nor was there any evidence directly linking defendant, his family, or the housing project where he sold drugs to the co-conspirators from whom the ledgers were seized. Finally, the ledgers covered transactions between 1990 and 1991, when defendant’s brother was the leader of the drug operation. Although defendant apparently took over business at the housing project after his brother’s arrest in 1993, there was no evidence of defendant’s role in the conspiracy when the transactions in the ledgers took place. U.S. v. Candelaria-Silva, 714 F.3d 651 (1st Cir. 2013).
1st Circuit approves drug quantity estimate based on information from confidential informants. (770) Based on tips from three confidential informants (CIs), defendant was arrested as he returned to the US from Canada, hiding 109 oxycodone pills in his rectum. At sentencing, the district court assigned him a drug quantity equivalent to 2,637 80-milligram oxycodone pills based in part on uncharged conduct described by the CIs. The court had previously denied his motion to force the government to disclose the CI’s names. Defendant argued that because the court did not compel the government to disclose the CI’s names, it did not get to see for itself how unreliable they were for relevant-conduct calculation. He argued that the amount of oxycodone attributed to him should have been limited to what was in his possession at his arrest. The First Circuit found no abuse of discretion in attributing the additional drugs to defendant as relevant conduct without disclosure of the CI’s identities. The CIs’ statements regarding defendant’s modus operandi were detailed, mutually corroborative on key points, and compatible with the events surrounding his arrest, and were therefore sufficiently reliable. U.S. v. Mills, 710 F.3d 5 (1st Cir. 2013).
1st Circuit outlines additional matters court may consider on remand. (770) Defendant was convicted of distributing crack. After determining that the evidence did not support the district court’s drug quantity calculation, the First Circuit remanded. The panel ruled that on remand, the district court could consider defendant’s admission to a murder for which he was previously acquitted. But even without considering the decade-old murder, the panel indicated that defendant’s long career of crime and his putative gang affiliations, together with his present drug dealing, could justify more than the 84-105 month range calculated without the rejected drug calculation. The district judge did not directly discuss these issues at the original sentencing, but might find it necessary to do so now. The panel rejected defendant’s argument that his gang membership and other indicia of future danger were irrelevant because they were not directly linked to the five charged drug transactions. U.S. v. Marquez, 699 F.3d 556 (1st Cir. 2012).
1st Circuit upholds use of defendant’s bail interview statements in PSR. (770) Defendant pled guilty to firearms charges, and received an enhanced sentence under §2K2.1(a)(6) based on the district court’s finding that he had a history of drug abuse, and was thus a “prohibited person.” During a bail interview, he had disclosed information about his past and present drug use. Defendant argued for the first time on appeal that the information about his substance abuse was obtained upon a promise of confidentiality, and that the inclusion of the information in his PSR, and its use at sentencing, violated his due process rights and Federal Rule of Criminal Procedure 32. The First Circuit ruled that defendant waived the due process argument, since it was not sufficiently developed. As for the Rule 32 claim, defendant could not show any plain error. Defendant did not present any evidence that he was promised confidentiality at the start of his bail interview, or that he made the statements at issue in reliance on that promise. Although there was a confidentiality notice at the top of the Pretrial Services Report, that report was published after defendant made the statements in question. U.S. v. Caparotta, 676 F.3d 213 (1st Cir. 2012).
1st Circuit relies on co-conspirator testimony to estimate drug quantity. (770) Defendant argued that the district court gave too much weight to inherently unreliable testimony by his co-conspirators in determining drug quantity. In particular, defendant contended that co-conspirator Marquis’s testimony lacked credibility because on two occasions prior to trial, he failed to mention that defendant was one of his customers. The First Circuit found no error. Circumstances vary, and an earlier omission may or may not undermine a later account. Defendant did not identify any specific contradiction or implausibility in Marquis’s testimony. Even though Marquis did not specifically identify defendant as a customer on those prior occasions, he did identify him all along as a member of the drug-trafficking ring. The co-conspirators’ trial testimony supported the court’s drug quantity determination. The court recognized its obligation to make an individualized determination that defendant was personally accountable for 26 kilograms out of the much larger store of marijuana handled by the conspiracy. The drug quantity calculation was reasonable and sufficiently supported by the record. U.S. v. Bernier, 660 F.3d 543 (1st Cir. 2011).
1st Circuit says court could rely on defendant’s admission that conspiracy began “from on or about 1999.” (770) Defendant pled guilty to conspiring to distribute cocaine in a housing project. He challenged his receipt of criminal history points under § 4A1.1(d) for being on probation when he joined the conspiracy. Defendant acknowledged that he was on probation from May 1, 1998 to May 1, 2003, but argued that the court could not confirm that the drug conspiracy began before May 1, 2003. The First Circuit affirmed, since defendant previously admitted that his participation in the conspiracy began “from on or around 1999.” Although defendant argued that this language was so vague that the court could not rely on its accuracy, the panel disagreed. The phrase “from on or about 1999” might be approximate, but “it was not so nebulous as to suggest that the conspiracy could have started at any time at all.” U.S. v. Rivera-Gonzalez, 626 F.3d 639 (1st Cir. 2010).
1st Circuit upholds estimate of drugs attributable to defendant in conspiracy. (770) Defendant pled guilty to drug conspiracy charges. The First Circuit upheld the district court’s decision to hold defendant’s accountable for 9.2 kilograms of crack, rejecting his argument that the court made a conspiracy-wide determination, rather than an individualized determination, of drug quantity. The district court made plausible extrapolations from the available information. The court used the average drug weight per capsule suggested by the scientific evidence and the average drug sales per shift suggested by the cooperating witness to arrive at a sensible starting point. This starting point was favorable to defendant because it left out drugs other than crack routinely marketed by the conspiracy. In estimating the quantity attributable to defendant, the court assumed that he worked only three shifts per week and that these shifts were during the daytime. Both of these assumptions were conservative and likely understated the regularity of his presence. U.S. v. Cintron-Echautegui, 604 F.3d 1 (1st Cir. 2010).
1st Circuit says conservative drug estimate was supported by record. (770) Defendant was convicted of distributing cocaine base and was sentenced to 120 months. On appeal, he argued that the district court relied on the testimony of unreliable witnesses to determine drug quantity. He claimed that the witnesses were unreliable because they were addicted to drugs at the time of the events about which they testified, and because they were motivated to overestimate drug quantity in order to receive sentence reductions. In light of the conservative approach taken by the court in estimating drug quantity, and the support in the record for the court’s determination, the First Circuit found no error. The testimony would likely have justified both a higher quantity of drugs and a lengthier jail sentence. The judge, however, repeatedly and appropriately exercised caution in each of its determinations regarding the drug quantity. The court used only the amounts that each witness testified he or she received from defendant, and used the lowest amounts to which each witness testified. The court also used caution by sentencing below the guideline range. U.S. v. Carl, 593 F.3d 115 (1st Cir. 2010).
1st Circuit approves copy of court record to prove fact of prior conviction, despite ambiguous notation. (770) The district court sentenced defendant as a career offender based in part on a Massachusetts drug conspiracy conviction. He argued that the government did not prove the state conviction, claiming that a handwritten docket sheet from the Municipal Court where the case originated put into question the validity of the conviction. The notation stated, “Previous record vacated. Superior Court Case is dismissed.” Although this notation was not from the court of conviction, defendant argued that it was nevertheless a judicial record of the originating case that undermined the reliability of the conviction. The First Circuit held that the district court did not clearly err in finding that the certified copy of the record from the Superior Court was sufficiently reliable to support the fact of defendant’s conviction. This type of record is presumptively reliable, despite the existence of the handwritten notation, which admittedly added some confusion. U.S. v. Bryant, 571 F.3d 147 (1st Cir. 2009).
1st Circuit finds insufficient evidence of fact of prior conviction. (770) The district court sentenced defendant as a career offender based in part on a New York drug conviction. The government was unable to provide a judicial record of defendant’s New York conviction. To prove the conviction, the government relied on the criminal history record maintained by the National Crime Information Center and the New York State Police, as well as the incarceration record from the New York Department of Corrections. Defendant argued that the Supreme Court’s decision in Shepard v. U.S., 544 U.S. 13 (2005) required a prior conviction be proved by judicial records. The First Circuit disagreed, finding that Shepard was not applicable because it did not address what documents can be used to prove the fact of a prior conviction. However, the government did not meet its burden of proving the prior conviction. The district court could not rely on the government’s recitation of the sources cited in the PSR without any additional inquiry into the reliability of those sources. The district court clearly erred by not requiring the government to show that the PSR’s description of the offense was “based on a sufficiently reliable source to establish the accuracy of that description.” U.S. v. Bryant, 571 F.3d 147 (1st Cir. 2009).
1st Circuit finds plain error in basing sentence on fact not supported by the record. (770) Defendant pled guilty to unlawfully entering the U.S. after previously being deported. The district court sentenced him at the high end of his advisory sentencing range, finding that in light of his prior convictions and his two illegal entries in a two-year period, deterrence was the “salient factor.” However, there was nothing in the record to support the court’s assertion that this was defendant’s second illegal entry into the United States. It appeared that prior to his deportation, defendant was legally in the U.S. The First Circuit held that the court plainly erred in basing defendant’s sentence on a fact not supported by the record. U.S. v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. 2009).
1st Circuit upholds resentencing judge’s reliance on PSR and appellate court opinion to make drug quantity findings. (770) Defendant was originally sentenced to 48 months’ imprisonment. The sentence was based on a series of sentencing errors, and on remand, the case was reassigned to another judge who resentenced defendant to 235 months’ imprisonment. Defendant argued that the resentencing judge was required to go back and reread the transcripts of relevant testimony as well as the PSR in order to make key Guidelines findings, such as drug quantity. The resentencing court did not do that, and defendant argued that it could not rely on the PSR and the appellate court opinion alone. The First Circuit found no hard and fast doctrines about what documents a judge who was not the trial judge must consult, other than the normal documents required by the Federal rules of Criminal Procedure. Here, the information in the PSR and the appellate court opinion provided a sufficient basis for the court’s finding that defendant was responsible for at least 260 kilograms of cocaine. The PSR contained wiretap transcripts of two conversations that showed that defendant played a significant role in a 260-kilogram transaction. U.S. v. Olivero, 552 F.3d 34 (1st Cir. 2009).
1st Circuit relies on government conversation with American Express to find that vendors were victims. (770) Defendant pled guilty to multiple counts of identity theft, counterfeiting and fraud. At the time of his arrest, defendant possessed 315 stolen credit card numbers, “ID kits,” various other PIN and credit card numbers, and equipment valued at over $80,000. To support an enhancement for more than 10 victims, § 2B1.1(a)(1), the government introduced a proffer, based on its conversation with American Express, that the vendor, and not the card-issuing bank, actually suffered the financial losses from defendant’s activities. The government provided a list of 14 vendors its agents had contacted and who reported losses due to defendant’s illegal purchases. The First Circuit held that this evidence supported the enhancement for more than 10 victims. The district court properly relied on both the testimony regarding the conversation with American Express and the Sentencing Guidelines explanatory notes, which defines “victims” under § 2B1.1(b)(2)(A) as including “individuals, corporations, companies….” This definition is broader than financial institutions and fairly encompassed the vendors. U.S. v. Sharapka, 526 F.3d 58 (1st Cir. 2008).
1st Circuit rejects post-judgment memo filed by district court. (770) At sentencing, the district court cited three grounds for its below-guideline sentence, citing defendant’s close family relationship, the support of his family, his own commitment to rehabilitation, and to bring defendant’s sentence “in line” with other defendants in the case. While the government’s appeal was pending, and almost a year after the court pronounced sentence and entered judgment, the district court issued a supplemental memorandum that “intended to distill … more concisely” the reasoning that underlay the sentence. The First Circuit held that a federal appellate court has the discretion, in an appropriate case, to accept a post-judgment memo (including but not limited to a post-judgment sentencing memorandum) even if it is not filed by the district court until after the docketing of a notice of appeal. Since the drawbacks of such belated filings are real, the discretion to accept and rely upon them should be exercised “sparingly.” “District courts should be encouraged to explain their sentences at the time of sentencing and to eschew belated post-judgment amplification.” The memo filed here essentially restated (although more expansively) the three elements on which the district court relied in imposing its sentence. Since it did not add to the appellate court’s assessment of the reasonableness of the sentence, the panel did not consider it. U.S. v. Martin, 518 F.3d 989 (1st Cir. 2008).
1st Circuit finds defendant waived objection to career offender status by failing to object despite express invitation. (770) Defendant argued that the two prior convictions used to sentence him as a career offender were inadequately substantiated, and that the district court erred when it relied on the PSR for proof of these prior convictions. However, at his disposition hearing, defendant never lodged an objection to the inclusion of either of these prior convictions in the PSR, and did not object to the court’s designation of him as a career offender. This was particularly striking because, at multiple times during the Rule 11 hearing, the district court expressly invited defendant to take the opportunity provided by the disposition hearing to challenge any mischaracterization of his prior criminal record or his status as a career offender. The First Circuit held that defendant, having been expressly invited to object on the ground that his predicate convictions did not qualify him for career offender status, and having eschewed that opportunity, waived that objection. Not even plain-error review is available to a party who has waived a claim of error. U.S. v. Jimenez, __ F.3d __ (1st Cir. Dec. 27, 2007) No. 06-1553.
1st Circuit finds error in failing to completely disclose contents of juvenile record was harmless. (770) The guidelines permit a district court to include defendant’s juvenile record in its criminal history calculation. § 4A1.2(d)(2). Under the Puerto Rico Rules of Procedure for Minors’ Matters, however, juvenile records must be sealed, and access to them is strictly limited. Defendant argued that the district court improperly relied on his confidential juvenile record in sentencing him without sufficiently disclosing the content of that record to him, in violation of Fed. R. Crim. P. 32. The First Circuit held that any error was harmless. Defendant still had a sufficient basis for disputing the violations. Defendant’s submissions indicated that he had substantial familiarity with his own criminal history, and knew enough about it to argue that his history should not be included as a separate offense in his sentencing. In light of this conceded knowledge, there was no reason to believe that the court’s failure to offer a full explanation of defendant’s juvenile record impaired his ability to contest the court’s reliance on that record in its sentencing. U.S. v. Guadalupe-Rivera, 501 F.3d 17 (1st Cir. 2007).
1st Circuit holds court’s reference to testimony from co-defendants’ trial was not improper. (770) Defendant argued that the district court erred when it failed to notify him that it would rely on testimony from his co-defendants’ trial in deciding whether to sentence him within the guideline range. He claimed he had no knowledge of the prior trial testimony and was blind-sided by the contention that he was a significant supplier of drugs to the conspiracy. The First Circuit found no error. The court mentioned the testimony it had heard at trial to emphasize that it was familiar with both the length of time the conspiracy had operated and the quantity of drugs that had been involved. By doing so, the judge was responding to defense counsel’s argument that her client was a “peripheral supplier” who had supplied only small amounts of cocaine. This information was not new to defendant and his counsel. The length of the conspiracy and quantity of drugs involved were set forth in the indictment, plea agreement and PSR. The government consistently maintained, throughout the proceedings below, that defendant was a “main supplier to the organization.” U.S. v. Rivera-Rodriguez, 489 F.3d 48 (1st Cir. 2007).
1st Circuit upholds above-guideline sentence for robbery of doughnut shop. (770) Defendant was convicted under the Hobbs Act of robbing a doughnut shop. The district court sentenced him to 100 months, 13 months above the maximum guideline sentence. Defendant argued that this was unreasonable because the robbery of a mere $782, on one occasion, from one store, involving no unusual or aggravating circumstances, falls outside the “heartland” of the Hobbs Act robbery cases contemplated by the Sentencing Commission. He cited the U.S. Attorneys’ Manual, which suggests that only Hobbs Act robberies involving organized crime, gang activity, or wide-ranging schemes, should be prosecuted. The First Circuit held that the 100-month sentence was not unreasonable. Neither Congress nor the Sentencing Commission has suggested that only robberies involving organized crime, gang activity, or wide-ranging scheme represent the bulk of federal prosecution, and that robberies not of this type should be considered outside the guidelines “heartland.” Defendant’s reliance on the U.S. Attorneys’ Manual was misplaced, since the Manual was meant to counsel federal prosecutors as to how to allocate limited prosecutorial resources. Other factors cited by the court supported the above-guideline sentence, including testimony by an experienced corrections officer that defendant was the “worst inmate” he had ever seen and testing showing that defendant was resistant to psychological treatment. U.S. v. Ossai, 485 F.3d 25 (1st Cir. 2007).
1st Circuit holds that sentencing enhancement did not require government to produce expert opinion that pornographic image was of real child. (770) Defendant pled guilty to possession of child pornography. The district court found that defendant possessed at least ten images of child pornography on the hard drive of his computer, resulting in a two-level enhancement under § 2G2.4(b)(2). Defendant argued that under Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the government was required, in the absence of direct evidence, to produce expert opinion testimony that a particular pornographic image was of a real, non-virtual child, in order to meet its burden of proof by a preponderance of the evidence. The First Circuit disagreed. Free Speech Coalition does not impose any requirement that the government produce such expert opinion testimony or be deemed to have failed to establish proof by a preponderance of evidence. Free Speech Coalition also does not overrule U.S. v. Norton, 818 F.2d 1015 (1st Cir. 1987), holding that such expert opinion testimony – that a photo is of a real child – is not required to meet the government’s burden of proving guilt beyond a reasonable doubt. U.S. v. Rodriguez-Pacheco, 475 F.3d 434 (1st Cir. 2007).
1st Circuit says any reliance on police report was harmless because charging document supported crime of violence finding. (770) Defendant argued that the sentencing court unconstitutionally relied on the language of a police report cited in his PSR to conclude that a prior assault and battery conviction was a crime of violence. It was clear that after Shepard v. U.S., 125 S.Ct. 1254 (2005) that such reliance would be improper. However, the First Circuit found that any reliance on the police report was unnecessary to the district court’s conclusion that the crime was a violent predicate, and thus, any error was harmless. Aside from the police report, the criminal complaint also stated that defendant “did assault and beat” the victim. The charging document’s characterization was sufficient to find the offense was a crime of violence. U.S. v. Estevez, 419 F.3d 77 (1st Cir. 2005).
1st Circuit relies on hearsay to find defendant pointed gun at girlfriend during argument. (770) Defendant was convicted of being a felon in possession of a firearm. A police officer testified that a 14-year old witness pulled him over to report to him that defendant had pulled out the gun and pointed it at the girlfriend during an argument near a public bus stop. The officer searched defendant and found a gun in his possession. The First Circuit upheld a § 2K2.1 (b)(5) increase for using the gun in connection with another felony, i.e. an assault against his girlfriend. The 14-year-old’s statement had the authenticity and reliability of an excited utterance. The fact that the officer was able to quickly locate defendant near the bus stop, identify him by the orange clothing the boy described, and recover a gun from defendant, corroborated the statement. In addition, the girlfriend confirmed that she and defendant had been fighting just before the incident, and admitted she had seen defendant with a gun in the past. Although she denied defendant pointed a gun at her, the district court noted that in addition to being a biased witness, the girlfriend likely would not have seen a gun pointed at the back of her own head. U.S. v. Luciano, 414 F.3d 174 (1st Cir. 2005).
1st Circuit says use of hearsay at sentencing does not violate Booker or Crawford. (770). The district court imposed a four-level enhancement based on a police officer’s testimony that a 14-year old witness reported to him that defendant had pulled out the gun and pointed it at the girlfriend during an argument near a public bus stop. Defendant argued, pursuant to Crawford v. Washington, 541 U.S. 1354 (2004) that the use of hearsay at sentencing violated his rights under the Confrontation Clause. The First Circuit found nothing in Crawford to alter its previous conclusion that the Sixth Amendment right to confront witnesses does not apply at sentencing. See, e.g. U.S. v. Rodriguez, 336 F.3d 67 (1st Cir. 2003). By its own terms, Crawford does not address whether the Sixth Amendment right to confront witnesses applies at sentencing – it concerns the use of hearsay at trial. Blakely and Booker did not alter this analysis. U.S. v. Luciano, 414 F.3d 174 (1st Cir. 2005).
1st Circuit holds that proffers from co-conspirators supported drug quantity attribution. (770) By means of his guilty plea, defendant admitted to specific transactions involving 44.53 grams of heroin, 71.9 grams of cocaine base, and 27.8 grams of powder cocaine, representing the sum total of drugs involved in six transactions. He challenged the district court’s finding that he was responsible for additional drug quantities, including 200 grams of heroin, 800 grams of crack, and 800 trams of powder cocaine. The First Circuit held that the district court properly relied on proffers from co-conspirators to support the additional drug quantities. One co-conspirator placed defendant at the head of the drug distribution network, and stated that defendant took delivery of 200-250 grams of powder cocaine and 50-100 grams of heroin weekly. He also confirmed that the ring converted about half of the powdered cocaine into crack. Two other co-conspirators had worked for defendant, and they described their duties and alluded to the significant amounts of drugs involved. The proffers of the three conspirators were consistent and mutually reinforcing, and were reinforced by contraband seized during the search of the stash house. U.S. v. Ventura, 353 F.3d 84 (1st Cir. 2003).
1st Circuit holds that court properly relied on PSR where defendant made no objections. (770) Defendant argued on appeal that the district court erred in finding that defendant was responsible for more than 150 kilograms of cocaine. However, the PSR also found the drug quantity attributable to defendant to be in excess of 150 kilograms, and defendant did not object. Because drug quantity need only be determined by a preponderance of the evidence for sentencing purposes, a district court may generally rely on the PSR in making this determination. If a defendant’s objections to the PSR are unsupported, or the defendant makes no objections, the court is entitled to rely on the PSR. The First Circuit held that defendant’s sentence was not clearly erroneous. U.S. v. Morales-Madera, 352 F.3d 1 (1st Cir. 2003).
1st Circuit upholds consideration of sale of guns to drug kingpins in sentencing within guideline range of less than 24 months. (770) Defendant, a police officer, used his position to improperly seize weapons and resell them. Despite defendant’s request for a sentence at the bottom of his 70-87 month range, the district court sentenced him to 80 months, citing a number of factors, including his role as a police officer, the fact that the informant told him the guns were intended for use by drug kingpins, the fact that the guns sold had an obliterated serial number, and defendant’s propensity for violent behavior. Defendant argued that the court erred in basing its sentencing determination on a material misstatement of fact – that the weapons were intended for use by drug kingpins. The First Circuit found no error since a district court is not required to cite any reason for sentencing a defendant within a properly constructed guideline range that spans no more than 24 months. Defendant’s guideline range spanned only 17 months. Moreover, the finding was not clearly erroneous, but based on reasonable inferences from the record. In addition, the finding was probably not material, given the court’s other findings in support of its sentence. U.S. v. Mansur-Ramos, 348 F.3d 29 (1st Cir. 2003).
1st Circuit says issuance of revised PSR after sentencing did not invalidate sentencing. (770) Defendants made several objections to their initial PSRs. At sentencing, they objected to a murder cross-reference and certain other findings. The court sentenced them without applying the murder cross-reference. A month after the court had imposed its sentence, the probation office issued updated PSRs that no longer contained the murder cross-reference. Defendants claimed that, as a result of the issuance of this “post-Sentence Report,” they were entitled to be resentenced. The First Circuit found no error. The sentencing court complied with Fed. R. Crim. P. 32(b)(1), which permits a court to impose a sentence despite the lack of a PSR if “(A) the court finds that the information in the record enables it to exercise its sentencing authority meaningfully under 18 U.S.C. § 3553; and (B) the court explains this finding on the record.” At sentencing, the court indicated that it was setting the offense levels based on its recollections of the evidence presented at trial, and on the factual findings contained in the original PSRs. The court was aware of defendants’ objections to those factual findings, and the court overruled them. The court ignored the PSR’s cross-referencing of murder. The fact that a subsequent PSR, completed post-sentencing, reflected the court’s decision, was simply irrelevant. U.S. v. Garcia-Torres, 341 F.3d 61 (1st Cir. 2003).
1st Circuit upholds court’s drug quantity finding. (770) Defendant was convicted by a jury of conspiracy to distribute more than 50 grams of crack cocaine. The sentencing judge found by a preponderance of the evidence that 150 grams of crack was attributable to defendant. Defendant argued that his sentence should be vacated because the court erred as a matter of law by failing to “exercise independent judgment” in its consideration of evidence by summarily disregarding both the memo submitted by defendant on drug quantity and Hogan’s testimony at sentencing regarding the extent of defendant’s involvement in the conspiracy. The First Circuit disagreed. The district court carefully read defendant’s memo and considered the evidence before making an independent determination that defendant’s arguments were without merit. The court not only allowed defendant’s testimony was also questioned Hogan on the inconsistencies between the testimony offered and the confession that he made during his own sentencing. Based on these inconsistencies, the court found Hogan to be an unreliable witness and did not credit his testimony. These are precisely the determinations of fact that the sentencing court has discretion to make. U.S. v. Newton, 327 F.3d 17 (1st Cir. 2003).
1st Circuit upholds use of suppressed evidence to determine restitution. (770) Defendant argued that the district court erred in using suppressed evidence to calculate the restitution for his credit card fraud offense. The First Circuit joined ten other circuits in holding that the exclusionary rule does not bar the use at sentencing of evidence seized in violation of a defendant’s 4th Amendment rights. See, e.g. U.S. v. Ryan, 236 F.3d 1268 (10th Cir. 2001); U.S. v. Brimah, 214 F.3d 854 (7th Cir. 2000). Nonetheless, under the VWPA and Hughey v. U.S., 495 U.S. 411 (1990), the suppressed evidence can be included in the restitution award only if (1) the offense involved a scheme, conspiracy, or pattern of criminal activity; or (2) the evidence represented conduct that was the basis of the offense of conviction. The charged offense did not involve a scheme or pattern of criminal activity. However, defendant failed to challenge below whether the suppressed credit cards represented conduct that was the basis of the offense of conviction. The language of the indictment was broad enough to encompass defendant’s criminal conduct of using both the suppressed and unsuppressed credit cards in the 10-month period. Therefore, the district court’s use of the suppressed evidence in the restitution calculation was not plain error. U.S. v. Acosta, 303 F.3d 78 (1st Cir. 2002).
1st Circuit directs lower court to examine certified English translation of Spanish conversations to determine drug quantity. (770) The government presented at trial tapes of numerous telephone conversations in Spanish among defendants. After the defense objected that the English translation of the conversations contained many inaccuracies, and determining that all of the jurors spoke fluent Spanish, the court ruled that only the Spanish transcript would be made available to the jury, in violation of the Jones Act, 48 U.S.C. § 864. At sentencing, the court attributed 20 kilograms of cocaine to defendant. Defendant argued that this sentence was unsupported by the Spanish tapes. However, the English language record contained at least 11 conversations in which defendant directly coordinated the sale or purchase of more than 20 kilograms of cocaine. Since the district court calculated the drug quantity by relying exclusively on the Spanish language tapes, there was no way for the First Circuit to determine whether the lower court’s recollection of the Spanish tapes was flawed. More importantly, it could not review whether a drug agent’s testimony regarding drug quantities accurately reflected the content of the Spanish tapes. On remand, the district court should review a certified English translation of the Spanish tapes to ensure that the tapes corroborated the testimony regarding drug quantity. U.S. v. Rivera-Rosario, 300 F.3d 1 (1st Cir. 2002).
1st Circuit upholds reliance on plea agreement stipulation to support cross-reference. (770) Guideline § 2A6.2 (Stalking or Domestic Violence) provides that if the offense involved conduct covered by another guideline, the court should apply that guideline if it would result in a higher offense level. The court relied on this cross-reference to apply the first-degree murder guideline, § 2A1.1, which carries a base offense level of 43. In her plea agreement, defendant stipulated both to this cross-reference and to the resulting offense level. The First Circuit upheld the district court’s reliance on the stipulation to apply the cross-reference to defendant. Although stipulations about legal issues are problematic, parties are usually bound by factual stipulations accepted by the court. Although this case involved stipulations to both legal and factual matters, defendant’s factual admissions alone were sufficient to justify the court’s use of the cross-reference. Defendant admitted crossing state lines to commit illegal acts against her boyfriend’s estranged wife, admitted seeing and hearing her boyfriend’s vicious murder of the wife’s brother, yet nonetheless lured another victim, the wife’s current boyfriend, into a place of imminent danger. The second murder was “a reasonably foreseeable act” in furtherance of the offenses of conviction. The district court had a plausible factual basis for cross-referencing the first-degree murder guideline. U.S. v. Teeter, 257 F.3d 14 (1st Cir. 2001).
1st Circuit holds that court erred in departing based on ex parte communication with expert. (770) Defendant requested a downward departure based on extraordinary rehabilitation, claiming that he had turned his life around about a year before his arrest. The court-ordered psychologist submitted a report which supported this view. However, the government produced disciplinary records from defendant’s correctional institute showing that during the previous two-year period, defendant had committed at least 18 disciplinary infractions. To reconcile defendant’s disciplinary record with a finding of rehabilitation, the court had a one hour conversation with the psychologist. At sentencing, the court relied on this ex parte conversation to depart downward based on defendant’s rehabilitation. The First Circuit held that the district court erred in having, and then basing its departure on, its ex parte communication with a court-appointed expert. The district court’s consideration of the ex parte conversation tainted the factual basis for the departure and left the appellate court unable to determine whether defendant’s efforts to overcome his addiction qualified him for a departure. U.S. v. Craven, 239 F.3d 91 (1st Cir. 2001).
1st Circuit upholds finding that defendant sexually assaulted minors decades earlier. (770) Defendant was convicted of possessing child pornography. The district court departed upward because defendant had sexually assaulted two of his sisters-in-law decades earlier when they were minors. Defendant argued that the district court clearly erred in finding that he had sexually assaulted his two sisters-in-law, citing the two-decade delay in the victims’ revelations and the timing of those revelations (shortly after the commencement of his divorce proceedings), and attacking the reliability of his admissions to the police. The First Circuit held that the sentencing court properly chose to credit the detailed accounts contained in the victim impact statements and to take defendant’s initial admission of inappropriate contact at face value. Moreover, the assaults were corroborated by defendant’s taking and retaining of nude photographs of the girls. The district court also credited the suggestion that the victims failed to speak out earlier due to fear, shame, and mortification. There was no principled way for an appellate court to second-guess these findings. U.S. v. Amirault, 224 F.3d 9 (1st Cir. 2000).
1st Circuit says lay evidence can establish that cocaine base is crack. (770) Defendant argued that the cocaine base involved in his case was not crack cocaine, citing the low purity of the cocaine, and complaining that the government produced no evidence regarding the melting point or water solubility of the seized drugs. The First Circuit noted that it had previously rejected defendant’s allegations regarding water solubility and melting point. See, e.g., U.S. v. Ferraras, 192 F.3d 5 (1st Cir. 1999); U.S. v. Martinez, 144 F.3d 189 (1st Cir. 1998). Once the government has laid a proper foundation by introducing a chemical analysis proving that a substance is cocaine base, no further scientific evidence is needed. The government can bridge the evidentiary gap between cocaine base and crack cocaine by presenting lay opinion evidence from a reliable witness who possesses specialized knowledge. In the present case, the government produced competent scientific evidence from two chemists to prove that the 221 grams seized at defendants’ arrest was cocaine base. Once the government introduced this testimony, no additional scientific evidence was needed. Competent lay testimony, such as that of a police officer remarking on the substance’s distinctive appearance and texture and identifying it as crack, completed the necessary link. U.S. v. Charles, 213 F.3d 10 (1st Cir. 2000).
1st Circuit upholds maximum penalty for simple assault of flight attendant. (770) Defendant, a commercial airline passenger, provoked an altercation with the flight crew that resulted in the plane being forced to make an unscheduled landing so that defendant could be removed from the flight. Defendant was convicted of simple assault, a Class B misdemeanor not subject to the Sentencing Guidelines. The jury either acquitted him or failed to reach a verdict on other charges. An appellate court will uphold a sentence for a non-guidelines offense unless the sentence was “imposed in violation of law” or was “plainly unreasonable.” 18 U.S.C. §§ 3742(e)(1) & (4). The First Circuit held that the district court properly imposed a six-month sentence, the maximum allowable term of imprisonment. The district court’s consideration of hung-jury conduct was proper as a matter of law. See 18 U.S.C. § 3661 (providing no limit on the sentencing court’s ability to consider the defendant’s background, character, and conduct). The district court concluded that defendant’s unwillingness to accept responsibility for assaulting the flight attendant and the risk that his conduct posed on an airplane in mid-flight warranted the maximum allowable prison term. These considerations properly reflected the interests of punishment, deterrence, and public safety. U.S. v. Bayes, 210 F.3d 64 (1st Cir. 2000).
1st Circuit upholds reliance on former drug supplier’s testimony. (770) When the government learned that Chago and Gonzo, defendant’s current drug suppliers, had committed perjury at trial, it decided to prove drug quantity at sentencing by calling as a witness Morel, defendant’s former supplier and the initial liaison between defendant and Chago. Morel testified to various drug transactions between Chago and defendant. The First Circuit upheld the district court’s reliance on the former drug supplier’s testimony. The district court was entitled to find that Morel had first-hand knowledge of defendant’s relevant conduct; that he had supplied defendant with cocaine in the past and had facilitated an arrangement whereby his associate (Chago) became defendant’s primary source of supply; and that this arrangement lasted until Gonzo succeeded Chago as defendant’s supplier. Given this continuous chain, it was not clear error for the district court to credit Morel’s testimony. Although Morel’s testimony regarding dates and times was fuzzy, the purport of the testimony was plain, “and the carping about details amounts to nothing more than an attack on Morel’s credibility.” U.S. v. Huddleston, 194 F.3d 214 (1st Cir. 1999).
1st Circuit holds lab report and police detective’s testimony proved substance was crack. (770) Police found drugs at defendant’s house. The government introduced a lab report stating that the seized drugs had the chemical composition of cocaine base. An experienced police narcotics investigator testified that the hard, rock-like substance was crack. The First Circuit held that lab report and the police detective’s testimony adequately supported the use of the crack penalties. The government laid a proper foundation for the detective’s testimony by introducing a chemical analysis proving that, chemically, the contraband was cocaine base. However, chemical analysis cannot distinguish crack from any other form of cocaine base because crack and all other forms of cocaine base are identical at the molecular level. Thus, no further scientific testimony would have been of any conceivable assistance. The police detective’s testimony was helpful because crack can only be differentiated from other cocaine bases by appearance and texture. The detective was a veteran investigator who worked undercover for several years as both a buyer and a seller and had an intimate familiarity with the crack trade. U.S. v. Robinson, 144 F.3d 104 (1st Cir. 1998).
1st Circuit relies on police affidavit to support school zone enhancement. (770) Defendant was convicted of participating in a conspiracy to possess and distribute heroin. The First Circuit upheld an enhancement for transacting a drug sale in a school zone, based on an affidavit signed by a special agent stating that drug transactions at a particular park took place within 1000 feet of a junior high school. At sentencing, a court may consider evidence that would be inadmissible at trial if the sentencing court finds sufficient indicia of reliability to support its probable accuracy. The affidavit of a law enforcement officer familiar with the location of the drug transaction and the surrounding area is sufficiently reliable that a court can accept it as evidence for sentencing purposes. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).
1st Circuit holds defendant accountable for quantity he admitted in plea agreement and at plea hearing. (770) Defendant employed a man who negotiated to supply undercover agents with ten kilograms of cocaine. The employee then transmitted a message to defendant’s beeper stating that “ten jet skis” should be prepared. The employee later emerged from defendant’s business carrying a box containing one kilogram of cocaine. Shortly thereafter, defendant was arrested in possession of the beeper to which the employee had sent the “ten jet skis” message. Defendant challenged the finding that he was accountable for ten kilograms of cocaine. The First Circuit found no clear error, since defendant admitted both in the plea agreement and during the Rule 11 hearing that he was responsible for the ten kilograms of cocaine as charged in the indictment. The district court was entitled to credit these sworn admissions. Defendant’s claim that he did not intend to produce or was not capable of producing ten kilograms failed because there was no attempt to demonstrate that he was not reasonably capable of delivering the amount agreed upon with the undercover agents. U.S. v. Marrero-Rivera, 124 F.3d 342 (1st Cir. 1997).
1st Circuit relies on affidavits about seriousness of defendant’s prior criminal conduct. (770) The district court departed upward for criminal history. Defendant argued that the three affidavits relied on by the district court for its departure were not reliable. The First Circuit affirmed the upward departure. First, the district court did not place principal reliance on the affidavits in determining the seriousness of defendant’s prior criminal conduct. Moreover, although defendant claimed the affiants were untrustworthy, he chose not to cross examine one of the affiants at trial. In addition, he had cross-examined the other two affiants at the earlier trial on drug charges before the same judge. Finally, the district court was presented with unchallenged police reports, describing various burglaries and corroborating other information in the affidavits. U.S. v. McMinn, 103 F.3d 216 (1st Cir. 1997).
1st Circuit relies on sworn affidavit, rather than underlying evidence, to calculate loss. (770) Defendant fraudulently obtained credit cards, used them, and then reported them as stolen. In determining that the loss was between $100,000 and $200,000, the district court relied on a Secret Service agent’s affidavit describing his investigation and the evidence recovered from defendant’s home, defendant’s signed statement upon his arrest admitting that the loss was about $176,000, and the bankruptcy petition filed by defendant that discharged many of his debts. Defendant argued that the loss should have been based on the underlying evidence—the credit cards, receipts, sales slips, and other documents collected during the investigation. The First Circuit held that the district court properly relied on the sworn affidavit of the investigating officer. Defendant provided no evidence that legitimate payments he made were improperly taken into account in determining the loss amount. U.S. v. Phaneuf, 91 F.3d 255 (1st Cir. 1996).
1st Circuit says exclusionary rule does not bar considering defendant’s voluntary statements in PSR. (770) Defendant was arrested in a drug transaction. Police searched his apartment and found additional drugs. The district court granted defendant’s motion to suppress all of the cocaine found in his apartment, finding the government had failed to prove a valid consent to the search. Defendant argued that the exclusionary rule barred the consideration of the drugs found in his apartment at sentencing. The First Circuit found it unnecessary to decide whether the exclusionary rule applied at sentencing, since even if it did, it would not bar the consideration of defendant’s voluntary statements set forth in the PSR. In setting forth in his version of the facts for inclusion in the PSR, defendant voluntarily admitted that he owned the cocaine found in his apartment on the date of his arrest. The statement was incorporated verbatim into the PSR. Defendant did not object or attempt to reserve any Fourth Amendment argument with respect to the PSR’s recounting of these admissions. U.S. v. Raposa, 84 F.3d 502 (1st Cir. 1996).
1st Circuit reverses where language barrier undermined credibility of co-conspirator’s affidavit. (770) Defendant’s co‑conspirators agreed to sell five kilograms of cocaine to an undercover agent, in two transactions. Defendant was arrested carrying about two kilograms of cocaine to the conspirators. The other three kilograms were never found. The First Circuit held that the court erred in relying on a co‑conspirator’s affidavit to hold defendant accountable for the full five kilograms. The information in the affidavit was not corroborated by any of the circumstantial evidence. The government conceded that defendant and the co‑conspirator did not share a common language, yet the affidavit purported to cover defendant’s comments on drug quantity, his plan to deliver the cocaine and receive payment, his prior experience in delivery, his lack of fear, his lack of need of a gun, his prior residence in New York and his prior employment. Faced with this challenge to the co‑conspirator’s credibility, the district court erred in failing to hold an evidentiary hearing. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).
1st Circuit refuses to compel co‑conspirators to appear as witnesses at defendant’s sentencing hearing. (770) Defendant challenged the court’s refusal to compel co‑conspirators to appear as witnesses at his sentencing hearing. The First Circuit found no error, since defendant had a more than adequate opportunity to present information on any factor in dispute. At trial, the judge observed the government’s case in chief, including recordings and videotapes of defendant discussing the drug transaction with a co‑conspirator and an undercover agent. Defendant had an opportunity to cross examine this co‑conspirator and the agent, and introduced evidence of the co‑conspirator’s possible bias. Further testimony at sentencing from the other co‑conspirators would have served no purpose. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).
1st Circuit directs that victim impact statement be given to defendant before resentencing. (770) Defendant was convicted of seven counts of fraud; the first five counts were reversed on appeal. Defendant challenged the loss attributable to the two remaining counts. Although defendant conceded a loss of $308,481, the probation officer recommended a loss of $431,176 based on a victim impact statement. The victim impact statement was not attached to the PSR, and defendant claimed he never received a copy. In remanding for resentencing on the two remaining counts, the First Circuit directed the government to provide the victim impact statement to defense counsel before resentencing if it wanted to use the larger of the two figures. The district court’s basis for using the larger figure could not be discerned from the record. U.S. v. Lopez, 71 F.3d 954 (1st Cir. 1995).
1st Circuit says court not required to hold evidentiary hearing before resentencing. (770) The district court sentenced defendant based on multiple extortions. The First Circuit remanded because it was unclear whether the judge had independently determined that there were multiple extortions. On remand, the district court invited both sides to provide written submissions to support their positions. Defendant submitted an affidavit from one witness. The district court denied defendant’s request for an evidentiary hearing, stating that it had independently determined that there were multiple bribes and nothing in the submitted affidavit altered that decision. The First Circuit held that the district court was not required to hold an evidentiary hearing prior to resentencing. Defendant did not have the right to present live testimony at sentencing. District courts may consider affidavits, proffers and far less formal sources of information at sentencing. The court satisfied the appellate court’s mandate when it found that it had independently determined that there were multiple extortions. U.S. v. Garafano, 61 F.3d 113 (1st Cir. 1995).
1st Circuit upholds reliance on sworn affidavits of cooperating co-conspirators. (770) Defendant challenged the court’s decision to credit the affidavits of cooperating co-conspirators over his own sworn testimony. The First Circuit affirmed. Although largely uncorroborated affidavits of cooperating co-conspirators should be viewed with some skepticism, that is not a basis for adopting a per se rule of unreliability. It is better to leave reliability decisions and credibility determinations to the informed discretion of the district court, while ensuring that defendants have a sufficient opportunity to impeach tenuous evidence in appropriate ways. The district court here provided defendant with a fair process. Defendant had a full opportunity to tell the court his side of the story. During his cross-examination of a state trooper, defendant was able to elicit information about the self-serving nature of the co-conspirator’s cooperation, and emphasized the absence of hard evidence corroborating their statements. Although defendant argued he should have been entitled to cross-examine the co-conspirators, this claim was waived because he never attempted to call the co-conspirators as witnesses. U.S. v. Shrader, 56 F.3d 288 (1st Cir. 1995).
1st Circuit upholds reliance on testimony of two-time perjurer. (770) The district court based its drug quantity determination on the testimony of a co-conspirator at defendant’s sentencing hearing. Defendant argued that the witness was unreliable because there were a number of inconsistencies in his stories, and the witness was an admitted perjurer, a drug user, and a turncoat who received a substantially reduced sentence for implicating others. The First Circuit upheld the district court’s reliance on the witness’s testimony. Although the witness had twice perjured himself in earlier proceedings before the district court, these lies occurred before the witness had agreed to cooperate with the government. The district court was free to conclude that, “once the game was up,” the witness had chosen to cooperate fully and truthfully with the government. U.S. v. Webster, 54 F.3d 1 (1st Cir. 1995).
1st Circuit relies on co-defendant hearsay to determine drug quantity. (770) Defendant challenged the district court’s reliance on hearsay to determine drug quantity. The Second Circuit found that the hearsay sufficiently reliable. Defendant and his co-defendants had invaded a house in a search for drugs Since no drugs were found in the house, the quantity attributed to defendant depended on what he and his confederates expected to find. The views of defendant’s co-defendants, as reported in the PSR and by an investigating officer, were hearsay. However, the co-defendants were consistent in fixing 320 pounds as the least they expected to find. The district court was not obliged to credit defendant’s statement that he did not expect to find any drugs. U.S. v. Connolly, 51 F.3d 1 (1st Cir. 1995).
1st Circuit holds that pre-trial destruction of marijuana plants did not violate due process. (770) Defendant argued that the government’s pre-trial destruction of marijuana plants seized from his trailer violated due process, since it precluded him from effectively challenging both the plant count and police testimony that all seized plants had developed root systems. The 1st Circuit held that the pre-trial destruction of the marijuana did not violate due process since police acted in good faith. A state’s failure to preserve potentially exculpatory evidence does not violate due process unless a defendant can show bad faith by the police. There was no bad faith, since at the time the plants were destroyed, this was only a state court matter, where the presence of root formations is irrelevant. U.S. v. Gallant, 25 F.3d 36 (1st Cir. 1994).
1st Circuit refuses to extend Jencks Act to sentencing. (770) Defendant argued that the court should require the government to provide prior statements of the witnesses whom it offers at sentencing. The 1st Circuit refused to consider whether to extend the Jencks Act retroactively to sentencing, since no request for the materials was made here. This might be overlooked if there was any indication that a miscarriage of justice had resulted. But the discrepancies in a government agent’s testimony between the first and second hearing were minor and would have been apparent from a review of the transcript of the first hearing. As for defendant’s co-conspirator, who gave far more damaging testimony, the district court deemed him credible, and nothing in his prior statements would have changed this decision. U.S. v. Dupont, 15 F.3d 5 (1st Cir. 1994).
1st Circuit rejects claim that testimony was unreliable to determine drug quantity. (770) Defendant argued that the sentencing court erroneously relied on a witness’s uncorroborated and self-contradictory testimony which was given only to receive favorable treatment from the government. The 1st Circuit upheld reliance on the testimony, since defense counsel conceded that if the witness’s testimony were believed, his client’s claim would collapse. The district court considered the same arguments defendant now raised, and found the witness’s testimony to be reliable. Absent clear error, such assessments are exclusively within the province of the district court. U.S. v. Olivier-Diaz, 13 F.3d 1 (1st Cir. 1993).
1st Circuit relies on grand jury testimony to show defendant’s control over witness. (770) The district court relied on the grand jury testimony of one witness to find that defendant was responsible for losses caused by a fraud scheme involving that witness. The 1st Circuit held that the hearsay testimony had adequate indicias of reliability. It was given under oath, subject to the penalties of perjury, in a formal grand jury proceeding that resulted in defendant’s indictment. The district court was provided with a complete transcript of the testimony wherein the witness admitted that defendant “called the shots” in the scheme. This testimony was the only direct evidence before the district court on defendant’s influence over the witness. In addition, the sentencing judge was familiar with both the facts of the case and defendant’s association and involvement with his co-defendants. The district court’s refusal to allow an evidentiary hearing at which the witness could have been cross-examined was not an abuse of discretion. U.S. v. Williams, 10 F.3d 910 (1st Cir. 1993).
1st Circuit holds upholds reliance on information not disclosed until after defendant pled guilty. (770) Defendant sold a gun to an undercover agent. After pleading guilty to being a felon in possession of a firearm, he learned through the PSR that the government intended to press for an enhancement under §2K2.1(b)(5), based on the agent’s representation that he intended to use the firearm to protect a drug trafficking operation. The 1st Circuit upheld the enhancement, rejecting defendant’s claim that a sentencing court cannot rely on evidence not known to a defendant at the time he tenders his plea. Absent bad faith, the critical time for disclosure of sentence-related information is not prior to taking a plea, but prior to sentencing. Through the PSR, defendant received ample warning of the agent’s allegations. He was able to challenge those allegations at an evidentiary hearing. No more was required. U.S. v. Brewster, 1 F.3d 51 (1st Cir. 1993).
1st Circuit affirms estimate based on co-conspirator’s testimony. (770) At trial a co-conspirator testified that defendant had delivered “18, maybe 20” additional ounces of cocaine to him during the summer of 1988. Defendant objected to the use of this estimate, arguing that it was “too casual,” and that the co-conspirator was himself a user during this period and admitted to hazy recollections or mistakes in other testimony. The 1st Circuit affirmed the use of the co-conspirator’s estimate. The district court, which heard the co-conspirator’s testimony at trial and defendant’s testimony at the sentencing hearing, was entitled to choose between them. Further, defendant himself had been recorded as advising the co-conspirator in the fall of 1988 that the co-conspirator still owed “24 something,” a figure that suggested prior deliveries of $24,000 of cocaine. The time over which defendant supplied the co-conspirator and the size of the purchases were also consistent with the 18-20 ounce figure. U.S. v. Elwell, 984 F.2d 1289 (1st Cir. 1993).
1st Circuit rules reference to hearsay nature of testimony insufficient to preserve confrontation claim. (770) At defendant’s sentencing, the quantity of drugs was determined by testimony from a law enforcement officer as to what he was told by defendant’s criminal associates, turned informants. Defendant claimed the procedure violated the confrontation clause, but the 1st Circuit held that he waived the claim. Defendant had not attempted to call any of the hearsay declarants, and had not explicitly raised a 6th Amendment claim below. His conclusory reference to the testimony as hearsay was insufficient to alert the district court to the confrontation claim; it would more likely be interpreted as a challenge to the accuracy of the estimates. The court collected authority from other circuits that take differing approaches to the confrontation clause question. A 5th Amendment claim based on the alleged unreliability of the evidence was also waived, and there was no plain error given defendant’s failure to offer any evidence to suggest the evidence was false. U.S. v. Montoya, 967 F.2d 1 (1st Cir. 1992).
1st Circuit upholds reliance on information adduced at trials of co-conspirators. (770) Defendant complained that he was denied effective assistance of counsel by the district court’s reliance upon information adduced at the trials of co-conspirators to find him the leader of five or more people under guideline section 3B1.1(a). The 1st Circuit rejected this complaint, since a district court may rely on evidence adduced at trials of co-conspirators for sentencing purposes as long as the defendant receives notice prior to its use and has the opportunity to challenge its reliability. Here, defendant received notice through the presentence report that the information was being used. Moreover, the original indictment named seven co-conspirators, thereby putting defendant on notice that he might be considered a leader of a conspiracy consisting of at least five members. The disputed information was also contained in a trial memorandum that defendant received prior to trial. U.S. v. McCarthy, 961 F.2d 972 (1st Cir. 1992).
1st Circuit upholds reliance upon defendant’s testimony at a co-defendant’s trial. (770) Relying upon U.S. v. Berzon, 941 F.2d 8 (1st Cir. 1991), defendant contended that the district court improperly considered testimony and evidence given at proceedings against his co-defendants to determine that he played a supervisory role in the offense. The 1st Circuit upheld the enhancement, finding Berzon was not applicable. Unlike the defendant in Berzon, defendant was not ignorant of the information upon which the court relied in sentencing him, hence he was not denied a meaningful opportunity to comment. To the extent that information was derived from a co-defendant’s trial, it came from testimony defendant himself had provided before the same judge. Defendant included excerpts from his testimony at the co-defendant’s trial in a memorandum he submitted to the judge prior to his sentencing hearing. U.S. v. Canada, 960 F.2d 263 (1st Cir. 1992).
1st Circuit upholds reliance on hearsay at sentencing hearing. (770) The 1st Circuit rejected defendant’s contention that district court relied on the untrustworthy hearsay testimony of a government agent in sentencing. All of the evidence presented at the sentencing hearing by the government agent was corroborated by evidence admitted at trial, under oath and subject to cross-examination. U.S. v. Rojo-Alvarez, 944 F.2d 959 (1st Cir. 1991).
1st Circuit remands for district court to clarify whether it relied on information without giving defendant notice. (770) Defendant contended that the district court adjusted his offense level upward based on information which he had no opportunity to rebut. The information consisted of testimony by a DEA agent at the sentencing hearing of a co- defendant. The 1st Circuit found that if the district court considered this information in sentencing defendant, defendant should have been provided with notice and an opportunity to comment. Since the record was unclear as to whether the district court considered this information, the case was remanded to the district court with directions to indicate on the record whether the disputed information had been relied upon. If the court did rely on the information, it should vacate the sentence and defendant should be sentenced by a different judge. U.S. v. Berzon, 941 F.2d 8 (1st Cir. 1991).
1st Circuit requires disclosure of letters from victims relied on by the judge in sentencing. (770) At sentencing the district judge quoted from a letter he had received from a victim, in imposing a longer sentence than the government had recommended. In addition, the court had received numerous letters from other victims that were not part of the presentence report. The 1st Circuit ordered resentencing, exercising its supervisory power to hold that whenever a sentencing court considers documents which are not required to be disclosed by Rule 32, Fed. R. Crim. P., it should “either make clear that the document is not being used for its factual content, or should disclose to the defendant as much as was relied on, in a timely manner, so as to afford the defendant a fair opportunity to examine and challenge it.” U.S. v. Curran, 926 F.2d 59 (1st Cir. 1991).
1st Circuit upholds obstruction enhancement for defendant who attempted to mislead the court. (770) Defendant’s offense level was increased by two points for obstruction of justice for misrepresenting that (a) he had been denied access to a law library while incarcerated, and (b) he had not been given an opportunity to review his presentence report. He argued that it was improper to rely on his detention officer’s affidavit because it was hearsay. The 1st Circuit found no impropriety, as defendant did not suggest that the officer lacked personal knowledge or had reason to lie. The commentary to guideline § 3C1.1, suggesting that testimony should be evaluated in a light most favorable to a defendant, does not require settlement of all evidentiary disputes favorably to the defendant. Finally, the court rejected defendant’s argument that the adjustment was a disguised punishment for defendant’s failure to accept responsibility. U.S. v. Aymelek, 926 F.2d 64 (1st Cir. 1991).
1st Circuit upholds credibility finding that defendant had urged son to rob bank to obtain bail money. (770) The district court departed upward and required defendant to serve an additional two months in prison because it found that defendant had urged his son to rob another bank to obtain bail money for defendant. Defendant argued that the evidence was insufficient to support the finding since the government put pressure on his son to testify by offering him immunity. The 1st Circuit rejected this argument. The son’s testimony was corroborated by a letter that defendant sent to another son. Moreover, the issue was one of credibility, and the district court was authorized to accept the son’s testimony as true. U.S. v. Porter, 924 F.2d 395 (1st Cir. 1991).
1st Circuit upholds findings based upon defendant’s statements, presentence report, and official sources. (770) Defendant claimed that the district court’s sentence was based upon unreliable and uncorroborated information. The 1st Circuit upheld the district court’s findings. The transcript of the sentencing proceedings showed that the judge relied on information from the defendant’s own recorded statements, from the presentence report (to which defendant objected only as to its failure to recognize his acceptance of responsibility), and from the government’s sentencing memorandum, which was based on official sources (tape recordings of drug deals played at trial, witness interviews, and statements by FBI agents, Puerto Rico police officers, and confidential sources). The judge specifically found this information to be reliable, and that finding was not clearly erroneous. U.S. v. Rodriguez-Cardona, 924 F.2d 1148 (1st Cir. 1991).
1st Circuit upholds denial of right to cross-examine live witnesses at sentencing. (770) Defendants claimed that they were improperly denied the opportunity to cross-examine live witnesses concerning the quantity of cocaine involved in their offense at sentencing. The 1st Circuit upheld the district court’s action. Defendants raised only general objections to the presentence report. They laid no foundation establishing the need for cross- examination of witnesses. They made no effort to interview and record statements by the witnesses, and made no demand that they be produced or subpoenaed. Their request made only on the day of sentencing. The district court’s reliance on the testimony introduced by the government was proper. Each witness had testified under oath, either at trial or before a grand jury, and was corroborated generally by the many witnesses who testified at trial. Moreover, the sentencing judge was also the presiding judge and had the opportunity to make an independent assessment of the credibility of the witnesses. U.S. v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990).
1st Circuit upholds failure of government witness to attend sentencing hearing. (770) Defendants contended that the district court erroneously refused to compel the government informant and chief witness to attend their sentencing hearings. Through the use of cross-examination, defendants argued they could demonstrate entrapment, and thereby establish a basis for a downward departure under guideline § 5K2.10, which permits a downward departure where the victim’s wrongful conduct contributed to provoking the offense behavior. The 1st Circuit rejected this argument, finding that defendants had the opportunity for lengthy cross examination of the informant at trial. Moreover, § 5K2.10 is ordinarily not relevant to non-violent offenses such as these drug offenses. U.S. v. Sanchez, 917 F.2d 607 (1st Cir. 1990).
1st Circuit holds prior acquittal may be relied upon by a sentencing court if it meets reliability standards. (770) Drug defendant who was acquitted at an earlier trial for possession of a weapon during a drug offense claimed that it violated due process for a sentencing court to rely upon this acquittal to enhance the offense level for possession under § 2D1.1(b)(1) (possession of a weapon during a drug offense). The 1st Circuit affirmed, holding that the acquittal simply meant that the government did not meet its considerable burden of proof beyond a reasonable doubt. It did not render the circumstances underlying the gun possession charge so clearly improbable that it could not be connected with the drug possession offense. The enhancement was proper. U.S. v. Mocciola, 891 F.2d 13 (1st Cir. 1989).
1st Circuit holds that use of defendant’s trial testimony during sentencing did not violate right to jury trial. (770) Defendant testified at trial about his prior drug dealing and drug habits. He claimed that the use of this testimony for sentencing purposes violated his 6th Amendment right to a jury trial and 5th Amendment privilege. Holding the 5th Amendment was waived, the 1st Circuit also held that the 6th Amendment was not violated. “It is well established that statements made for the purpose of one case are not necessarily immunized from use in other trials.” The inclusion of this testimony in the sentencing decision was proper because it “had sufficient indicia of reliability.” U.S. v. Mocciola, 891 F.2d 13 (1st Cir. 1989).
1st Circuit finds no evidentiary hearing was required at sentencing as to origin of $68,000. (770) At the sentencing hearing, the government offered to call the author of the DEA report as a witness in order to establish that defendant had told him that the $68,000 constituted income from a prior drug transaction. The 1st Circuit ruled that defendant’s version of the facts was implausible and agreed with the district court that there was no need to bolster the DEA report by calling its author to the stand. However, the case was remanded to determine whether the court had appended its findings to the presentence report as required by Fed.R.Crim.P. 32 (c)(3)(D). U.S. v. Gerante, 891 F.2d 364 (1st Cir. 1989).
1st Circuit holds statements by defendant to probation officer were admissible against him at sentencing. (770) Defendant claimed that the sentencing court erred in relying upon his statements to the Probation Department. The court rejected this argument noting that sentencing courts have authority under the statutes and the Guidelines to consider hearsay evidence at sentencing. Moreover, the statements here were not hearsay. They were party admissions, which are not considered hearsay under FRE 801(d)(2)(A). U.S. v. Wright, 873 F.2d 437 (1st Cir. 1989).
1st Circuit rules confession was not coerced and was admissible at sentencing hearing. (770) On appeal the 1st Circuit found that the defendant’s statements to the ship’s security officer were not coerced according to the record and thus, they were admissible at sentencing. Moreover, the defendant had waived the right to challenge the voluntariness of the confession by entering a guilty plea. U.S. v. Wright, 873 F.2d 437 (1st Cir. 1989).
2nd Circuit upholds use of affidavits to determine restitution. (770) Defendant was convicted of securities fraud and money laundering counts arising from his involvement in a scheme to manipulate the price of a publicly traded security. The district court relied on three affidavits – two of them by co-conspirators, and one by an FBI agent – to determine an overall view of the timing and manner of the fraudulent scheme. Defendant argued that the affidavits lacked the “indicia of reliability” required for use of hearsay evidence during sentencing proceedings. The Second Circuit upheld the court’s reliance on the affidavits. Defendant was given an adequate opportunity to present his position. Given the slight weight the affidavits were given, the district court’s decision not to expand the evidentiary hearing to include live testimony and cross-examination of the affiants was within its discretion. U.S. v. Gushlak, 728 F.3d 184 (2d Cir. 2013).
2nd Circuit rejects use of uncontested PSR to decide if prior offense was crime of violence. (770) Defendant’s PSR stated that he was a career offender based on a conviction for a crime of violence and a drug trafficking offense. The Second Circuit held that the district court plainly erred by adopting the PSR’s findings. The controlled substance offense could not be used because defendant sustained the conviction after he committed the instant offense. The court also could not rely on the PSR’s uncontested description of defendant’s conviction for battery on a law enforcement officer to decide that it was a crime of violence. The slightest unwanted intentional physical contact constitutes battery under Florida law, and the government submitted no evidence demonstrating that defendant’s battery conviction rested on anything more. The PSR stated that defendant struck a detention deputy in the face with a closed fist. However, the court may not rely on a PSR’s factual description of a defendant’s pre-arrest conduct to determine whether a prior offense is a crime of violence under § 4B1.2(a)(1), even if the defendant does not object to the PSR’s description. U.S. v. Reyes, 691 F.3d 453 (2d Cir. 2012).
2nd Circuit allows consideration of defendant’s post-sentencing statements despite free speech claim. (770) Defendant was a member of the legal team for Sheikh Abdel Rahman, who was convicted of a variety of terroristic crimes. She was convicted of smuggling messages to and from the incarcerated Rahman in violation of “Special Administrative Measures” to which she was subject as a member of Rahman’s legal team. Defendant was initially sentenced to 28 months, but the Second Circuit found the court committed procedural error at sentencing. On remand, the district court resentenced her to 120 months based in part on her post-sentencing statements that indicated a lack of remorse, and suggested that she regarded her previous sentence as trivial. The Second Circuit held that the district court’s consideration of her post-sentencing statements did not violate her First Amendment right to freedom of speech. The sentencing judge was determining the characteristics of the defendant, through the contents of statements she voluntarily and publicly made. Moreover, the increase in her sentence was based on consideration of myriad other factors not properly or fully addressed at her previous sentencing. U.S. v. Stewart, 686 F.3d 156 (2d Cir. 2012).
2nd Circuit reverses where court relied on bail hearing report to find that child molester was not dangerous. (770) Defendant was indicted on federal child pornography charges. In support of his request for release on bail pending trial, he submitted a psychologist’s report which argued that defendant should be released to his parents pending trial. Defendant eventually pled guilty under a plea agreement that provided for an advisory sentencing range of 235-240 months. The district court imposed a below-guidelines sentence of 132 months based in part on the psychologist’s report that defendant was not a danger to the community. The Second Circuit reversed, since the report dealt only with whether defendant would be a danger to the community if he were to be released to his parents pending trial. In concluding that defendant was unlikely to molest another boy, the doctor reasoned that defendant would have “little opportunity to do [so]” because he would be “closely monitored by his parents.” However, what was relevant at sentencing was whether defendant would pose a danger to society once he had served his sentence and was released from prison. U.S. v. DeSilva, 613 F.3d 352 (2d Cir. 2010).
2nd Circuit says reliance on unsubstantiated charged conduct made sentence unreasonable. (770) Defendant pled guilty to one count of possession of child pornography. His recommended guideline range was 24-30 months’ imprisonment, and both parties agreed that this would be reasonable. However, the district court imposed a sentence of 90 months based, in part, on pending state charges against defendant for sexual abuse of a minor. The court cited the fact that defendant had engaged in sexual conduct with a minor child “on repeated occasions.” However, defendant agreed to admit only to a single incident of felony sexual abuse in the state case. Because it was unclear to what extent the district court impermissibly based the increased sentence on unsubstantiated charged conduct, the Second Circuit held that the sentence was procedurally unreasonable. The district court was not presented, as far as could be told, with reliable substantiation for the remaining charges in the state indictment. Under such circumstances, a sentence enhancement based solely on unproven charges in an indictment would be improper. U.S. v. Juwa, 508 F.3d 694 (2d Cir. 2007).
2nd Circuit says Internet chats were not sufficient evidence of past improper relationship to support criminal history departure. (770) Defendant traveled to New York to have sexual relations with a boy he had chatted with over the Internet. The “boy” was in reality an undercover agent. Although the case was being remanded 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 Second Circuit still considered whether the grounds relied upon by the court for departure from criminal history category III to IV were proper. The district court properly considered defendant’s previous parole violations, his failure to register as a sex offender when he moved to a new residence, and his prior attempts to arrange sexual liaisons with minors. However, the court improperly relied on defendant’s alleged previous sexual relationship with a teenage boy. The only evidence of that relationship was in the chats between defendant and the undercover agent, and defendant claimed he made up the story to entice the victim. The contents of Internet chats alone are not the type of “reliable information” upon which a § 4A1.3 departure may be based. The alleged relationship was not established by reliable information, and thus could not properly form the basis for a § 4A1.3 departure. On remand, the district court can consider whether it would have sentenced defendant differently had it not relied on this improper ground. U.S. v. Weisser, 417 F.3d 336 (2d Cir. 2005).
2nd Circuit upholds use of hearsay at sentencing. (770) Defendant argued that the district court violated his Fifth and Sixth Amendment rights when it considered at sentencing several out-of-court statements that witnesses made to police against defendant. The Second Circuit held that the right of confrontation does not bar the consideration of hearsay testimony at sentencing. The Supreme Court’s recent decisions in Crawford v. Washington, 541 U.S. 1354 (2004) and U.S. v. Booker, 543 U.S. 220 (2005) did not require reconsideration of this issue. Neither Crawford nor Booker addressed the applicability of the right of confrontation to the sentencing context or the admissibility of hearsay testimony at sentencing. In fact, judges imposing sentences under Booker may exercise greater discretion than they could have exercised under the pre-Booker regime. If the consideration of hearsay testimony during sentencing was not prohibited under a mandatory guidelines regime, there was no logical basis for concluding that it was prohibited under the system of advisory guidelines established by Booker. U.S. v. Martinez, 413 F.3d 239 (2d Cir. 2005).
2nd Circuit holds that district court properly relied on plea agreement stipulation to determine loss. (770) Defendant was involved in a scheme to defraud a jeweler by purchasing jewelry with a counterfeit certified bank check. Defendant argued that the district court erred in calculating the loss amount using a co-conspirator’s estimate of the jewelry’s $590,000 “cost,” rather than the co-conspirators’ estimate of what they would have to pay for the jewelry. The Second Circuit held that the court properly relied on defendant’s stipulation in his plea agreement to calculate loss. Under circuit precedent, a stipulation in a plea agreement, although not binding, may be relied upon in finding facts relevant to sentencing. Because defendant’s loss amount stipulation was knowing and voluntary, the district court could have properly found loss amount based solely on the stipulation, as long as it also considered any other relevant information presented to it. There was ample evidence in the record supporting a loss finding of between $500,000 and $800,000. U.S. v. Granik, 386 F.3d 404 (2d Cir. 2004).
2nd Circuit says judge’s references to Sopranos television show did not show sentence was based on defendant’s ethnicity. (770) During a discussion of defendant’s perjury about his mother’s involvement in his fraud scheme, the judge interrupted and said “So this isn’t The Sopranos?” The judge also made a second reference to the Sopranos television show, stating that this was “an outrageous fraud,” “a classic boiler room operation,” and “It looks like a bad episode out of The Sopranos, albeit without anybody getting hurt physically.” The Second Circuit rejected defendant’s argument that the court’s comments “cast aspersions on [his] ethnic heritage,” and infected the sentence imposed on defendant, an Italian-American. The court’s first reference to The Sopranos was to a theme of the series concerning the difficult relationship between the principal character and his mother. The second was to a particular episode that portrayed a boiler-room operation similar, save for acts of violence, to the one to in which defendant was involved. The court made it very plain that the individual and distinctive aspects of defendant’s character and crime were the basis for the sentence imposed. U.S. v. Fiore, 381 F.3d 89 (2d Cir. 2004).
2nd Circuit relies on co-conspirators’ testimony to sentence defendant for crack. (770) Defendant argued for the first time on appeal that the district court erroneously determined the quantity of crack for which he was accountable by crediting the unreliable testimony of his co-conspirators and by counting transactions involving powder cocaine as if they involved crack. The Second Circuit found no plain error in the court’s drug quantity finding. Although the testimony of defendant’s co-conspirators contained minor inconsistencies and lack of detail, it had sufficient indicia of reliability. The co-conspirators’ testimony was largely consistent with defendant’s own testimony and was substantiated by recorded phone conversations and phone and pager records. The court also did not plainly error in holding that the 50 grams for which defendant was held responsible involved crack rather than powder cocaine. In one uncontroverted instance, a co-conspirator “cooked” two ounces of powder cocaine into crack for distribution. Defendant saw the co-conspirator cook the cocaine and could reasonably foresee that the crack was intended for distribution. A number of other crack transactions were substantiated by testimony and recorded phone conversations involving defendant and his co-conspirators. U.S. v. Hargrett, 156 F.3d 447 (2d Cir. 1998).
2nd Circuit upholds refusal to credit polygraph evidence at sentencing. (770) Defendant was convicted of extortion in connection with a kidnapping. To persuade the court not to impose “related conduct” sentencing enhancements, defendant submitted polygraph evidence regarding his knowledge of the kidnapping. After the government refused his request to be tested by a polygrapher, defendant arranged for his own test. The polygrapher testified that there was only a 6% chance that defendant had lied about his knowledge of the kidnapping. The district court expressed its skepticism of polygraphs and found that defendant’s polygraph evidence was “flat out wrong.” The Second Circuit upheld the district court’s refusal to credit defendant’s polygraph evidence. Although the court said it believed in excluding polygraph evidence, it allowed defendant great latitude in presenting the evidence at sentencing. Because the Second Circuit has not yet decided whether polygraphs are sufficiently reliable to be admissible under the Federal Rules of Evidence, the district court did not clearly err in finding the polygraph evidence presented here was unworthy of credit. U.S. v. Messina, 131 F.3d 36 (2d Cir. 1997).
2nd Circuit bases upward departure on 23-year-old uncharged molestations. (770) Defendant was convicted of transporting a minor across state lines to sexually molest him. At trial and at sentencing, the government presented testimony from three other witnesses who had been similarly victimized by defendant when they were minors. One witness testified about events that had occurred 16-20 years ago and another testified as to events that had occurred 21-23 years ago. The Second Circuit approved an upward departure from criminal history I to II based on the prior molestations. So long as a sentencing court does not rely on misinformation, its discretion is largely unlimited as to the kind of information it may consider and the source from which the information comes. The district court found that the testimony of these three witnesses was sufficiently reliable. U.S. v. Larson, 112 F.3d 600 (2d Cir. 1997).
2nd Circuit relies on state presentence report for another offense to prove prior offense. (770) The district court sentenced defendant as an armed career criminal based on three prior violent felonies, including a 1970 attempted robbery in New York. The government did not have a certified copy of the 1970 conviction, but used a 1982 presentence report prepared by the New York City probation department in connection with another of defendant’s criminal convictions. The Second Circuit held that the district court properly relied on the 1982 New York presentence report to prove the existence of the 1970 New York offense. The report had sufficient indicia of reliability to consider at sentencing. The fact that a certified copy of the 1970 conviction might have been preferable did not detract from the report’s reliability. U.S. v. Brown, 52 F.3d 415 (2d Cir. 1995).
2nd Circuit rejects departure based on unrelated foreign conduct and insufficient triple hearsay. (770) Defendant pled guilty to possessing fraudulent alien registration cards. The district court made a 16-level upward departure under §§ 5K2.0 and 5K2.9 based on evidence that defendant, while a Colombian police officer, had worked for a cocaine cartel, and had come to the United States either to flee prosecution or to assist the cartel’s leader in collecting money. The Second Circuit rejected the departure. First, an offense level departure cannot be based on unrelated foreign crimes. Defendant’s illegal activities in Colombia were not crimes against the U.S. and therefore should not be included in the guideline calculations. Second, the government’s theory that defendant came here to collect money for the cartel was supported only by the triple hearsay statement of an unidentified witness. The government admitted that it did not have proof that defendant came to the U.S. to avoid prosecution in Colombia. U.S. v. Chunza-Plazas, 45 F.3d 51 (2d Cir. 1995).
2nd Circuit finds defendant was not denied right to cross-examine witnesses at sentencing. (770) On August 27, the first day of sentencing, the government presented as witnesses several of defendant’s victims. After lengthy testimony, the judge declined to hear defense counsel, and adjourned until September 2. Defendant argued that he was improperly denied the right to cross-examine the witnesses who testified August 27. The 2nd Circuit found no error. Defense counsel did not ask for an opportunity to cross-examine the witnesses, he merely asked for an opportunity to speak, which he did on the second day of sentencing. Counsel did not object when the judge told the witnesses that they did not need to return on September 2. Moreover, defendants have no right to confrontation at sentencing. Also, defendant did not say what cross-examination might have revealed. He did not claim that the witnesses misled the court in any way. Much of their testimony simply corroborated information contained in letters to the court. U.S. v. Harris, 38 F.3d 95 (2nd Cir. 1994).
2nd Circuit finds defendant’s naturalized status was not the basis for sentencing disparity. (770) Defendant claimed that the district judge improperly imposed a disparate sentence on him, based on the judge’s reference at sentencing to defendant’s national origin. The 2nd Circuit asked the district judge the clarify his reasons for the longer sentence, and after receiving the judge’s clarification, found that defendant’s naturalized status was not the basis for the sentencing disparity. Reference to national origin and naturalized status is permissible, so long as it does not become the basis for the sentencing disparity. Here, the judge stated that defendant’s longer sentence was based on his intelligence and lack of remorse. Both of these are proper factors to consider. A defendant’s intelligence is relevant to his or her ability to conform to legal standards and earn a living. There also may be a need to deter those whose intelligence alerts them to various criminal opportunities. U.S. v. Jacobson, 15 F.3d 19 (2nd Cir. 1994).
2nd Circuit relies on drug records to support quantity involved in conspiracy. (770) The 2nd Circuit found that the district court’s conclusion that defendants were accountable for 15 kilograms of cocaine was amply supported by the evidence. Drug records found in defendants’ apartment established that they were involved in the conspiracy to the extent of at least 30 kilograms of cocaine. U.S. v. Wilson, 11 F.3d 346 (2nd Cir. 1993).
2nd Circuit relies on drug records to support quantity involved in conspiracy. (770) The 2nd Circuit found that the district court’s conclusion that defendants were accountable for 15 kilograms of cocaine was amply supported by the evidence. Drug records found in defendants’ apartment established that they were involved in the conspiracy to the extent of at least 30 kilograms of cocaine. U.S. v. Wilson, 11 F.3d 346 (2nd Cir. 1993).
2nd Circuit upholds crediting testimony about drug quantity over inconsistent testimony about profit. (770) Defendants objected to the district court’s use of testimony by a conspiracy’s leaders concerning the quantity of crack sold during the time defendants were members of the conspiracy. Because there were inconsistencies between their testimony about the amount of crack sold and the amount of profit made during the same period, defendants argued that the district court was required to use the smaller of the two quantities. The 2nd Circuit rejected this argument. An appellate court is not in a position to second-guess a district court’s weighing of the credibility of different parts of a witness’s testimony. U.S. v. Beverly, 5 F.3d 633 (2nd Cir. 1993).
2nd Circuit upholds reliance on PSR where defendant failed to object before sentencing. (770) At sentencing, defendant for the first time attacked the reliability of the evidence underlying the enhancements to his sentence. He contended that while the PSR contained allegations from informants that he had committed certain thefts, the PSR did not conclude that defendant committed the thefts and the allegations were not sufficiently reliable to support that conclusion. The 2nd Circuit upheld the consideration of the PSR. There is no requirement that a PSR make findings of fact, rather than simply recite the pertinent information. The court was entitled to consider the statements of absent informants, especially since defendant made no demand that they be summoned for cross-examination. Further, because defendant failed to contest the allegations contained the PSR prior to sentencing, as required by the district court’s scheduling orders, the court was entitled to regard the allegations as true. The consideration of the hearsay evidence did not violate the Confrontation Clause. U.S. v. Streich, 987 F.2d 104 (2nd Cir. 1993).
2nd Circuit holds that sentencing court must consider illegally seized evidence provided it was not seized to enhance sentence. (770) The 2nd Circuit held that a sentencing court must consider evidence seized in violation of the 4th Amendment, provided that the evidence was not seized for the express purpose of enhancing a defendant’s sentence. The benefits of providing sentencing judges with reliable information about the defendant outweigh the likelihood that allowing consideration of illegally seized evidence will encourage unlawful police conduct. Absent a showing that officers obtained evidence expressly to enhance a sentence, a district judge may not refuse to consider relevant evidence at sentencing, even if that evidence was seized in violation of the 4th Amendment. U.S. v. Tejada, 956 F.2d 1256 (2nd Cir. 1992).
2nd Circuit affirms defendants’ ability to deliver additional cocaine. (770) The 2nd Circuit found no error in the district court’s determination that defendants were reasonably capable of delivering five additional kilograms of cocaine to the confidential informant. One defendant admitted in his plea allocution that he conspired with the another defendant to distribute the five kilograms. In a letter to the Assistant U. S. Attorney, the three defendants explained that their drug “boss” had been ready with five kilograms on the day of the deal, but when the informant failed to show up, the deal did not go through. In addition, evidence seized at defendants’ apartment, including 87 percent pure cocaine, weapons, bullet-proof vests, electronic scales and other narcotics paraphernalia, indicated that defendants were not low level traffickers. Two defendants made tape-recorded statements in which they agreed to supply the informant with five kilograms of cocaine. U.S. v. Olvera, 954 F.2d 788 (2nd Cir. 1992).
2nd Circuit holds court not bound by jury’s findings as to drug quantity. (770) A jury found by special interrogatory that defendants had conspired to distribute five or more kilograms of cocaine. Defendants argued that they should not have been sentenced on the basis of five kilograms because the evidence was insufficient to show that they intended or were able to sell more than two kilograms. The district court had rejected this argument, finding it was bound by the jury’s verdict. The 2nd Circuit remanded for resentencing, finding the district court’s view that it was bound by the jury’s verdict to be erroneous. The government contended no remand was necessary, since the jury found each defendant had the requisite knowledge and intent beyond a reasonable doubt. Therefore, a sentencing court would have to make the same finding, since it need only make its findings by a preponderance of the evidence. The 2nd Circuit rejected this solution, finding that the sentencing court could make findings that differed from the jury’s findings. Questions of inference and credibility are within the province of the finder of fact. U.S. v. Jacobo, 934 F.2d 411 (2nd Cir. 1991).
2nd Circuit finds no due process violation in court’s reliance upon evidence introduced at brothers’ trial. (770) The 2nd Circuit rejected defendant’s contention that he was denied due process. Defendant argued that the district court failed to notify him that it would rely upon facts from his brothers’ trial in setting defendant’s base offense level. Although the presentence report did not specify that the facts from his brothers’ trial would be used, the report did set forth all the facts established at that trial that the sentencing judge later relied on in determining defendant’s offense level. U.S. v. Pimental, 932 F.2d 1029 (2nd Cir. 1991).
2nd Circuit says judge may rely on evidence from suppression hearing at sentencing. (770) Defendant argued that the district court failed to preclude the possibility that defendant’s testimony at his suppression hearing influenced the court’s determination of the number of marijuana plants involved in defendant’s offense. The 2nd Circuit found no error in the district court’s determination. It was clear from the district court’s statements that it did not rely upon any evidence that was presented at the suppression hearing. Moreover, even if the judge had relied upon such evidence, it would not be error. Illegally seized evidence is reliable, and if it is clear the evidence was not gathered for the purpose of improperly influencing the sentencing judge, then it is proper to consider in sentencing. U.S. v. Madkour, 930 F.2d 234 (2nd Cir. 1991).
2nd Circuit upholds reliance on testimony of co-defendant. (770) Defendant contended that the district court’s resolution of disputed matters was not supported by a preponderance of the evidence, principally because the court relied on testimony of a cooperating co-defendant. Defendant characterized the testimony as “largely uncorroborated and blatantly incredible and contradictory.” The 2nd Circuit rejected this contention. The district court’s findings were supported by the testimony, portions of which were corroborated, and a transcript of a meeting between defendant and an undercover agent. U.S. v. Vargas, 920 F.2d 167 (2nd Cir. 1990).
2nd Circuit upholds district court’s reliance on hearsay testimony. (770) The 2nd Circuit upheld the district court’s reliance on hearsay testimony to determine that defendant sold 150 kilograms of cocaine. Several different individuals made statements about defendant’s drug activity. Each of these individuals made their statements independently of one another; in three cases the statements were made before a grand jury, and in others the statements were made at the time of the person’s arrest. The statements were corroborated by defendant’s telephone records and hotel records. Defendant himself admitted that he was engaged in drug activities for three years. Since the accounts of defendant’s drug distribution were “numerous and independent,” and displayed a “high degree of intercorrelation,” the hearsay testimony had a sufficient degree of reliability for the district court to conclude it was accurate. U.S. v. Prescott, 920 F.2d 139 (2nd Cir. 1990).
2nd Circuit determines that guidelines did not change procedure by which district court resolves disputed facts. (770) 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 upholds upward departure from criminal history category III to criminal history category VI. (770) The 2nd Circuit upheld the district court’s upward departure from criminal history category III to criminal history category VI on the basis of defendant’s violent criminal history. Defendant had one attempted murder conviction for which he received lenient juvenile offender treatment and was involved in another murder. The 2nd Circuit also found that defendant’s involvement in the murder had been established by a preponderance of the evidence. A confidential informant provided a detailed account of the murder and defendant’s role in the murder. It was proper for the sentencing judge to rely on the information provided by the confidential informant because it was corroborated by the physical evidence from the murder scene, by interviews conducted by the police, and by the testimony of another witness. Defendant’s violent nature provided good cause for not revealing the confidential informant’s identity. U.S. v. Nichols, 912 F.2d 598 (2nd Cir. 1990).
2nd Circuit affirms sentence even though judge made misstatements about quantity of drugs involved. (770) At sentencing, the judge made several misstatements as to the amount of cocaine involved in a conspiracy to distribute drugs. However, the findings were within the “range” of the jury’s special verdicts. The 2nd Circuit affirmed the sentence because the judge presided over the trial and heard all the testimony. Further, defendant offered no evidence contesting the facts found during sentencing. U.S. v. Campuzano, 905 F.2d 677 (2nd Cir. 1990), overruled on other grounds by U.S. v. Thomas, 274 F.3d 655 (2nd Cir. 2001).
2nd Circuit finds defendant waived argument that statements to probation officer should have been suppressed. (770) Defendant argued that because he was not informed by the probation officer of his right to remain silent and was questioned without counsel being present, his statements in the presentence interview should have been suppressed. The 2nd Circuit noted that before the guidelines, the presentence interview may not have been a “critical stage” of criminal proceedings necessitating the participation of counsel. But the court suggested that “arguably the guidelines had significantly altered the sentencing process in relevant ways.” Nevertheless the court held that the defendant waived the argument by failing to object when he was interviewed by the probation officer or at sentencing where the damaging admissions were presented. U.S. v. Colon, 905 F.2d 580 (2nd Cir. 1990).
2nd Circuit upholds use of acquitted conduct in determining base offense level. (770) Defendant was convicted of various narcotic offenses but acquitted of carrying a firearm during and in relation to a drug trafficking offense. The sentencing court considered the acquitted conduct in setting his base offense level. The 2nd Circuit affirmed, holding that defendant was not punished for the acquitted conduct: “The district court’s consideration of the acquitted conduct merely affected the point within the statutory range at which his sentence was imposed.” It was used solely to “justify the heavier penalties for offenses for which he was convicted.” The court held that a sentencing judge has broad discretion to consider criminal activity resulting in acquittal. U.S. v. Rodriguez-Gonzalez, 899 F.2d 177 (2nd Cir. 1990).
2nd Circuit holds that dismissed counts may justify upward departure, but only after detailed procedures are followed. (770) Defendant pled guilty to making a false statement concerning immigration matters in exchange for the dismissal of five other counts. The sentencing court considered the facts in the dismissed counts to depart upward from the guidelines by four months and to increase the fine by $9000. After finding that the defendant did not receive proper notice of the court’s intent to depart, the 2nd Circuit held that the [already served] sentence was improper. The court found that the commission did not intend that all misconduct not resulting in conviction could be taken into account in determining punishment. There must be both a temporal relationship as well as some similarity between the offenses in order to justify a departure. Under the facts of this case, the dismissed alien smuggling counts would have been grouped with the false statements offense. There were no aggravating circumstances to justify a departure. As for the counterfeit money counts, there was no showing that the defendant possessed the money knowingly. The case was remanded for a new sentencing hearing. U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990).
2nd Circuit affirms use of evidence from co-defendant’s trials in finding defendant was an organizer. (770) The district court added four points based upon its determination that defendant was the organizer of a conspiracy involving more than 12 defendants. Testimony at the trial of the co-defendants revealed that defendant occupied a leading role in the conspiracy. The 2nd Circuit held that a district court has “broad discretion to consider any information relevant to sentencing, including information adduced at a trial at which the defendant was not present.” U.S. v. Rios, 893 F.2d 479 (2nd Cir. 1990).
2nd Circuit holds that foreign conviction may be relied upon to determine sentence within the appropriate range despite alleged constitutional infirmities. (770) The 2nd Circuit held that it was within the trial court’s discretion to rely upon a foreign conviction, when sentencing a drug defendant to the maximum sentence within the appropriate guideline range. The sentencing judge was fully aware of the alleged constitutional infirmity surrounding the foreign conviction. The court ruled it was within his discretion to rely upon it so long as the discretion was informed, as it was here. The court relied upon the commentary to § 4A1.2 which allows the use of constitutionally infirm convictions if there exists reliable evidence of past criminal activity. The evidence here was reliable, and therefore the sentencing judge properly considered it. U.S. v. Soliman, 889 F.2d 441 (2nd Cir. 1989).
3rd Circuit affirms despite lack of notice that court would rely on testimony from associate’s sentencing. (770) Defendant and her criminal associate, Radomski, stole $1.7 million from friends and acquaintances. She argued for the first time on appeal that the court erred by failing to give her notice that it intended to rely on information from Radomski’s separate sentencing hearing. The Third Circuit held that any error did not affect defendant’s substantial rights. Defendant made no showing that if the court had given defense counsel notice, the court would have imposed a lesser sentence. Even if the court accepted that defendant would have called Radomski to the stand and thoroughly discredited him, defendant could not show this would have convinced the court to grant a downward departure or otherwise lessen her sentence. The court never determined that defendant bore more responsibility for the fraud. U.S. v. Berger, 689 F.3d 297 (3d Cir. 2012).
3rd Circuit allows court to rely on uncertified docket entry to decide if prior offense was a felony. (770) The district court found that defendant was a career offender based on two separate prior drug convictions. He was sentenced to nine months probation for a March 2000 conviction and one year of probation for a September 2000 conviction. At sentencing, the government offered certified copies of these convictions to establish that defendant was a career offender. The certified copy of the September conviction did not indicate whether defendant had pled guilty to a misdemeanor or a felony. The government argued that the Municipal Court docket showed that he had pled guilty to a felony. Although the docket was not a certified document, the Third Circuit held that the district court could rely on it in determining defendant’s career offender status. Docket entries are the type of judicial records that are permissible for sentencing for sentencing courts to use to establish past convictions for sentencing purposes. The fact that the certified conviction was incomplete and ambiguous as to the level of defendant’s offense did not prohibit the district court from looking to other reliable judicial records to establish the type of crime for which he was convicted. U.S. v. Howard, 599 F.3d 269 (3d Cir. 2010).
3rd Circuit reverses where court speculated as to why arrests did not lead to convictions. (770) Defendants pled guilty to robbery and firearms charges. Neither defendant had any prior adult convictions, but their PSRs listed several prior arrests, including a 2004 arrest for armed robbery that was “nol prossed.” Although no one at sentencing realized it, the nol prossed robbery charges arose from the same robbery for which they were being sentenced. The district court speculated that the only reason that defendants’ prior arrests had not resulted in convictions was because of the “breakdowns” in the state court system and not because of innocence. The district court found that defendants’ criminal histories were understated, and sentenced them to 10 years. The Third Circuit held that the district court’s speculation as to why defendants’ prior arrests did not result in prior convictions violated defendants’ due process rights to be sentenced based on reliable information. The court assumed that the only reason defendants had no adult convictions was because of breakdowns in the state court system, but there was no evidence in the record to support that finding. Moreover, resentencing would be required even without the speculation because the court improperly treated the 2004 arrest as a separate offense. U.S. v. Berry, 553 F.3d 273 (3d Cir. 2009).
3rd Circuit holds court’s findings, based in part on police report, were reasonable. (770) Defendant was convicted of being a felon in possession of a firearm. The district court found, based in part on a police report admitted into evidence at sentencing, that defendant had used the gun in connection with a crime of violence. Defendant argued that the court erred in admitting the police report into evidence because it was not verified or sworn, and the police officers who prepared the report were not present and did not testify as witnesses. The Third Circuit held that the court properly considered the unsworn statements in the police report. While a mere police report is not inherently reliable, it also is not inherently unreliable. Facts upon which a judge bases a sentence must have “sufficient indicia of reliability to support their probable accuracy.” Here, there was sufficient evidence to support the court’s finding that defendant used a gun in connection with a crime of violence. First, defendant’s estranged wife testified at the sentencing hearing that defendant had engaged in aggressive behavior with a gun just before the police arrived. Defendant’s possession of the gun was corroborated by the presence in his car of the holster for the gun that he used to shoot himself. Finally, the verbatim statements by the two police officers attached to the police report stated that defendant shot at them. This evidence distinguished this case from others where the factual finding at sentencing was based in large part upon a sole, inherently unreliable source. U.S. v. Leekins, 493 F.3d 143 (3d Cir. 2007).
3rd Circuit says defendant was not entitled to advance notice that court had doubts about defendant’s truthfulness. (770) Defendant complained that the district court improperly limited her substantial assistance departure based on the sentencing judge’s doubts about her credibility. The Third Circuit concluded that the district court could properly consider its reservations about defendant’s truthfulness in determining the extent of its departure. Moreover, defendant’s lack of notice that the departure would be affected by the court’s doubts as to the truthfulness of her testimony was not grounds for reversal. Nothing in the guidelines purports to require the judge to disclose in advance such matters as his appraisal of the undisputed material in the PSR or impressions created by the defendant during trial. “Indeed, such announcement of the judge’s tentative feeling about factors bearing on appropriate punishment might undermine the efficacy of the sentencing hearing.” U.S. v. Carey, 382 F.3d 387 (3d Cir. 2004).
3rd Circuit upholds reliance on drug addict’s testimony to determine drug quantity. (770) Defendant challenged the district court’s reliance on the testimony of Billings to find that defendant was involved in the distribution of between one and three kilograms of heroin. Billings testified that during the years 1995-1997, he and defendant traveled to Chicago every three months to purchase $15,000-$30,000 worth of heroin and/or cocaine, and that in 1998 and 1999, he and defendant traveled to New York every three months to obtain $30,000 worth of the drugs. Billings also testified that $30,000 would buy eight to nine ounces of heroin in New York. This was consistent with the quantity of drugs found in defendant’s car. Although Billings was a drug addict, his testimony was not internally inconsistent, was corroborated by the testimony of another witness (Morgan), and was subject to vigorous cross-examination at the sentencing hearing. The court, which observed their demeanor and was in a position to judge credibility, concluded that the testimony of Billings and Morgan was reliable. Because there was at least a minimal indicia of reliability to support the court’s reliance on Billings’ and Morgan’s testimony relating to drug quantity, the Third Circuit found no clear error. U.S. v. Givan, 320 F.3d 452 (3d Cir. 2003).
3rd Circuit says defendants should be given notice when extrinsic evidence is used at sentencing, but no plain error here. (770) Recently, in U.S. v. Reynoso, 254 F.3d 467, 470 (3d Cir. 2001), the Third Circuit held that notice should be given to defendants when extrinsic evidence is used at sentencing. In this case, the defendants argued that the district court considered evidence from their co-conspirator’s trial in determining their sentences without providing notice. The Third Circuit held that this was error, but defendants failed to show that it affected their substantial rights. When questioned at oral argument, defendants were unable to point to any specific objectionable evidence that was not already part of their presentence investigation report. Moreover they made no showing that even if they had been able to rebut certain evidence, it would have resulted in a lower sentence. Therefore they demonstrated no prejudice, and no plain error. U.S. v. Hart, 273 F.3d 363 (3d Cir. 2001).
3rd Circuit holds that court must give notice of intent to rely on evidence from another proceeding. (770) Without giving notice, the district court sentenced defendant based in part on information that it learned during an earlier criminal trial in which defendant was not involved. The information was not contained either in defendant’s PSR or the government’s sentencing memorandum, nor was it brought out through defendant’s testimony at sentencing. The Third Circuit held that before a sentencing court may rely on testimonial or other evidence from an earlier proceeding, it must afford fair notice to both defense counsel and the government that it plans to do so. The court must identify the specific evidence upon which it expects to rely and the purposes for which it intends to consider the evidence, and the notice must be provided sufficiently in advance so as to ensure that counsel for both sides have a realistic opportunity to obtain and review the relevant transcripts and to prepare a response to it. Because the district court here did not take these steps, it erred in sentencing defendant. However, defendant did not show that the error affected his substantial rights. The question was not whether defendant’s sentence would have been different had the court not considered the additional evidence; instead, defendant had to show that the court would have imposed a lesser sentence had defense counsel been given the required notice. Defendant failed to point out any way in which his lawyer could have rebutted or responded to the evidence from the prior proceeding. U.S. v. Reynoso, 254 F.3d 467 (3d Cir. 2001).
3rd Circuit holds that defense was entitled to advance notice of documents to be relied on at sentencing. (770) Defendant’s federal PSR outlined defendant’s criminal history, and provided limited information about his juvenile record. At sentencing, using a state PSR previously prepared in another case, the court outlined every contact defendant had with the criminal justice system since the age of 10, including his history of dismissed juvenile offenses. Based on defendant’s overall history of “violent acts and patent recidivism,” the court then imposed a sentence at the top of the applicable guideline range. The Third Circuit held that the district court violated Rule 32(c)(1) by failing to disclose the state PSR to defendant and the government within a sufficient time prior to sentencing, and did not provide counsel with an opportunity to comment on the contents of the documents prior to pronouncing sentence. However, the error did not affect defendant’s substantial rights so as to warrant plain error relief. Defendant bore the burden of persuasion on the issue of prejudice under Rule 52(b) because he failed to object at sentencing to the Rule 32(c)(1) violation. The state PSR merely supplemented the information in the federal PSR. The information in the federal report alone was sufficient to warrant to harshest sentence available under the guidelines. U.S. v. Nappi, 243 F.3d 758 (3d Cir. 2001).
3rd Circuit says any error in reviewing co-defendants’ PSR was harmless. (770) Defendant argued that the trial court violated his due process rights by taking into account material included in the PSR of other participants in his crimes. He contended that these reports were not provided to him and thus he had no opportunity to respond to the information contained in the reports prior to the court’s decision to impose a three-level managerial role enhancement. However, defendant did not object at sentencing to either the managerial enhancement or to the court’s reliance on the PSRs of his co-defendants. The Third Circuit found no reversible error. First, numerous sections of the defendants’ PSRs were identical, including the description of the offense, the planning of the offense, their statements regarding the offenses, and the victim impact statement. Therefore, any error in reviewing the co-defendants’ PSRs would be harmless because the relevant information was the same in each of them. Moreover, even a cursory review of defendant’s own PSR provided ample support for the enhancement. U.S. v. Simmonds, 235 F.3d 826 (3d Cir. 2000).
3rd Circuit holds that certificates of disposition did not conclusively establish statute of conviction. (770) To prove defendant was a career offender, the government offered two certificates of disposition of the county clerk of a state court, certifying that defendant had two prior convictions for possession of a narcotic with intent to sell. Defendant contended that the convictions were for mere drug possession, and sought to support this claim by introducing the transcript of his plea colloquy. The district court refused to consider the transcript, and sentenced defendant as a career offender. The Third Circuit held that when deciding whether a prior conviction qualifies as a predicate career offender crime, and the accuracy of a certificate of disposition is seriously called into question, the judge should look to the plea colloquy in the state court to resolve the accuracy of the certificate. Certificates of disposition are not judgments of conviction, but handwritten documents prepared by the county clerk. Although the certificates here stated that the “records on file indicate” that defendant’s convictions were for possession with intent to sell, it was not clear what records the clerk relied on in reaching this conclusion, or even whether he read them correctly. Other documents produced by the country clerk made the offense of conviction unclear. Under these circumstances, the certificates of disposition were not conclusive proof of the statute of conviction. In the absence of conclusive proof, a defendant is entitled to rely on certain easily produced court documents, such as the plea colloquy, in order to establish that he was not convicted of a predicate career offender crime. U.S. v. Hernandez, 218 F.3d 272 (3d Cir. 2000).
3rd Circuit approves use of conduct outside statute of limitations. (770) From 1974 until September 1995, defendant cashed 257 Social Security checks issued to her dead father. She was only charged with fraudulently cashing 43 benefit checks, since the other 214 checks were cashed outside the statute of limitations. Nonetheless, the district court considered these 214 checks in determining the total loss. The Third Circuit agreed that conduct outside the statute of limitations may be considered as relevant conduct in determining the appropriate guideline sentence. The court also rejected defendant’s claim that the court’s findings regarding the 214 checks was based on unreliable information. Defendant admitted cashing the 214 checks, but argued that she did not commit fraud because she was cashing the checks for a cousin who she believed was authorized to receive the money. However, defendant could not give an address or date of birth for the alleged cousin, and defendant’s son said he had never heard of any cousin and did not believe his mother. U.S. v. Stephens, 198 F.3d 389 (3d Cir. 1999).
3rd Circuit finds defendant’s statement too ambiguous to rely upon for upward departure. (770) Defendant reported to a DEA agent that he needed money offered to him to transport drugs because “he was several hundred thousand dollars in debt as the result of bank frauds and dealings with Israelis involved in vehicle thefts.” The district court departed upward in part because it found, based on this statement, that defendant had “a history of criminal conduct.” The Third Circuit held that defendant’s statement was “too ambiguous and attenuated” to serve as a basis for an upward departure. It was unclear from the statement whether defendant was the perpetrator or the victim of the frauds recited. Further, the PSR did not contain sufficient detail or other indicia of reliability that would provide an adequate basis for the district court to rely upon it in departing upward. U.S. v. Warren, 186 F.3d 358 (3d Cir. 1999).
3rd Circuit considers uncharged bribes defendant admitted to probation officer. (770) Defendant, an INS employee, accepted bribes in return for INS metal templates, a device that imprints a marking when fingerprints and signatures are affixed to alien registration “green” cards to demonstrate authenticity. He argued that it was improper to increase his offense level under § 2C1.1(b)(1) based on his admissions to the probation department that he had accepted two additional bribes that were not the subject of a charge. The Third Circuit upheld consideration of the uncharged bribes because they involved relevant conduct. The cooperating witness who paid all three bribes was a highly credible witness, and provided the probation department with information concerning his and defendant’s respective roles in each of the three bribes. That information was corroborated by tape recorded conversations and by defendant’s own admissions. Uncharged relevant conduct can be the basis of a sentencing enhancement. The consideration of defendant’s statements to the probation officer did not violate due process. Defendant was not forced to admit the relevant conduct in order to obtain a § 3E1.1 reduction. The guidelines permit a defendant to remain silent about relevant conduct without affecting his ability to obtain a § 3E1.1 reduction. U.S. v. Rudolph, 137 F.3d 173 (3d Cir. 1998).
3rd Circuit uses co-conspirators’ stipulations to attribute drugs to leader of conspiracy. (770) Defendant was convicted of drug conspiracy charges and conducting a continuing criminal enterprise. The district court found that the quantity of drugs for which defendant was responsible could not be discerned from the trial testimony. The best estimate available was the drug quantity stipulations that defendant’s co-conspirators entered after pleading guilty to conspiring with defendant. The Third Circuit held that the district court properly relied on the co-conspirators’ drug quantity stipulations. The district court sentenced defendant to the same quantity of drugs his co-conspirators stipulated to, 20 kilograms of powder cocaine and 250 grams of cocaine base. Defendant was the organizer of the conspiracy. The quantity of drugs that his co-conspirators took responsibility for was a reliable basis for estimating the quantity of drugs attributable to him. U.S. v. Russell, 134 F.3d 171 (3d Cir. 1998).
3rd Circuit relies on testimony from another trial to support role in offense. (770) Defendant pled guilty to drug charges. He argued for the first time on appeal that the district court erred in relying on testimony from another trial to support a § 3B1.1 role enhancement. The Third Circuit found no plain error in the court’s reliance on testimony from a separate proceeding. Although a defendant must be given reasonable opportunity to respond to evidence, defendant’s counsel clearly was not surprised by any reference to the testimony. Defense counsel was actually the one who first mentioned it. Counsel was given ample opportunity after the prosecutor’s response to say anything she wished about that testimony. Moreover, defense counsel had ample opportunity after the sentencing hearing to review the testimony and articulate a basis for believing that a continuance would have helped her prepare further for the testimony. U.S. v. Knobloch, 131 F.3d 366 (3d Cir. 1997).
3rd Circuit relies on defendant’s admissions during plea colloquy to sentence for crack cocaine. (770) At sentencing, the district court found that the substance involved in one count was crack cocaine. Defendant claimed that the lab report might be inaccurate because it inconsistently stated that the substance was “cocaine base” and “a powder.” The Third Circuit found that the district court properly relied on defendant’s admissions during the plea colloquy to determine that the substance was crack cocaine. At the plea hearing, the government represented the substance was crack. When asked by the court if he disagreed with the government’s account, defendant did not deny that the substance was crack. He also said he understood the factual basis for the plea. Admissions to the court by a defendant during a guilty plea colloquy can be relied upon by the court at sentencing. U.S. v. Powell, 113 F.3d 464 (3d Cir. 1997).
3rd Circuit remands where court relied on erroneous assumption to sentence at top of range. (770) The district court sentenced defendant at the top of the applicable guideline range, noting that she had previously been convicted of a drug offense and had not learned from the experience, she was less than candid with the probation officer, and she was not remorseful. In fact, defendant had two prior arrests, but no prior convictions. The Third Circuit held that defendant was entitled to be resentenced based on accurate information as to her prior record. Although the court, looking at defendant’s actual record, might re-impose the same sentence, defendant was entitled to be sentenced on the basis of accurate facts. This was particularly important because the district court stressed that defendant had failed to learn from her prior time served. U.S. v. Tabares, 86 F.3d 326 (3d Cir. 1996).
3rd Circuit holds that hearsay evidence did not meet reliability test. (770) Defendant’s cousin negotiated to buy 10 kilograms of cocaine for $190,000. The cousin borrowed $6,000 from defendant to pay the balance of the purchase price. Defendant drove his cousin to the deal, and the two cousins were arrested. After the arrest, the cousin told an FBI agent that defendant was fully aware of the quantity of drugs involved. However, at sentencing, under oath, the cousin said defendant never knew the amount of cocaine involved. The district court relied on the hearsay statement to hold defendant accountable for over five kilograms of cocaine. The Third Circuit reversed, holding that the hearsay did not meet the “sufficient indicia of reliability” standard. Defendant’s past drug transactions with his cousin involved relatively small amounts of cocaine, and defendant only lent a relatively small amount of money to his cousin. Although the two bags of money were in the car, there was no evidence that defendant had a full view of the bags. Moreover, the cost of buying just under five kilograms was close to $100,000, which also could have taken up two bags. U.S. v. Brothers, 75 F.3d 845 (3d Cir. 1996).
3rd Circuit upholds refusal to admit evidence at sentencing that contradicted agreed facts. (770) Defendants ran a business that repossessed cars on behalf of financial institutions. They participated in a scheme to defraud the banks by submitting false bids on the cars based on falsified condition reports on the repossessed cars. The Third Circuit upheld the district court’s refusal to admit evidence at sentencing tending to show that the condition reports were not falsified, since defendants had admitted this fact at their plea hearing. Contrary to defendants’ contention, there was no ambiguity. Defendants clearly admitted at the plea hearing that the reports were falsified. Although the indictment did not put defendants on notice of the government’s false report contention, that did not adequately explain defendants’ failure to object to that contention at the plea hearing. U.S. v. Dickler, 64 F.3d 818 (3d Cir. 1995).
3rd Circuit says destruction of marijuana did not violate due process. (770) Defendant contended that the district court should have sentenced him for his marijuana offense without considering its weight, since the government denied him an opportunity to inspect or weigh the marijuana plants by destroying them despite his discovery request. The 3rd Circuit held that evidence concerning the marijuana’s weight was reliable. The government presented a certificate from the state Bureau of Standards, Weights and Measures stating that the scale was accurate, and the director of the Bureau certified that the marijuana weighed 23.9 kilograms. Although the government did not retain a representative sample, the DEA complied substantially with the procedure set forth in 28 C.F.R. §50.21 (1992) for the destruction of contraband evidence. The government was cautioned, however, against the routine destruction of evidence material to sentencing. U.S. v. Deaner, 1 F.3d 192 (3rd Cir. 1993).
3rd Circuit upholds reliance on agents’ hearsay testimony. (770) One DEA agent testified at sentencing as to facts elicited from a confidential informant who claimed knowledge of the various defendants and their associates. The agent also testified about amounts and frequency of drug deliveries which had been obtained by another DEA agent who had debriefed two other unidentified informants. An INS agent testified regarding his debriefing of a co-defendant named in the indictment. The 3rd Circuit upheld the consideration of the hearsay and double hearsay. First, the totality of the circumstances described by the agents showed the declarations to be reasonably trustworthy. An agent’s recital of events concerning discussions with a reliable confidential informant, and recollections of a conversation relayed by another federal agent working on the same case, meet the standard of minimum indicia of reliability. Moreover, ample evidence from other witnesses corroborated the hearsay statements. U.S. v. Paulino, 996 F.2d 1541 (3rd Cir. 1993).
3rd Circuit holds that evidence of drug quantity did not have sufficient indicia of reliability. (770) The 3rd Circuit held that the district court’s determination of drug quantity did not have “sufficient indicia of reliability,” given numerous inconsistencies, the fact that the source of most of the critical evidence was an addict-informant with an impaired memory, and only a single conclusory finding as to drug quantity. The informant’s estimate in the PSR (6.8 kilograms) was significantly higher than the estimate he gave at the trial of co-conspirators (2.2 to 2.7 kilograms). The district court did not address the inconsistency or explain why it followed the hearsay estimate in the PSR rather than the lower estimate given under oath. The informant’s testimony contained other inconsistencies as well. The case was remanded for the district court to base its decision on facts that have sufficient indicia of reliability to support a conclusion that they are probably accurate. U.S. v. Miele, 989 F.2d 659 (3rd Cir. 1993).
3rd Circuit upholds reliance on hearsay to determine drug quantity. (770) The 3rd Circuit upheld the district court’s reliance on a pretrial statement by one witness to determine drug quantity. The witness stated that prior to her arrest she and one of the defendants brought between two to four pounds of heroin per month from Los Angeles during the period of April 1986 through September 1987. Based on this statement, the district court attributed 15.5 kilograms of heroin to defendants. This calculation did not affect one defendant’s mandatory life sentence under 21 U.S.C. section 841(b)(1)(A)(i), since the jury found beyond a reasonable doubt that defendant conspired to possess in excess of one kilogram of heroin. The statement was not admitted into evidence at trial and the jury did not rely on it in any way. Although neither defendant had the opportunity to cross-examine the witness about her statement, reliable hearsay is generally admissible. The credibility of the witness was for the district court to determine. U.S. v. McGlory, 968 F.2d 309 (3rd Cir. 1992).
3rd Circuit refuses to reconsider issues decided in first appeal. (770) 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 remands because one witness’s testimony was insufficient to support five kilogram finding. (770) The district court found that defendant’s conspiracy involved more than five kilograms of cocaine. Although the judge presided over the trial and thus had a detailed knowledge of the evidence, the judge made this finding based upon the testimony of a single prosecution witness. The 3rd Circuit remanded, finding that this testimony alone was insufficient to support the five kilogram finding. The only other evidence cited by the judge was the fact that the conspiracy lasted 13 months, but this fact alone also did not support the court’s findings. On remand, there was nothing to prevent the district court from considering pertinent testimony given at a co-defendant’s trial, so long as the testimony met standards of reliability. U.S. v. Reyes, 930 F.2d 310 (3rd Cir. 1991).
3rd Circuit upholds use of hearsay testimony in sentencing defendant for extortion. (770) Defendant attempted to extort $10 million from DuPont by threatening to use stolen proprietary information to compete with them. Defendant contended that it was improper for the court to rely upon hearsay testimony of a competitor that defendant had stolen the proprietary information from DuPont. The 3rd Circuit found that any error involved was harmless, since there was sufficient evidence at trial to show that defendant’s technology was stolen from DuPont. U.S. v. Inigo, 925 F.2d 641 (3rd Cir. 1991).
3rd Circuit subjects hearsay to more strenuous test in case involving extreme departure. (770) Defendant had an applicable guideline range of 27 to 33 months. The district court departed upward on various grounds and imposed a sentence of 30 years. The departure was based in part on the hearsay statement of a confidential informant which linked defendant to terrorist activities. The 3rd Circuit held that in cases involving such extreme departures, the standard for admissibility of evidence used in the sentencing hearing must be increased. The court must examine “the totality of the circumstances, including other corroborating evidence, and determine whether the hearsay declarations are reasonably trustworthy.” In this case, this heightened standard had been met. The informant’s testimony regarding defendant’s presence and activities in a terrorist training camp was verified by other information in the record, including defendant’s possession of materials to make explosive devices in the manner described by the informant. U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990), overruled on other grounds by U.S. Grier, 449 F.3d 558 (3d Cir. 2006).
3rd Circuit holds neither guidelines nor due process were violated by use of hearsay at sentencing. (770) Defendant pled guilty to marijuana trafficking and appealed his sentence, claiming it was error for the district court to rely upon hearsay in determining the amount of marijuana involved. The district court discredited a co-conspirator’s testimony that he had purchased only 800 pounds of marijuana from the defendant, but credited the prior statement that he had purchased 1400 pounds from the defendant. The prior statement was offered not for impeachment purposes, but for the truth of the matter asserted. The 3rd Circuit held that neither the guideline scheme as set out in 18 U.S.C. § 3661, nor the due process clause were violated by the use of such information. Since the defendant was free to dispute the hearsay statement and the statement had sufficient indicia of reliability, reliance on it did not violate due process. U.S. v. Sciarrino, 884 F.2d 95 (3rd Cir. 1989).
3rd Circuit rules issues of credibility at sentencing are solely within the trial court’s power. (770) The Third Circuit held that even if the “beyond a reasonable doubt” standard governs sentencing hearings, this would have no effect upon appellate review of a trial court’s findings of fact, because issues of credibility are reserved for the district court. Thus, it was proper for the district court to believe a government witness that the defendant had engaged in a marijuana transaction of 450 pounds and rely upon it in sentencing. U.S. v. Sciarrino, 884 F.2d 95 (3rd Cir. 1989).
3rd Circuit rules plea agreement binding when indictment contains specific factual allegations. (770) Defendant pled guilty to one count of stealing 122 pieces of mail worth approximately $22,500. At sentencing, he claimed the value of the mail stolen was less, seeking to benefit from a lower offense level. The trial court rejected his attempt to raise a factual issue, ruling that the facts were established by the guilty plea, and the 3rd Circuit agreed. When the plea agreement itself provides for a plea to the facts relevant to sentencing, a separate stipulation of facts is not necessary. Thus, it is proper for the sentencing court to rely on admissions of material facts made during pleas in sentencing defendants. The value of the mail in this case was a material fact because it was very significant in determining both the sentence and the defendant’s willingness to plead. U.S. v. Parker, 874 F.2d 174 (3rd Cir. 1989).
3rd Circuit holds factors warranting departure may include the circumstances of an offense for which the defendant was acquitted. (770) The Third Circuit affirmed a 10-month upward departure from the suggested guidelines range for simple possession of “crack” cocaine. The departure was based upon the quantity (10 grams), purity (90%) and packaging (small plastic bags) of the drug. The Third Circuit held the district court was free to consider the packaging of the drug when determining sentence even though the jury had acquitted the defendant of the distribution count. There was no indication that the Sentencing Commission had intended to preclude consideration of this factor, nor was there any indication that they had considered it in formulating the guidelines. Furthermore, prior case law permitted a sentencing court to consider evidence relating to counts on which a defendant was acquitted. There is nothing to show that the Commission disapproved of this practice. U.S. v. Ryan, 866 F.2d 604 (3rd Cir. 1989).
4th Circuit holds that admission of lab report violated defendant’s confrontation rights. (770) The district court found that defendant had violated the terms of his supervised release by possessing marijuana. The district court relied on a laboratory report prepared by a forensic examiner who did not testify at the hearing. The Fourth Circuit held that the district court erred by denying defendant a chance to cross-examine the forensic examiner. The case was controlled by U.S. v. Doswell, 670 F.3d 526 (4th Cir. 2012), which held that Rule 32.1(b)(2)(C) requires that, prior to admitting hearsay evidence in a revocation hearing, the district court must balance the releasee’s interest in confronting an adverse witness against any proffered good cause for denying such confrontation. The government proffered no explanation for the laboratory expert’s absence. Thus, there was zero showing of good cause. Instead, the district court allowed a police officer to read the laboratory report into evidence because the report was “on official stationery with an official envelope” and was “signed by a forensic examiner from the Commonwealth of Virginia.” The existence of corroborating evidence did not relieve the government’s burden of proffering a sufficient justification for the absence of the witness. The error was not harmless. U.S. v. Ferguson, 752 F.3d 613 (4th Cir. 2014).
4th Circuit upholds reliance on NCIC database to determine fact of prior conviction. (770) Defendant was sentenced as an armed career criminal based in part on a 1971 conviction in the Bronx for second degree assault. The government was unable to locate a formal judgment documenting this conviction. Instead, it relied on a criminal record check obtained from the National Crime Information Center (“NCIC”) database, which listed the 1971 assault among defendant’s convictions. Defendant objected to the use of the NCIC report, noting that the alleged assault took place more than 40 years earlier, that the record check referred to him as “Michael McDowell” rather than by his real name, Ernest James McDowell, Jr., and listed four different and inaccurate birthdays. The Fourth Circuit upheld the court’s reliance on the NCIC report to establish the 1971 conviction. NCIC reports are not categorically unreliable. Defendant answered to the street name “Iron Mike,” and occasionally used the alias “Michael.” The NCIC report included all names and birthdays provided by a defendant upon arrest. An FBI agent who confirmed that the NCIC report linked defendant to the 1971 assault through fingerprint analysis. In addition, the defendant had been convicted of other crimes in the Bronx under the alias “Michael” shortly before 1971. U.S. v. McDowell, 745 F.3d 115 (4th Cir. 2014).
4th Circuit upholds use of multiple hearsay to calculate drug quantity. (770) The district court found defendant responsible for 408.1 grams of crack cocaine, based in part on hearsay statements from witnesses who purchased 369.6 grams of crack from defendant. Defendant argued that information provided by two paid informants, Ready and Latta, via telephone interviews with an ATF agent, was not sufficiently reliable. The ATF agent did not testify at sentencing; instead, a deputy testified regarding the reliability of Latta and Ready. The district court found that Ready’s and Latta’s information was sufficiently reliable to serve as the basis for calculating defendant’s drug quantity. The Fourth Circuit upheld the use of the hearsay information. The deputy’s testimony showed that Latta had first-hand knowledge of the drug quantity attributable to defendant. The fact that Latta and Ready were drug users who cooperated with law enforcement to “work off” pending felony charges did not make their statements inherently unreliable. Here, the deputy testified regarding the women’s previous reliability, explained that he had been able to verify their past information, and stated that their information had been used in obtaining arrests and prosecutions. U.S. v. Crawford, 734 F.3d 339 (4th Cir. 2013).
4th Circuit vacates where court relied on unincorporated statement of probable cause to find crime of violence. (770) Defendant was convicted of firearms charges, and received an enhanced sentence based on the court’s finding that his prior Maryland second-degree assault conviction was a crime of violence. The court relied on facts in an unincorporated “statement of probable cause” prepared by the arresting officer and introduced at sentencing by the government. The Fourth Circuit vacated the sentence, holding that the district court was not permitted to consider the unincorporated statement of probable cause. To consider information in an external document, the document must be expressly incorporated into the charging document. Where an external document is not incorporated, there is no certainty that the defendant necessarily admitted the facts contained in the external document. U.S. v. Donnell, 661 F.3d 890 (4th Cir. 2011).
4th Circuit relies on hearsay from postal inspector to determine number of victims and amount of loss. (770) Defendant ran several businesses over the Internet, selling products to customers but never delivering what they ordered. The PSR determined that the scheme harmed more than 50 people and caused damages in excess of $200,000, relying on information gathered by a postal inspector. The inspector had combed through complaints lodged against defendant, loss reports submitted by entities such as American Express, and defendant’s own electronic records and correspondence. At an evidentiary hearing, the inspector testified about the methods she used to determine these numbers. To give defendant the benefit of any doubt the court reduced the number of victims from more than 50 to more than ten, and the intended loss to $199,999. The Fourth Circuit rejected defendant’s claim that the district court violated his Confrontation Clause rights by relying on the out-of-of-court statements of people who did not testify. The hearsay from the postal inspector was sufficiently reliable to support its use here. U.S. v. Powell, 650 F.3d 388 (4th Cir. 2011).
4th Circuit relies on co-conspirator testimony to support weapon enhancement. (770) Defendant was convicted of drug conspiracy charges. He received a § 2D1.1(b) (1) dangerous weapon enhancement based on the statement of King, a co-conspirator who purchased or received cocaine from defendant in 2005. King stated that defendant “always carried guns” in connection with his drug-trafficking activities. Defendant argued that this statement was not credible because it was uncorroborated and because he had been arrested for and convicted of several drug offenses where a gun was not involved. The Fourth Circuit found no clear error in applying the enhancement. Defendant was a member of the conspiracy from at least 2003 to January 2007, and a reliable co-conspirator who interacted with defendant in the course of that conspiracy related his knowledge that defendant “always carried guns” in connection with his drug-trafficking activity. Defendant did not show that it was clearly improbable that the firearms were connected with the drug conspiracy. U.S. v. Slade, 631 F.3d 185 (4th Cir. 2011).
4th Circuit says record supported finding that incriminating statement was voluntary. (770) About 18 months after defendant was involved in a kidnapping and murder, defendant was questioned by an FBI agent and a local police detective at the barracks where he was then stationed with the U.S. Army. Prior to interrogating him the investigators read to him an Advice of Rights form that informed defendant, in part, of his right to remain silent. Defendant signed the form indicating he understood his right, and then proceeded to answer the investigators’ questions, setting forth his account of the kidnapping and murder in a hand-written statement. Although the government did not introduce the statement at trial, the district court referred to the written statement as part of its explanation for concluding that defendant could be held responsible for the victim’s death. The Fourth Circuit held that the record supported the district court’s conclusion that defendant’s statement was voluntarily made after the civilian authorities informed defendant of his right to remain silent. Although defendant testified that he believed he was ordered to speak to the investigators, the district court concluded that defendant’s testimony was not credible, and its determination was not clearly erroneous. U.S. v. Wilson, 624 F.3d 640 (4th Cir. 2010).
4th Circuit upholds consideration of non-Shepard materials to find prior crimes were separated by intervening arrest. (770) The PSR found that defendant qualified as a career offender because he had two prior North Carolina cocaine convictions. The two offenses had been sentenced on the same day. Under the Guidelines, they were to be counted as a single offense unless it could be shown that the sentences “were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). To prove an intervening arrest, the government produced copies of two bond orders from state magistrate judges, as well as certain records from the state clerk’s office, which showed that defendant had been arrested for the first offense several months before he committed the second offense. Defendant argued that the district court erred by relying on materials other than the sort permitted under Shepard v. U.S., 544 U.S. 13 (2005). The Fourth Circuit disagreed. Defendant’s contention ran afoul of the teachings of Booker and its progeny. Under Rita v. U.S., 551 U.S.338 (2007) and Gall v. U.S., 552 U.S. 38 (2007), sentencing courts are licensed to find a host of facts and to assign weight and relevance to those findings as seems reasonable. U.S. v. Dean, 604 F.3d 169 (4th Cir. 2010).
4th Circuit finds insufficent evidence that prior convictions belonged to defendant. (770) The district court found that defendant was subject to statutorily enhanced life terms on two drug counts, pursuant to 21 U.S.C. § 841(b)(1) (A), because of her prior felony drug convictions in Maryland and Virginia. To prove the convictions, the prosecution introduced (1) a certified copy of a judgment order on the Virginia conviction, and (2) a copy of the criminal docket, charge summary, and complaint on the Maryland conviction. The Fourth Circuit ruled that this evidence was insufficient to establish that defendant had suffered the two prior convictions. The record contained a number of discrepancies with respect to the issue of identity. The names of the defendants used in the supporting documents and in this prosecution were inconsistent. Defendant’s last name was spelled in three different ways, and used two different middle names. The prosecution did not produce other compelling evidence of identity, such as fingerprint records or photographs. Finally, at sentencing, the court failed to ask defendant if she affirmed or denied that she had been previously convicted of the state drug offenses. U.S. v. Kellam, 568 F.3d 125 (4th Cir. 2009).
4th Circuit finds use of threat-assessment report did not violate plea agreement and any error was harmless. (770) After defendant filed a motion for a diminished capacity departure, a law enforcement officer prepared a “threat assessment” report on defendant. The officer received authorization from the prosecutor and defense counsel to interview defendant. After the interview, the government filed a motion seeking an upward departure to “protect the public” from defendant, and attached to the motion a copy of the officer’s threat assessment report. The Fourth Circuit held that the government’s use of the threat-assessment report did not violate the parties’ plea agreement. Although the plea agreement stated that incriminating information defendant provided as a result of his cooperation would not be used against him, the interview conducted here was not to investigate and prosecute others. Any error committed by the district court in considering the report was harmless. The court said it did not consider the report to be significant in fashioning its upward departure, and said that it concluded independently of the report that defendant’s criminal record presented “significant” concern. U.S. v. Seay, 553 F.3d 732 (4th Cir. 2009).
4th Circuit allows court to rely on facts not found by jury to support “other felony” enhancement. (770) Defendant pled guilty to being a felon in possession of a firearm. He argued that a § 2K2.1(b)(5) increase for using the firearm in connection with another felony was improperly based on facts not found by the jury. After Booker, when applying the guidelines in an advisory manner, the district court makes factual findings using the preponderance of the evidence standard. The Fourth Circuit found that the testimony of one witness was sufficient to support the finding that defendant had previously used the firearm in connection with another felony offense. The witness testified that she purchased crack from defendant once and that she saw her friends purchase crack from him about eight or nine times. She further testified that she saw defendant with a gun every time she or her friends purchased crack from him. Defendant offered only his own testimony to rebut this testimony. The district court was entitled to discredit defendant’s testimony based on his prior misrepresentations to the court during his plea hearing. U.S. v. Battle, 499 F.3d 315 (4th Cir. 2007).
4th Circuit holds that error in considering proffer did not affect defendant’s substantial rights. (770) In determining that defendant’s prior state convictions were adult convictions, the sentencing court relied on the probation officer’s proffered testimony that he spoke with authorities in North Carolina who advised him that the 1995 cases against defendant were adult cases. Since such a proffer was not among the evidentiary sources approved by the Supreme Court in Shepard v. U.S., 544 U.S. 13 (2005) for judicial fact-finding on a prior conviction, the district court plainly erred in relying on it to sentence defendant as a career offender. However, the Fourth Circuit ruled that the error was not plain because defendant could not establish that the error prejudiced him by affecting his substantial rights. Even without the proffer, the sentencing court would have found defendant’s 1995 convictions to be adult convictions. The 1995 convictions had to be adult convictions, as the presiding court lacked jurisdiction to entertain juvenile delinquency proceedings. U.S. v. Allen, 446 F.3d 522 (4th Cir. 2006).
4th Circuit holds that use of extraneous documents to make crime of violence finding violated Booker and Shepard. (770) The district court relied on a government memorandum, which attached a copy of the police report and the criminal investigation report, to find that defendant’s prior conviction for breaking and entering was a “crime of violence” under §§ 2K2.1(a)(4) and 4B1.2(a)(2). At issue was whether the “fact of a prior conviction” exception to the Sixth Amendment protection applies to findings of fact regarding the circumstances of a prior conviction, when such findings are used to determine that the conviction is a crime of violence. In Shepard v. U.S., 125 S.Ct. 1254 (2005), a Supreme Court plurality held that the consideration of materials outside the charging documents to rule that a prior offense was a violent felony “raised the concern underlying Jones and Apprendi.” The Fourth Circuit found that the sentencing court’s application of the §§ 2K2.1 and 4B1.2(a) crime of violence enhancement in defendant’s sentencing proceeding was error under Booker and Shepard. Judge Luttig dissented. U.S. v. Washington, 404 F.3d 834 (4th Cir. 2005).
4th Circuit holds that court was not bound by loss finding in co-conspirator’s separate proceeding. (770) Defendant was convicted of ten counts of mail fraud in connection with a bingo operation. He argued that he could not be held liable for a loss exceeding $200,000 because, in separate proceedings involving defendant’s co-conspirators, the government stipulated and the district court found that the loss was no greater than $200,000. Thus, defendant argued that the government should be estopped from attributing to him any loss greater than the amounts previously found by the district court in his co-conspirator’s case. However, defendant was not a party to those cases, and the Fourth Circuit found that the civil doctrine of nonmutual collateral estoppel had no application in criminal sentencing. The district court was free to estimate the loss resulting from the fraud based on the information available to it in this case. U.S. v. Pierce, 400 F.3d 176 (4th Cir. 2005), vacated, U.S. v. Pierce, 409 F.3d 228 (4th Cir. 2005).
4th Circuit upholds use of alleged co-conspirators’ testimony even though defendant was found not guilty of conspiracy. (770) At trial, three co-conspirators each testified regarding defendant’s routine distribution of cocaine and cocaine base, as well as his involvement in certain specific transactions. Based on this testimony, as well as the drugs recovered from defendant’s duffle bag, the district court attributed 1.5 kilograms of crack to defendant. Defendant argued that the court erroneously credited the testimony of his alleged co-conspirators despite the fact that defendant was found not guilty of conspiracy to distribute cocaine base. The Fourth Circuit found no clear error. The district court observed these witnesses during trial and found their testimony regarding defendant’s extensive crack distribution activities to be credible. Additionally, items found during the search of the hotel corroborated the testimony that defendant had been engaged in the distribution of crack well before his arrest. U.S. v. Jones, 356 F.3d 529 (4th Cir. 2004).
4th Circuit upholds drug quantity finding despite discrepancies in witness’s statements. (770) Defendant challenged the district court’s drug quantity finding, noting that there was a discrepancy between the trial testimony of Ward (indicating Ward had only received cocaine from defendant on a few occasions) and Ward’s statements to agents outside of court (which suggested Ward had purchased around 567 grams of cocaine from defendant). Because the sentencing judge only had to find the relevant drug quantities by a preponderance of the evidence, the Fourth Circuit found that the discrepancy in Ward’s testimony was not fatal to the government’s proof. The self contradictions in Ward’s testimony essentially raised a credibility issue – a question of fact that the district court had to resolve at sentencing. The district court’s factual findings regarding the relative credibility of Ward’s two conflicting stories were not clearly erroneous. Neither were the resulting drug quantity determinations. U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002).
4th Circuit upholds consideration of drug addict’s estimate of drug quantity. (770) Defendant challenged the court’s attribution of certain methamphetamine seen in his possession, because a drug-addicted witness’s estimate supplied the only evidence of quantity. The witness testified that he saw defendant with “three or four bags,” that he did not see the bags weighed, that he estimated the bags to weigh “about four pounds, maybe five” based on a third party’s estimate of their financial value, and that defendant gave him pure meth out of one of the bags. The district court used the lower estimate of four pounds, or 1.98 kilograms, and the government otherwise established 96.65 grams of pure meth. Noting that the low end of the witness’s estimate could almost be halved without any effect on defendant’s offense level, the Fourth Circuit saw no error in the district court, on remand, again considering the testimony in question. U.S. v. Benenhaley, 281 F.3d 423 (4th Cir. 2002).
4th Circuit holds that use of information in proffer statement violated agreement. (770) Defendant admitted in his proffer statement to distributing 1200 kilograms of marijuana. The PSR estimated that defendant was responsible over 1600 kilograms. When defendant objected, the government produced a DEA agent who testified regarding the substance of defendant’s proffer statement. Relying in part on the proffer statement, the district court held defendant accountable for more than 1000 kilograms of marijuana. The Fourth Circuit held that the district court’s consideration of defendant’s proffer statement during sentencing violated the terms of his proffer agreement. The agreement permitted the government to use defendant’s statement under limited circumstances: for cross examination if defendant gave testimony at trial “materially different from” the information he gave in his proffer, for prosecuting defendant for perjury, or if defendant breached the proffer agreement. However, defendant never gave any actual or “constructive” testimony at trial. He participated in his defense, but did not take the stand as a witness. Defendant’s objection to the PSR was not inconsistent with his admission in the proffer statement to distributing 1200 kilograms of marijuana. The PSR attributed 400 more kilograms than defendant admitted distributing. In sum, no condition precedent to using the proffer statement was satisfied. U.S. v. Lopez, 219 F.3d 343 (4th Cir. 2000).
4th Circuit says sentencing judge not required to rely on forfeiture verdict to determine drug quantity. (770) Defendant contended that the district court erred by not relying upon the jury’s $1 million forfeiture verdict in calculating the quantity of drugs foreseeable to them for sentencing purposes. The Fourth Circuit disagreed. Under the sentencing guidelines, the district court has an obligation to make independent factual findings regarding relevant conduct for sentencing purposes. In the present case, the judge considered all of the information available to him in making his sentencing determination. “No limitation shall be placed in the information concerning the background, character, or conduct” of a defendant that a court may consider for sentencing purposes. 18 U.S.C. § 3661. The “attempt to impose … forfeiture verdicts as artificial limitations on the district judge’s sentencing discretion turns 18 U.S.C. § 3661 on its head.” U.S. v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part on other grounds, U.S. v. Rhynes, 218 F.3d 310 (4th Cir. 2000) (en banc).
4th Circuit relies on co-conspirator’s hearsay to determine drug quantity. (770) Defendant and his twin brother sold crack from the barbershop where they both worked. At sentencing, a police detective testified that a co-conspirator who sold crack for defendant admitted that during the three and one-half to four weeks he was involved in the conspiracy, he sold two ounces of crack a day for a minimum of four days per week. The detective further testified that the co-conspirator stated that during the time he was involved in the conspiracy, defendant and his brother sold from the barbershop a minimum of one ounce (28.35 grams) of crack per day, five days per week, and a minimum of one additional ounce daily from their apartments. The Fourth Circuit upheld the district court’s reliance on this hearsay testimony to attribute 1871.1 grams of crack to defendant. A co-conspirator’s hearsay statement may be considered by a district court at sentencing, if the district court considers the statement reliable. The district court, after offering defendant a chance to rebut and explain the co-conspirator’s statement, concluded that the statement, as testified to by the police detective, accurately reflected the amount of crack attributable to defendant through the co-conspirator. U.S. v. Randall, 171 F.3d 195 (4th Cir. 1999).
4th Circuit approves reliance on amended lab report prepared at probation officer’s request. (770) Defendant pled guilty to drug charges. He and the government stipulated that his offense involved between 100 and 200 grams of cocaine. However, the probation officer noticed that lab report’s description of the cocaine seized from defendant’s car sounded like cocaine base. He contacted the scientist, who then prepared an amended report stating that the substance included 20.3 grams of cocaine base and 82.7 grams of cocaine hydrochloride. The Fourth Circuit upheld the district court’s reliance on the amended lab report. Defendant did not raise a single concrete challenge to the report, instead raising a host of potential shortfalls that he could not prove. The fact that the report did not indicate whether the cocaine was re-tested or even still existed was not fatal. Defendant did not testify on his own behalf as to whether the substance found in his car contained cocaine base. The probation officer’s investigation in the specific makeup of the cocaine substance found in his car was not improper. He did not cross the line between neutral probation officer and prosecutorial advocate. He simply sought out all available information that would prove relevant to the district court’s sentencing proceeding, which was his job. U.S. v. Washington, 146 F.3d 219 (4th Cir. 1998).
4th Circuit upholds use of co-conspirators’ statements to support enhancements. (770) Defendant argued that a § 2D1.1(b)(1) firearm enhancement and a § 3C1.1 obstruction of justice enhancement were supported by unreliable hearsay statements of his co-conspirators. The Fourth Circuit upheld the use of the co-conspirators’ statements. First, there is no bar to the use of hearsay in sentencing, provided there are sufficient indicia of reliability. Second, the statements of the co-conspirators were not hearsay¾they were properly admitted as non-hearsay under Fed. R. Evid. 801(d)(2)(E) because they were statements “by a coconspirator of a party during the course and in furtherance of the conspiracy.” Finally, defendant’s own statements to a prison inmate confirmed the co-conspirator’s statements. The inmate testified that defendant told him that he went with an associate to kill a potential witness, but that the automatic rifle in their possession jammed. U.S. v. Love, 134 F.3d 595 (4th Cir. 1998).
4th Circuit upholds estimate of amount in crack vial. (770) On March 8th, defendant and an associate were arrested after selling crack to an undercover officer from their car. The crack was carried in a candy vial. In his statement to police immediately after the arrest, defendant confessed that his associate possessed a candy vial “half‑way full of crack” on March 8th, and that he had seen the associate with a full candy vial of crack on February 18th. He stated that the half‑vial contained “probably a couple hundred dollars worth” of crack. The government introduced evidence that a full candy vial could hold about 7.8 grams of crack. The district court held defendant accountable for 9.5 grams (6.25 grams for February 18th and 3.25 for March 8th). The Fourth Circuit affirmed the district court’s reliance on the amount of crack defendant saw in the associate’s candy vial (half full) rather than his more vague statement concerning the dollar value of the drugs involved. U.S. v. Cook, 76 F.3d 596 (4th Cir. 1996).
4th Circuit upholds court’s refusal to qualify expert. (770) Defendant and his older brother kidnapped, raped and assaulted a woman. The district court refused to qualify defendant’s expert, a clinical psychiatrist, who was prepared to testify on issues regarding defendant’s future dangerousness, his relationship with his brother, and his acceptance of responsibility. The court did accept into evidence the psychiatrist’s written evaluation of defendant. The Fourth Circuit held that the district judge did not abuse his discretion in failing to qualify defendant’s expert. The district judge, as the fact finder at defendant’s hearing, was able to determine for himself whether the testimony of an expert would add anything to his view of the facts of the case and to the written report already in his possession. U.S. v. Myers, 66 F.3d 1364 (4th Cir. 1995).
4th Circuit says trial court need not be recused simply because it rejected plea agreement. (770) Defendant’s plea agreement was initially submitted to the court under Rule 11(e)(1)(C). The district court did not accept it, and defendant chose to resubmit it on a non-binding basis. Defendant’s PSR recommended adopting the sentence in the plea agreement. However, the district court, from its involvement in the prosecution of co-conspirators, was aware of additional details of defendant’s case that were not mentioned in the PSR. The court asked for a supplemental report regarding certain additional enhancements. The court ultimately applied several of these enhancements. The Fourth Circuit held that the trial court did not need to be recused simply because it had refused to accept defendant’s plea agreement. The court had every right to reject an agreement submitted under Rule 11(e)(1)(C). Moreover, requesting additional information from a probation officer is not a breach of judicial impartiality. A trial court may supplement the record by looking to extra material such as a defendant’s grand jury testimony. U.S. v. Gordon, 61 F.3d 263 (4th Cir. 1995).
4th Circuit relies on leader’s estimate to determine defendant’s accountability for drugs. (770) Defendant challenged the district court’s finding that at least five kilograms of cocaine base were attributable to him. The 4th Circuit upheld the finding, which was based on the leader’s estimate of the total quantity of crack sold by the ring. Since the leader described defendant at trial as being closest to him within the drug ring, the use of this figure was not erroneous. The leader was the head of the organization and was the person who best knew the amount involved. U.S. v. D’Anjou, 16 F.3d 604 (4th Cir. 1994).
4th Circuit considers as relevant conduct drug sale defendant made after indictment. (770) After defendant’s indictment on drug charges, he was released and sold more drugs to a government informant. This later drug sale was considered relevant conduct at sentencing under § 1B1.3. Defendant argued that the informant violated his 6th Amendment right to counsel by contacting him and purchasing drugs after he had been indicted. The 4th Circuit found no violation, since the evidence related to new criminal activity, and therefore no grounds to exclude the relevant conduct. The post-indictment transaction was clearly relevant conduct — the nature of the offenses were the same and defendant played the same role in both offenses. It is not inconsistent to hold that the post-indictment offense was not “closely related” to the charged offense for 6th Amendment purposes, but constituted the “same course of conduct” for relevant conduct purposes. U.S. v. Kidd, 12 F.3d 30 (4th Cir. 1993).
4th Circuit upholds reliance on testimony not expressly considered in PSR. (770) Defendant argued that the district court improperly relied on the corroborative testimony of two witnesses, taken before sentencing but not explicitly considered in the PSR. Defendant’s own objection to the PSR placed one witness’s testimony in issue, so she could not claim that she was unfairly surprised by the court’s reliance on that testimony at sentencing. Moreover, the witnesses resided with defendant, and were separately charged with drug activity. It was obvious that the available statements of these individuals about defendant’s drug activities might come up at sentencing, even if no objection highlighted the statements beforehand. U.S. v. Choate, 12 F.3d 1318 (4th Cir. 1993).
4th Circuit upholds reliance on informant under the influence of cocaine. (770) Defendant contended that he was sentenced based partially on the testimony of an informant as to what that informant witnessed while under the influence of cocaine. The 4th Circuit found no abuse of discretion. Under 18 U.S.C. section 3661, no limitation shall be placed on the information concerning the background, character and conduct of a defendant which a court may consider at sentencing. There was also no error in the court’s consideration of hearsay accounts of testimony presented at other trials. The trial court may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain. U.S. v. Falesbork, 5 F.3d 715 (4th Cir. 1993).
4th Circuit relies on juvenile record even though state did not seal it or send it to court. (770) Despite repeated requests, the state of Ohio never released copies of defendant’s juvenile record. Instead, a probation officer in Ohio relayed its contents to defendant’s federal probation officer. The 4th Circuit upheld consideration of the juvenile record. There was no due process violation even if Ohio failed to perform a statutory duty to seal the juvenile record or to notify defendant of his right to have it sealed. A mere violation of state law, standing alone, does not violate the constitution. Although due process may be violated at sentencing by the use of inaccurate information, no inaccuracy was shown here. Defendant had a fair opportunity to challenge the accuracy of the information, even though his counsel never received copies of the record. Section 4A1.2(d) does not violate equal protection by discriminating against defendants who live in states that do not seal juvenile records. U.S. v. Inglesi, 988 F.2d 500 (4th Cir. 1993).
4th Circuit upholds estimate despite failure to determine drug sampling’s standard deviation. (770) Defendant was arrested with 85 capsules of heroin in his digestive tract. A DEA chemist testified that he determined the weight of the heroin by weighing a small sample of the capsules, and extrapolating the total weight from that sample. Defendant claimed the estimate was unreliable, since the chemist did not know the standard deviation of the sample he selected. The 4th Circuit rejected defendant’s contention that the guidelines require such scientific or statistical precision in the calculation of drug quantities. Other practices used by federal courts, such as converting money into drug quantity based on the drug’s street value, yield only very rough estimates of quantity. A district court’s finding of quantity is not erroneous if based on evidence possessing sufficient indicia of reliability to support its probable accuracy. The chemist’s testimony met that standard. U.S. v. Uwaeme, 975 F.2d 1016 (4th Cir. 1992).
4th Circuit permits reliance on uncorroborated testimony to support enhancement for firearm. (770) A government informant who sold marijuana to defendant testified that during the transaction, an individual opened his jacket to reveal a gun sticking in the waistband of his pants. The 4th Circuit found that it was permissible for the district court to rely upon this uncorroborated testimony to support the enhancement for possession of a weapon. The type of information that may be considered at sentencing is unlimited. The presentence report advised defendant of this evidence. The testimony was under oath, and defendant had an opportunity to cross-examine the witness and present rebuttal evidence. The 4th Circuit also rejected defendant’s argument that sentencing him on the basis of the firearm violated the 6th Amendment’s notice requirements. The procedure followed at sentencing clearly gave defendant all of his 6th Amendment notice rights. U.S. v. Bowman, 926 F.2d 380 (4th Cir. 1991).
4th Circuit affirms upward departure based on arrest record, breach of restitution agreement, and failure to pay taxes. (770) Defendant had one prior conviction and numerous arrests. In addition, the State’s Attorney’s Office had required defendant to refund money to his customers as a result of defendant’s business practices. Rather than repay the money, defendant moved his office, changed his telephone number, and began operating under a different name. Moreover, defendant did not pay federal income taxes over a three-year period. The 4th Circuit found that this record justified the district court’s departure from criminal history category II to III. The court also rejected defendant’s argument that the upward departure was based upon unreliable information. The district court relied almost entirely upon information contained in the presentence report. Defendant failed to meet his burden of proving that the presentence report was inaccurate. U.S. v. Terry, 916 F.2d 157 (4th Cir. 1990).
4th Circuit holds that acquittal of counterfeiting charge does not preclude offense level enhancement following conviction of dealing with counterfeit obligations. (770) Defendant was convicted of dealing with counterfeit obligations, but the jury acquitted him of the more serious offense of counterfeiting. He argued that it violated the due process clause for the court to enhance his offense level from 9 to 15 according to § 2B5.1(b)(2). The 4th Circuit affirmed the enhancement, holding that merely because the jury acquitted the defendant of the more serious count, it was not improper for the guidelines to consider evidence connected with that count in sentencing. This is especially true given the fact that a lower standard of proof applies at sentencing. “A verdict of acquittal demonstrates only a lack of proof beyond a reasonable doubt; it does not necessarily establish the defendant’s innocence.” Furthermore, the reference to a defendant’s intent in § 1B1.3(a)(4) [relevant conduct] does not mandate proof beyond a reasonable doubt that the defendant possessed the necessary mens rea as required by the count for which he was acquitted when he is sentenced on the count of conviction. U.S. v. Isom, 886 F.2d 736 (4th Cir. 1989).
4th Circuit holds increase in offense level based partly upon uncorroborated hearsay and two dismissed state charges was proper. (770) Defendant’s base offense level was increased by four points under guideline § 3B1.1(a) because there was evidence that he was an “organizer or leader of a criminal activity that .ÿ.ÿ. was otherwise extensive.” He appealed the sentence claiming that this increase was based upon hearsay evidence of an informant which was insufficiently reliable. The 4th Circuit affirmed the sentence. Although guideline § 1B1.4 and 18 U.S.C. § 3661 permit the use of hearsay evidence in determining sentences if it is sufficiently reliable, the court found that the uncorroborated hearsay was of questionable reliability. However, the enhancement was nevertheless proper given other information contained in the record, including two dismissed state charges. U.S. v. Roberts, 881 F.2d 95 (4th Cir. 1989).
5th Circuit reverses reliance on “bare arrest records” in imposing supervised release conditions. (770) Defendant was convicted of failing to register as a sex offender. Other than his original 1992 sexual assault conviction and a 2008 registration conviction, defendant’s PSR disclosed no other convictions. However, it also disclosed several arrests, which the district court expressly referenced in imposing special conditions of supervised release. A federal district court may not rely on “bare arrest records” when sentencing a defendant. An arrest record is “bare” when it refers to the to the mere fact of an arrest, without information about the underlying facts or circumstances. The district court attempted to justify its reliance by distinguishing between “special conditions” of release and a defendant’s “sentence.” The Fifth Circuit found that distinction “illusory,” holding that a court may not rely on bare arrest records when imposing special conditions of supervised release. Supervised release and its conditions are part of a defendant’s sentence. U.S. v. Windless, 719 F.3d 415 (5th Cir. 2013).
5th Circuit upholds reliance on conduct underlying prior arrests. (770) Defendant’s PSR placed him in criminal history category III based on his prior criminal convictions. However, the PSR also noted five prior arrests that resulted in no prosecution. The PSR included information about the underlying facts of those arrests based on the arresting officers’ police reports. For at least some of the arrests, the underlying information was provided by contemporaneous observations by the police officers. In at least two cases, the PSR noted that the charges were dropped because the victims declined to pursue prosecution. Defendant did not object to the PSR prior to sentencing, but argued on appeal that the district court committed procedural error by improperly considering his “bare arrest record.” The Fifth Circuit disagreed. Reliance on prior arrests, without more, is prohibited. But here, defendant did not object to the PSR’s factual recitations of the prior arrests, and those recitations had an adequate evidentiary basis. Accordingly, there was no procedural error. U.S. v. Harris, 702 F.3d 226 (5th Cir. 2012).
5th Circuit upholds reliance on expert testimony and company’s own calculations to determine loss. (770) Defendants, former employees of an energy corporation, were convicted of fraud for falsely reporting natural gas trades in order to manipulate the market. To calculate loss, the district court relied on a government expert’s calculations about the effect of the false reports on two published index prices, and on the company’s own calculations, in its “Basis Summaries,” about its exposure to changes in those index prices. The Fifth Circuit found no error in the court’s loss calculation. Although the editors of the industry publications used some editorial discretion to determine what index price to publish, the published price and the volume-weighted average of the reported trades were identical 80 percent of the time, and there was a strong correlation between the two for the remainder of the trades. The court also properly relied on the Basis Summaries, which were created by the company to determine its exposure to changes in the various index prices. The Basis Summaries’ calculation of the increase in the value of the company’s futures contracts provided a reasonable basis from which to infer the counterparties’ loss. U.S. v. Brooks, 681 F.3d 678 (5th Cir. 2012).
5th Circuit upholds reliance on co-conspirator testimony to establish drug quantities. (770) A jury found defendant responsible for over five kilograms of cocaine and over 1,000 kilograms of marijuana. However, based on the PSR, the sentencing court attributed to defendant 693.14 kilograms of cocaine and 15,235.22 kilograms of marijuana. The Fifth Circuit upheld the court’s drug quantity calculation. The district court may adopt facts contained in the PSR without further inquiry, if the facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence. Defendant did not present any rebuttal evidence, arguing only that because the witnesses against him were his co-conspirators, they were unreliable. However, the district court noted that there were many such witnesses, and their testimony was consistent. Moreover, in order to find defendant responsible even for the lesser amounts for which he was found guilty, the jury had to believe precisely the same testimony from precisely the same co-conspirators that supported the larger drug quantities the PSR attributed to him. U.S. v. Cantu-Ramirez, 669 F.3d 619 (5th Cir. 2012).
5th Circuit says court’s consideration of defendant’s five prior arrests violated due process. (770) Defendant fled from police as they approached him, discarding a loaded semi-automatic pistol as he ran. He pled guilty to being a felon in possession of a firearm. In addition to three prior criminal convictions, defendant’s PSR reported that defendant had been arrested without conviction at least 12 other times since the age of 15. In five of those arrests, defendant was charged with resisting arrest, obstructing an officer, or battery of an officer. At sentencing, the court noted defendant’s record of prior arrests and observed that there were “multiple instances where it is reported that not only did [defendant] not comply [with the arresting officers], but, in fact, [he] resorted to violence against officers who were simply trying to do their job.” The court referenced the arrests yet again when it formally explained the basis for defendant’s sentence, although its principal focus was on the circumstances of the current offense. The Fifth Circuit held that the sentencing court’s consideration of defendant’s five prior arrests violated due process. Since it was unclear whether the district court would have imposed the same sentence absent the arrest, the case was remanded. U.S. v. Johnson, 648 F.3d 273 (5th Cir. 2011).
5th Circuit says court’s reliance on “bare arrest record” did not affect substantial rights. (770) Defendant was convicted of the illegal possession of an assault rifle. He argued for the first time on appeal that the district court erred by taking into account his “bare arrest record” when it imposed a 108-month sentence, which was an upward variance from his advisory sentencing range of 51-63 months. Reviewing for plain error, the Fifth Circuit did not resolve whether it is error for a district court to consider a defendant’s “bare arrest record” in imposing a non-guidelines sentence. Even if it was error to rely on the arrests, the error did not affect defendant’s substantial rights because the court based its variance on defendant’s multiple felony convictions, his persistence in committing crimes despite the benefit of lenient sentencing, the brazen nature of his conviction, and his arrests for similar crimes. This was all supported by testimony presented at trial and at sentencing. Defendant did not demonstrate a reasonable probability that he would have received a lesser sentence if the court had disregarded his arrest record. U.S. v. Williams, 620 F.3d 483 (5th Cir. 2010).
5th Circuit affirms finding of prior removal where defendant agreed to accuracy of PSR. (770) Under 8 U.S.C. § 1326(a), the statutory maximum sentence for illegal reentry with no enhancements is two years in prison. If a defendant illegally reenters after a conviction for an aggravated felony and subsequent removal, the maximum sentence increases to 20 years. 8 U.S.C. § 1326(b)(2). Under U.S. v. Rojas-Luna, 522 F.3d 502 (5th Cir. 2008), the fact of the deportation must be admitted or proven to a jury beyond a reasonable doubt. Defendant was deported in 1998, 2002 and 2005, but only the 2005 deportation occurred after his 2003 aggravated assault conviction. Defendant’s guilty plea admitted only that he had been previously deported, without specifying a time frame. However, the PSR incorporated ICE records, which set forth the details of defendant’s three prior removals in 1998, 2002 and 2005. The Fifth Circuit held that the district court did not plainly err in applying an enhanced sentence based on defendant’s 2003 aggravated assault conviction. Defendant agreed to the accuracy of the PSR, and the facts of his prior removals in the PSR were based on ICE documents which were provided to defendant. U.S. v. Ramirez, 557 F.3d 200 (5th Cir. 2009).
5th Circuit allows court to consider perjurious testimony even if government agency mislead defendant. (770) Defendant was convicted of securities fraud, insider trading, and related charges. The district court applied an obstruction of justice enhancement based on testimony defendant gave to the SEC in which he stated that he had sold stock on September 17, 2001, solely because of the terrorists attacks on September 11. The court found that this statement was perjury, because evidence showed that defendant had tried to sell the stock before the attacks. Defendant argued that the court could not use the testimony because the SEC and the Department of Justice were improperly collaborating, and when an agency deliberately misleads someone whom it is investigating, it taints any consent that the person under investigation provides, requiring suppression of the evidence. The Fifth Circuit found no error. Even if the SEC was deliberately misleading defendant as to the nature of the investigation, a court can consider illegally obtained evidence at sentencing even if that evidence is not admissible at trial. U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009), affirmed in part, vacated in part, Skilling v. U.S., 130 S.Ct. 2896 (2010).
5th Circuit says error in crime of violence increase did not warrant reversal. (770) The district court applied a 16-level crime of violence enhancement under § 2L1.2(a) based on defendant’s conviction under New York Penal Law § 125.15 for attempted manslaughter. The New York statute contains three separate subsections, two which criminalize a broader range of conduct than encompassed by the generic offense of voluntary manslaughter. To determine which subpart formed the basis of defendant’s conviction, the district court relied on the Certificate of Disposition and the original criminal information charging defendant with second degree manslaughter. The Fifth Circuit held that this was error because the COD stated only that defendant pleaded guilty to attempted manslaughter in the second degree—it did not provide the specific subsection under which he was convicted. The criminal information charged a crime other than the one for which defendant was convicted. However, the error did not warrant reversal, because the judge said that even if he were wrong about the Guidelines, he would still impose a 41-month sentence. Thus, defendant’s sentence did not result from an incorrect application of the Guidelines. Judge Garza dissented, arguing that a properly calculated guideline range is a prerequisite to a reasonable sentence. U.S. v. Bonilla, 524 F.3d 647 (5th Cir. 2008).
5th Circuit upholds reliance on New York Certificate of Disposition to establish offense was a crime of violence. (770) Defendant received an enhancement under § 2L1.2 based on the district court’s finding that his prior New York conviction for attempted assault was a crime of violence. One or more prongs of the state statute did not qualify as a crime of violence under a categorical approach. The district court relied on both the Certificate of Disposition and the indictment to find that defendant was convicted under one of the violent prongs of the statute, and thus the conviction was a crime of violence. Because defendant pled guilty to a different offense than that for which he was indicted, the Fifth Circuit found that the court erred in using the indictment to determine under which subsection defendant pled guilty. However, the Certificate of Disposition had sufficient indicia of reliability to support its probably accuracy so that it could be used as evidence of defendant’s prior conviction. Under New York law, a Certificate of Disposition is a judicial record of the offense of which the defendant was convicted and “constitutes presumptive evidence of the facts stated in such certificate.” Although the Certificate is not conclusive, defendant produced no evidence calling into questions the reliability of the Certificate. U.S. v. Neri-Hernandez, 504 F.3d 587 (5th Cir. 2007).
5th Circuit relies on conduct involved in reversed convictions to apply increase for more than one extortion. (770) Defendant, the former police commissioner of a small city in Texas, was convicted of extortion and wire fraud in connection with a traffic ticket scheme. The district court applied a § 2C1.1(b)(1) increase because it found that defendant’s offenses involved more than one extortion “based upon the evidence at trial.” Defendant argued that because the court reversed a number of the convictions as unsupported by the evidence, the enhancement was improper. The Fifth Circuit disagreed. While it had reversed his convictions for several of the extortionate acts, this did not remove those acts from the universe of relevant conduct. The extortions of the non-interstate travelers, which were proven by a preponderance of the evidence, as well as the testimony of a co-conspirator as to the overall scheme to extort, was sufficient to support a finding that defendant participated in more than one extortionate act. The district court did not err in applying this increase. U.S. v. Mann, 493 F.3d 484 (5th Cir. 2007).
5th Circuit holds improper consideration of arrest record did not cause prejudice. (770) Defendant was arrested in possession of a firearm. At the time, he was on probation for a drug conviction 11 days earlier in state court. He received a sentence of 60 months, a departure of 23 months from the top of his guideline range. The court noted defendant’s extensive arrest record, although none were included in his criminal history. Defendant argued, for the first time on appeal, that it was inappropriate for the district court to consider his arrest record. The Fifth Circuit agreed that it was plain error for the court to consider defendant’s arrest record, but found that the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Defendant had a history with guns, and the court was “particularly disturbed” by defendant’s possession of a gun little more than a week after a state court felony conviction. The court engaged in a lengthy discussion of the defendant’s criminal history and the offense characteristics, and it addressed the arguments raised by defense counsel. Finally, the court sought to align defendant’s sentence with similarly situated defendants. Cases cited by defendant involved more egregious errors. U.S. v. Jones, 489 F.3d 679 (5th Cir. 2007).
5th Circuit holds that Crawford does not bar use of hearsay at sentencing. (770) Defendant pled guilty to trafficking in counterfeit goods. The district court relied on hearsay testimony by a police officer about the officer’s conversations with defendant’s co-conspirators and other related parties to determine the number of counterfeit goods for both sentencing and restitution purposes. Defendant argued that because the guidelines calculation of infringement amount involved fact-bound determinations capable of increasing his sentence, the court’s reliance on hearsay testimony violated his confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004). The Fifth Circuit held that there is no Crawford violation when hearsay testimony is used at sentencing rather than at trial. Crawford concerned testimonial hearsay that was introduced at trial, it did not address whether the Sixth Amendment right to confront witnesses applies similarly at sentencing. The panel agreed with sister circuits and unpublished opinions in its own circuit that Crawford does not extend a defendant’s rights under the Confrontation Clause to sentencing proceedings. U.S. v. Beydoun, 469 F.3d 102 (5th Cir. 2006).
5th Circuit upholds finding that stock resulted from criminal actions. (770) Defendant was convicted of tax evasion. He received a two-level enhancement for failure to report income over $10,000 that resulted from criminal activity. The Fifth Circuit affirmed, since defendant failed to rebut the PSR’s finding that the stock was derived from a criminal fraud conspiracy. The provision did not violate the Fifth Amendment right against self-incrimination. The point of the enhancement is to further deterrence, particularly in light of the chronic under-reporting of criminally derived income. The two-level enhancement does not itself force an individual to disclose the income, but merely takes into account the source of income when penalizing non-disclosure. U.S. v. Roush, 466 F.3d 380 (5th Cir. 2006).
5th Circuit holds that court’s allegedly threatening comments to defendant’s girlfriend did not violate defendant’s constitutional rights. (770) At sentencing, when the court offered defendant an opportunity to present evidence in mitigation of his sentence, defendant asserted that he did not assault his girlfriend and stated that she was present in the courtroom and could establish this. Defendant argued that the court violated his constitutional rights by “threatening” his girlfriend with criminal prosecution if she took the stand. The judge had noted that the girlfriend had previously filed a police report against defendant, and then recanted, and if she was filing false reports, that was a crime that might have consequences. The Fifth Circuit found no due process violation. At sentencing, a defendant has a protected due process right to review and object to a PSR, but no absolute right to present witnesses. Defendant had the opportunity to examine the PSR, make objections, and present affidavits to support his claim that he did not assault his girlfriend. Under the circumstances, defendant’s due process rights were appropriately protected, and the court was not required to receive additional witness testimony before sentencing. Moreover, the comments, while presented sternly to defendant, were not threatening and did not constitute plain error. U.S. v. Jackson, 453 F.3d 302 (5th Cir. 2006).
5th Circuit says prior arrests were not sufficiently reliable to support upward departure but still affirms sentence. (770) Defendant pled guilty to possession of child pornography, in violation of 18 U.S.C. §2252(a)(5)(B). The district court departed upward from the guideline range of 46-57 months to the statutory maximum of 120 months citing several factors, including prior arrests that did not result in convictions. The Fifth Circuit held that defendant’s arrest record did not constitute reliable information upon which the court could base an upward criminal history departure. The district court did not find that defendant actually committed the rape of a child in 1993 or committed the sexual batteries which he had been accused of at the time of sentencing. Had there been such a finding supported by evidence, the court could have considered those facts in departing. However, it was not reasonably probable that the defendant would have received a lesser sentence had the district court not considered the prior arrests. The court also found that this was a “very serious offense” and that it needed to protect the public from future offenses by defendant. Defendant was in possession of 4,139 images of child pornography. The guidelines provided for a five-level increase for possessing 600 or more images. The district court could reasonably have concluded that the possession of 4,139 images of child pornography was an aggravating circumstance not adequately considered by the Sentencing Commission, and required the maximum sentence possible. U.S. v. Jones, 444 F.3d 430 (5th Cir. 2006).
5th Circuit holds that court erred in finding that defendant had a prior conviction. (770) The PSR stated that defendant pled guilty in California to forgery in February 1992 and was sentenced to 18 months probation. The report further indicated that the forgery case was dismissed in June 1992. Defendant objected, and denied having a prior conviction. In response, an addendum to the PSR stated that the information concerning the prior conviction was provided by the U.S. Probation Office in California and that supporting documentation had been requested. At sentencing, the probation officer indicated that the criminal history part of defendant’s file was missing. She further stated that she had obtained a mug shot of defendant in the California forgery case and that she had showed it to a fellow probation officer who had met with defendant. According to the probation officer, the colleague had identified the mug shot as defendant. The probation officer indicated that she had offered to show the mug shot to defendant’s attorney, but that never occurred. Finally, the probation officer stated that in her own view, after now seeing defendant in person at the sentencing hearing, the mug shot was defendant. The Fifth Circuit held that the district court erred in finding that defendant had a prior conviction. The only evidence in support of this finding was the unsworn statements of the probation officer. Neither the mug shot, nor any supporting documents evidencing defendant’s conviction, was ever provided to defendant despite her requests for them. This failure to provide any supporting documentation or the mug shot left defendant unable to provide adequate and relevant rebuttal evidence. U.S. v. Floyd, 343 F.3d 363 (5th Cir. 2003).
5th Circuit upholds reliance on adult “rap sheet” to prove juvenile conviction. (770) Defendant argued that the government failed to offer reliable evidence to show that a prior California conviction as a juvenile was valid. The evidence demonstrating the validity of the conviction was its presence in the PSR and the probation officer’s testimony that she gathered information about the conviction from a Texas “rap sheet” on defendant. Defendant did not contend that the California conviction was not valid or legitimate, or that it was materially untrue. He contended instead that the court could not use the juvenile conviction because its only source appeared to have been an unverified adult rap sheet. The Fifth Circuit ruled that defendant failed to carry his burden of showing unreliability. Defendant did not adduce evidence or present support from California penal law to bolster his assertion of unreliability. He produced nothing other than his conclusory contention to cast doubt on the PSR’s findings. U.S. v. Londono, 285 F.3d 348 (5th Cir. 2002).
5th Circuit upholds reliance on hearsay evidence contained in PSR. (770) Defendant argued that his 6th Amendment rights were violated because the district court allowed the use of hearsay evidence of relevant conduct to increase his offense level under the guidelines. Notwithstanding prior holdings approving the use of hearsay evidence at sentencing, defendant contended that the court should reevaluate this position in view of the Supreme Court’s decision in Lilly v. Virginia, 527 U.S. 116 (1999), which found that a defendant’s right to confrontation during a trial was violated by the admission of the untested confession of a co-defendant. The Fifth Circuit declined to extend Lilly to the current case, since Lilly applies to a defendant’s right of confrontation at trial, not sentencing. A defendant’s confrontation rights at sentencing are severely restricted. In determining the relevant facts at sentencing, the district court is not restricted to information that would be admissible at trial. Since defendant’s only challenge to the reliability of the relevant conduct information was a claim of hearsay, there was no error. U.S. v. Ramirez, 271 F.3d 611 (5th Cir. 2001).
5th Circuit upholds reliance on co-conspirator testimony despite multiple inconsistencies. (770) Defendant pled guilty to drug charges stemming from marijuana found in her possession at the time of her arrest. At sentencing, two drug couriers arrested several months later testified that the marijuana they were transporting belonged to defendant, and that she had recruited them to transport the marijuana to Florida. The Fifth Circuit held that the district court properly relied on the couriers’ testimony, despite multiple inconsistencies. “[I]nconsistent testimony alone … is not enough to demonstrate that this testimony … is materially untrue. The inconsistent pattern of their testimony in and of itself does not command that we ignore the district court’s appreciation of their testimony as reliable.” U.S. v. Ocana, 204 F.3d 585 (5th Cir. 2000).
5th Circuit relies on police report to prove drug trafficker could have foreseen death to bystander. (770) Defendant was convicted of RICO conspiracy charges based on his involvement in an extensive drug-trafficking conspiracy. Under § 2E1.1(a)(2), the offense level is based on the underlying racketeering activity. The district court found that the murder of a woman was an underlying racketeering activity. Defendant argued that the murder was not a foreseeable consequence of his criminal activity, but was merely the result of a personal dispute between two co-conspirators. The Fifth Circuit upheld the court’s reliance on a police report to prove that murder was part of defendant’s racketeering activity. According to the police report, the death occurred when a member of a rival drug gang, seeing that he had walked into a trap in a night club parking lot, grabbed the woman and used her as a human shield to protect himself from defendant’s men. The woman sustained 14 bullet wounds. Defendant could have reasonably foreseen the woman’s murder because he and other conspirators had gone to the club to eliminate the rival drug dealer. The police report bore sufficient indicia of reliability to credit it over defendant’s self-serving testimony. U.S. v. Posada-Rios, 158 F.3d 832 (5th Cir. 1998).
5th Circuit relies on relevant conduct even though witness recanted during sentencing. (770) Defendants were convicted of various drug charges. They challenged the district court’s relevant conduct findings, arguing that the information in the PSR was unreliable hearsay because it was based entirely on interviews with FBI agents who relied on what other people had said, and was corroborated only by a cooperating witness who later recanted. The Fifth Circuit held that the relevant conduct was established by a preponderance of the evidence. The FBI agent testified that she was able to verify the cooperating witness’s reliability through other witnesses and her own personal observation. It was very possible that the witness who recanted did so simply to help defendants. The district court did not clearly err in finding that the false recant did not cast significant doubt on the reliability of the information provided to the agents. In addition to the PSR, the court also had testimony from two government witnesses during sentencing, and many witnesses at trial, who testified about drugs in defendants’ possession and their drug dealing activities. U.S. v. Lampton, 158 F.3d 251 (5th Cir. 1998).
5th Circuit agrees conspiracy involved ten kilos of cocaine even though conspirators only had enough money to buy three kilos. (770) Defendant agreed to supply a DEA informant with 10 kilograms of cocaine at a price of $14,500 per kilogram or a total of $140,000. He argued that the court erred in finding that the crime involved 10 kilograms since the only evidence of a 10-kilogram conspiracy came from the informant, who was unreliable. He claimed that the other evidence suggested a much smaller conspiracy, since the conspirators were only carrying $38,863 in cash when they were arrested. The Fifth Circuit held that the district court’s finding that the conspiracy involved 10 kilograms of cocaine was not clearly erroneous. At trial, the informant testified that he understood that their initial transaction was to involve five kilograms of cocaine with a follow-up transaction to involve another five kilograms if everything went well with the first transaction. Even if the transaction involved only five kilograms of cocaine, it would not change the offense level. U.S. v. Millsaps, 157 F.3d 989 (5th Cir. 1998).
5th Circuit upholds reliance on PSR’s drug quantity findings. (770) Defendant argued that the evidence underlying the district court’s finding that he was responsible for 1040.75 pounds of marijuana was unreliable. The Fifth Circuit found that the district court properly adopted the PSR’s drug quantity findings after verifying the evidentiary support for the PSR’s calculation. This support was in the form of sworn trial testimony as to the facts surrounding defendant’s possession of all but 150 pounds of the 1040.75 pounds attributed to defendant by the PSR. The information about the remaining 150 pounds was obtained during post-trial interviews. U.S. v. Hare, 150 F.3d 419 (5th Cir. 1998).
5th Circuit rejects need for physical or scientific analysis of drugs to estimate quantity. (770) Defendant was convicted of distributing and conspiring to distribute cocaine and cocaine base. Based on information from a co-conspirator, the PSR found defendant distributed 1,637 grams of crack. Defendant argued that this was a “highly suspect” account by a convicted drug dealer who could have exaggerated defendant’s involvement to gain more favorable treatment. Moreover, the account was not substantiated by scientific analysis or physical evidence and it described events occurring almost five years before sentencing. The Fifth Circuit rejected defendant’s contention because neither physical nor scientific analysis of the drugs is required to determine drug quantity. Comment 12 to § 2D1.1 authorizes the court to approximate the quantity of drugs when there is no drug seizure. The court’s approximation must simply bear “sufficient indicia of reliability to support its probable accuracy.” Conjectural assertions regarding the co-conspirator’s motives were insufficient to rebut the PSR’s presumptive reliability. U.S. v. Franklin, 148 F.3d 451 (5th Cir. 1998).
5th Circuit upholds reliance on confidential informant who testified in court. (770) Defendants ran a large drug distribution ring. They were convicted of drug-related offenses based on transactions entered into between various defendants and a confidential informant. The district court made drug quantity findings and applied other sentencing enhancements based on the testimony of the informant. Defendants argued that the informant was patently unbelievable and provided unbelievable testimony. The Fifth Circuit upheld the sentencing court’s reliance on the informant’s testimony. The government informant actually testified in court. Therefore, defendants had the opportunity to cross-examine him. In addition, the informant’s testimony about various drug transactions was corroborated by undercover agents. Evidence with sufficient indicia of reliability was before the district court, and its determinations, both as to the quantity of drugs and defendants’ roles in the offenses, were not clearly erroneous. U.S. v. Kelley, 140 F.3d 596 (5th Cir. 1998).
5th Circuit upholds drug quantity estimate from co-conspirator. (770) Defendant was convicted of conspiracy and various substantive offenses arising out of a marijuana importation and distribution enterprise. The district court found him responsible for 19,000 kilograms of marijuana, yielding an offense level of 36 because it was between 10,000 and 30,000 kilograms. The majority of the 19,000 kilogram figure was based on the testimony of a co-conspirator, who, after his arrest, told police that he had driven as many as 80 loads averaging 500 pounds per load. However, at trial, the co-conspirator testified that the loads weighed between 300 and 400 pounds. The Fifth Circuit found any error in the court’s use of the higher number was harmless. Even if the PSR had used the lowest estimate of the weight per load (300 pounds), the total quantity would still have been greater than 10,000 kilograms. Although defendant challenged the veracity and reliability of the testimony, the court resolved the factual disputes by explicitly accepting the factual statements in the PSR. U.S. v. Brito, 136 F.3d 397 (5th Cir. 1998).
5th Circuit considers, at sentencing, confession that was admissible at trial. (770) Defendant, a clerk for an administrative law judge, accepted bribes to help individuals fraudulently obtain Social Security benefits. During an interview with FBI agents, she confessed to fraudulently approving benefits for several people. She argued that the court erred in considering her confession in deciding her sentence. The Fifth Circuit upheld the consideration of the confession because it was admissible and was introduced at trial. Moreover, at sentencing the court may consider relevant information without regard to its admissibility under the rules of evidence, provided the information has sufficient indicia of reliability to support its probable accuracy. U.S. v. Parker, 133 F.3d 322 (5th Cir. 1998).
5th Circuit applies reckless endangerment increase to passenger in fleeing vehicle. (770) Defendant was the passenger in a car that led deputies on a high-speed chase that ended when the car flipped and landed on the hood of the deputies’ patrol car. During the chase, defendant threw plastic bags containing crack cocaine out the window. The Fifth Circuit affirmed a § 3C1.2 reckless endangerment increase, even though defendant was not the driver of the fleeing vehicle. The sheriff’s investigator’s notes revealed that defendant informed the driver that he had drugs on him, and that the driver needed to do something or they were going to jail. The court properly relied on the investigator’s notes. Defendant was aware of the probation office’s reliance on the notes, yet did not present any evidence that would cast doubt on the truthfulness or accuracy of his interview. U.S. v. Lugman, 130 F.3d 113 (5th Cir. 1997).
5th Circuit rules ammunition need not be found to link firearm to drug offense. (770) The district court applied a § 2D1.1(b)(1) enhancement based on a rifle, drugs and a loaded magazine found in defendant’s residence. Defendant argued that a loaded magazine was not found at his residence. The Fifth Circuit held that even if no ammunition was found, it did not make the enhancement inapplicable. The guidelines do not exempt unloaded weapons from § 2D1.1(b)(1. Moreover, defendant’s claim was unsupported by the record. In the addendum to the PSR, the probation officer stated that “according to DEA agents, a loaded magazine was seized from defendant’s house.” The report of a probation officer is generally considered reliable enough to be considered as evidence in making factual determinations under the guidelines. There was a sufficient nexus between the offense and the weapon. Even though defendant claimed the weapon was an inoperable souvenir of his Vietnam War service, the DEA tested the weapon and found it in working order. Moreover, the rifle was not found in a trophy case or gun cabinet, but in the same closet as a duffel bag full of marijuana. U.S. v. Griffith, 118 F.3d 318 (5th Cir. 1997).
5th Circuit relies on corroborated hearsay in PSR over defendant’s unsworn assertions. (770) Defendant ran a telemarketing scheme in which callers were promised loans if they paid an advance fee of $299. No loans were actually made. Defendant argued that the district court erred by relying on hearsay evidence in the PSR to calculate the loss for the nine offices in which defendant was involved. The probation officer’s report contained firsthand knowledge for only three of the nine telemarketing offices. The Fifth Circuit held that the court properly relied on the information in the PSR. Defendant did not provide rebuttal evidence and did not contest the factual assertions in the report with sworn denials. A district court has discretion to adopt a PSR’s facts without more specific inquiry where the defendant presents only general unsupported objections to the report. In addition, a court may rely on hearsay testimony from law enforcement officials at the sentencing hearing. Here, the probation officer either relied on firsthand knowledge or the findings of other law enforcement investigators. Testimony by an employee and a summary of evidence by a state investigator that linked defendant to the various offices corroborated the amounts attributed to defendant in the PSR. U.S. v. Gray, 105 F.3d 956 (5th Cir. 1997).
5th Circuit upholds use of defendants’ journal to calculate loss from loan scam. (770) Defendants operated a loan brokerage service that was essentially a scam. The district court calculated the loss at $1.8 million based upon a journal found at defendants’ home that contained a list of names, dates and numbers that matched the amounts required by defendants to be deposited by loan applicants. Defendants argued that the journal was unreliable, that it contained legitimate transactions that the government failed to investigate, and that the government failed to prove that all of the transactions in the book were related to a common scheme or plan. The Fifth Circuit upheld the use of the journal. Viewed in the light of all the evidence, the journal contained sufficient indicia of reliability to serve as the basis for applying the guidelines. U.S. v. Humphrey, 104 F.3d 65 (5th Cir. 1997).
5th Circuit upholds obstruction increase based on information from plea negotiations. (770) The district court enhanced defendant’s sentence for obstruction of justice based on his failure to produce subpoenaed corporate records and his lies to the grand jury that he had produced all relevant records. Defendant argued that this violated § 1B1.8 and Fed. R. Crim. P. 11(e)(6)(D) because it was during plea negotiations that the government discovered he had not produced certain records and had lied to the grand jury. The Fifth Circuit affirmed the enhancement. Rule 11(e)(6)(D) does not prohibit statements made during plea negotiations from being used during sentencing. At sentencing, the district court may rely upon any evidence of defendant’s credibility that is sufficiently reliable. The district court correctly found defendant’s statements during plea negotiations were reliable. The false grand jury testimony was sufficiently related to the offense of conviction to apply the enhancement. Section 3C1.1 does not require the obstructive conduct to be directly related to the offense of conviction. U.S. v. Upton, 91 F.3d 677 (5th Cir. 1996).
5th Circuit upholds tax loss where there was no evidence that PSR was inaccurate. (770) Defendant was convicted of conspiracy to impede the function of the IRS. He contended that there was no factual basis for the court’s calculation of the tax loss used to determine his offense level. The PSR’s calculation of tax loss was based on information received from IRS investigative agents. The Fifth Circuit held that defendant failed to meet his burden of demonstrating that the information in the PSR was inaccurate. A district court is entitled to rely on information in the PSR if it has some minimum indicia of reliability. The district court reasonably concluded that the information provided by the agents who investigated the case was reliable. Defendant did not point to any evidence that would have met his burden of demonstrating that the information in the PSR was inaccurate. U.S. v. Aubin, 87 F.3d 141 (5th Cir. 1996).
5th Circuit relies on informant’s statement despite contradiction at hearing. (770) Defendant sold two ounces of crack cocaine to a confidential informant. The informant told police that he had been purchasing one to two ounces of cocaine from defendant about twice a month over the five month period before July 27, 1994. Some of these purchases involved cocaine powder. However, at sentencing, the informant testified that he had purchased drugs four or five times during these months, and that the deals ranged from a half-ounce to two ounces. On cross-examination, the informant confirmed his earlier statement that he bought two ounces every two weeks. The Fifth Circuit upheld the court’s reliance on the informant’s initial statement, even though it was contradicted by his direct testimony at sentencing. The court carefully evaluated the informant’s conflicting testimony and took the uncertainty into account when it adopted the PSR. The testimony would have supported as many as seven or eight sales of crack, yet the court assumed only five of the ten transactions involved crack. U.S. v. Davis, 76 F.3d 82 (5th Cir. 1996).
5th Circuit rejects argument that cooperating witness’s testimony was “materially untrue.” (770) Defendants argued that the court erred in relying on quantity calculations in the PSR that were based almost entirely on the unreliable testimony of a co-conspirator turned government informant. They pointed to multiple inconsistencies in the testimony. The Fifth Circuit upheld reliance on the informant’s testimony. Although defendants disputed the reliability of the testimony, they did not demonstrate that the testimony regarding drug quantity was “materially untrue.” The fact that portions of the informant’s testimony were uncorroborated was not fatal, especially since he was subject to extensive cross‑examination at trial. U.S. v. Gaytan, 74 F.3d 545 (5th Cir. 1996).
5th Circuit approves reliance on hearsay where defendant did not provide contrary evidence. (770) Defendant was held accountable for additional drugs based on information given by a cooperating witness. Defendant argued that the testimony was hearsay on hearsay, made under duress, and with the hope or expectation of consideration for the testimony. The Fifth Circuit upheld the use of the hearsay. Defendant failed to present any evidence to support his objection to the witness’s testimony as described in the PSR. The court’s reliance on the testimony was not clearly erroneous. U.S. v. Vital, 68 F.3d 114 (5th Cir. 1995).
5th Circuit affirms drug quantity based on DEA agents’ testimony about informants’ reports. (770) Defendant attended a meeting with co-conspirators at a motel. He testified that he was told to expect a one pound (452.8 grams) delivery of methamphetamine, but the bag was short when he received it and he left the motel with only 10 ounces (283 grams). A DEA agent testified that he had three informants in the motel room who each reported to him the amount of drugs delivered. One reported that there were 566 grams, and the other two reported that there was one pound. The Fifth Circuit upheld the court’s decision to credit the DEA agent’s testimony and hold defendant accountable for 452 grams. Faced with conflicting reports of the amount of drugs involved, the district court was free to make a credibility choice. U.S. v. Edwards, 65 F.3d 430 (5th Cir. 1995).
5th Circuit upholds consideration of evidence from trial of co-conspirators. (770) Defendant challenged the district court’s consideration of evidence from the previous trial of his co-conspirators. The Fifth Circuit found no impropriety. The district court only agreed to “divorce” the trials on the merits, and did not agree not to consider the evidence for sentencing purposes. Further, at sentencing, defendant did not object to the court’s observations concerning the elderly victims who testified at his co-conspirators’ trial. To resolve a dispute at sentencing, the district court may consider non-admissible, “relevant information” that has sufficient indicia of reliability. Testimony under oath observed by the district court would qualify. Although the court in U.S. v. Smith, 13 F.3d 860 (5th Cir. 1994) found it improper to consider matters in a co-defendant’s PSR, the concern was based on defendant’s lack of notice. Here, once the court reported its observations of the elderly witnesses to defendant at sentencing, defendant could have attempted to rebut the court’s impressions, or at least asked for some time to do so. U.S. v. Leonard, 61 F.3d 1181 (5th Cir. 1995).
5th Circuit says evidence supported finding that defendant intimidated witnesses. (770) The district court enhanced defendant’s sentence for obstruction of justice because defendant attempted to intimidate several witnesses and may have been involved in a murder. The Fifth Circuit found that there was sufficient evidence to support the § 3C1.1 enhancement, even without testimony that the district court stated that it would disregard. An IRS agent testified that at least three government witnesses made allegations that defendant had threatened or intimidated them regarding their testimony. Uncorroborated hearsay evidence may be considered at sentencing if sufficiently reliable. U.S. v. West, 58 F.3d 133 (5th Cir. 1995).
5th Circuit requires opportunity to respond to outside information in retroactivity motion. (770) Defendant sought a sentence reduction under 18 U.S.C. § 3582(c)(2) based on a recent guideline amendment. In response, the government argued that his sentence should be based in part on the size and capacity of the drug laboratory. In support, it submitted expert testimony from a sentence reduction hearing for one of defendant’s co-conspirators. Finding the testimony “credible,” the district court denied defendant’s motion, finding his 300-month sentence appropriate under either version of the guidelines. The 5th Circuit held that in deciding whether to resentence a prisoner under § 3582(c), a court may consider testimony from other proceedings; however, defendant must have notice and an opportunity to respond. Here, although defendant was served with a copy of the testimony, he was never notified that the court intended to rely on it, nor was he told to respond. Under these circumstances, defendant did not have an adequate opportunity to respond to the government’s proffered testimony. U.S. v. Townsend, 55 F.3d 168 (5th Cir. 1995).
5th Circuit permits consideration of telephone log not disclosed by prosecution until sentencing hearing. (770) Defendant argued that his sentence should be reversed because the district court considered a log of incriminating telephone calls that the government did not disclose until defendant’s sentencing hearing. The Fifth Circuit held that the admission of the log was not reversible error. At sentencing, a district court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided the information has sufficient indicia of reliability to support its probable accuracy. U.S. v. Scott, 48 F.3d 1389 (5th Cir. 1995).
5th Circuit holds that drug quantity figure in PSR was reliable. (770) Defendant argued that the information relied on by the district court to hold him accountable for 285 kilograms of cocaine was unreliable. He argued that the testimony by the government witness was uncorroborated, and that the witness had an incentive to lie to shorten his own sentence. The Fifth Circuit held that the 285 kilogram figure, taken from the PSR, was sufficiently corroborated and possessed sufficient indicia of reliability. Generally, PSRs are presumed reliable because probation officers use various methods to verify their information. Here, the probation officer examined the witness’s statements under oath at a previous trial. His statement to agents that he delivered about 285 kilograms of cocaine to the conspiracy was corroborated by his sworn testimony in an earlier case that they delivered between 300 and 500 kilograms of cocaine to organizations in the area. Further, the district judge heard the witness’s testimony at trial and was able to make an assessment of the witness’s demeanor and credibility. U.S. v. Morris, 46 F.3d 410 (5th Cir. 1995).
5th Circuit upholds use of exhibits of debriefings of government witness 14 months before trial. (770) Defendant objected to the government’s introduction at the sentencing hearing of two exhibits that detailed debriefings of a government trial witness about 14 months before trial. The Fifth Circuit rejected defendant’s claim that the use of this information violated his confrontation and due process rights. Defendant never asked the court for continuance of the proceedings nor did he request that the witness, the probation officer, or the interviewing agents testify at the sentencing hearing. A court may rely on evidence not admissible at trial. U.S. v. Morris, 46 F.3d 410 (5th Cir. 1995).
5th Circuit upholds mandatory minimum based on PSR and defendant’s failure to object. (770) The PSR linked defendant directly to the sale of 0.632 grams of heroin, and concluded that she was subject to a mandatory minimum of 10 years because other members of the conspiracy sold well in excess of 100 grams of heroin. Although defendant filed an objection to the PSR relating to her criminal history, she did not object to the 10-year statutory minimum. The Fifth Circuit found that the facts recited in the PSR, and defendant’s lack of objection to the 10-year minimum, provided a sufficient basis for the district court’s conclusion that defendant’s offense involved at least 100 grams of heroin. Moreover, there was not plain error, because even if defendant’s offense had only involved .632 grams of heroin, she would have been subject to a maximum sentence of 30 years, and her 10-year sentence was well below this. U.S. v. Ruiz, 43 F.3d 985 (5th Cir. 1995), overruled on other grounds by U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000).
5th Circuit upholds refusal to allow co-defendant testimony at sentencing. (770) Defendant asked that four of his co-defendants be permitted to testify at his sentencing hearing. The 5th Circuit upheld the district court’s refusal to allow three of them to testify. One co-defendant was incompetent to stand trial and was being deported. The other two had already been sentenced and were in transit to their respective places of incarceration. The district court found that the requested testimony would not sufficiently rebut the facts within the presentence report, the testimony at trial, and defendant’s own admissions. On these facts, the district court did not abuse its discretion in denying defendant the opportunity to present the requested testimony. U.S. v. Narvaez, 38 F.3d 162 (5th Cir. 1994).
5th Circuit relies on co-conspirator’s out-of-court statement to calculate drug quantity. (770) Defendants were involved in a marijuana distribution conspiracy. The 5th Circuit upheld the district court’s determination that defendants were responsible for 5496 pounds of marijuana. Defendants did not explain why the information relied on by the probation officer and the district court was unreliable. Police seized 2400 pounds of marijuana from trucks. The remaining 3000 pounds was based on an interview conducted with one of the drivers after his arrest. The driver told a DEA agent that he had made three successful shipments of over 1000 pounds of marijuana each, before he was arrested during the fourth shipment. U.S. v. Bermea, 30 F.3d 1539 (5th Cir. 1994).
5th Circuit holds that indictment alone may not be considered as evidence at sentencing. (770) The 5th Circuit held that the district court erred in considering the indictment as evidence in the sentencing calculus. An indictment is merely a charge and does not constitute evidence of guilt. While evidence of illegal activity charged in counts other than the counts of conviction may be considered at sentencing, the indictment standing alone may not be considered. The error here was harmless because the district court considered the indictment solely as reflecting that the drug sale for which defendant was convicted was part of a larger conspiracy. That link was established by other data. U.S. v. Williams, 22 F.3d 580 (5th Cir. 1994).
5th Circuit says sentencing court may consider information outside indictment and plea. (770) Defendant was convicted of receiving child pornography and received an enhancement under §2G2.2(b)(1) because the material involved pre-pubescent boys and girls. He argued that the sentencing court could only consider facts alleged in the indictment and stipulated in the plea, which in his case, provided no suggestions of the ages of the subjects. The 5th Circuit rejected defendant’s proposed limitation on the information a sentence court may consider. Under §6A1.3 a court may consider relevant information without regard to its admissibility if the court is satisfied with its reliability. The sentencing court was entitled to consider the information in the PSR. U.S. v. Schmeltzer, 20 F.3d 610 (5th Cir. 1994).
5th Circuit denies reduction based on hearsay testimony that defendant arranged drug deal. (770) The district court denied defendant a reduction for acceptance of responsibility. The denial was based on a police officer’s testimony that while out on bond awaiting sentencing, defendant arranged a meeting between a prospective buyer and seller and marijuana. Defendant challenged this on the grounds that the officer had no personal knowledge of her alleged involvement in the transaction because her information was based solely on information from a confidential informant. The 5th Circuit found no error in relying on the officer’s testimony. A district court may rely on uncorroborated hearsay testimony in making factual findings as long as the hearsay evidence carries sufficient indicia of reliability. The officer’s testimony carried sufficient indicia of reliability. U.S. v. Golden, 17 F.3d 735 (5th Cir. 1994).
5th Circuit holds that defendant waived right to challenge consideration of ex parte information. (770) The government submitted ex parte to the district court the letters upon which its Departure Committee relied when deciding not to file a section 5K1.1 departure motion. The 5th Circuit held that defendant waived any right to review the letters when he failed to petition the district court for access to the letters prior to sentencing. Defendant did not ask the court to order production of the letters until after he had been sentenced. U.S. v. Wilder, 15 F.3d 1292 (5th Cir. 1994).
5th Circuit says co-conspirator’s PSR may not used against defendant. (770) Defendant was held accountable at sentencing for additional crack found in the house from which she sold crack, even though the crack belonged to another drug seller. The 5th Circuit held that the contents of the co-conspirator’s PSR, on the basis of which the court found a joint enterprise between the co-conspirator and the other sellers, could not be used against defendant. Federal Rule of Criminal Procedure 32 allows a defendant the opportunity to see the factual allegations in his own presentence report, but defendant presumably was not permitted to see or to respond to the co-conspirator’s presentence report. Therefore, it would be improper for the sentencing court to consider information about defendant from the co-conspirator’s PSR without at least giving defendant the opportunity to see it and contest its contents. U.S. v. Smith, 13 F.3d 860 (5th Cir. 1994).
5th Circuit upholds reliance on hearsay in determining criminal history. (770) Defendant argued that the district court improperly considered hearsay evidence, supplied by a government agent, that defendant was involved in narcotics activity while on probation from a previous conviction. The 5th Circuit upheld the district court’s reliance on the hearsay testimony to determine defendant’s criminal history score. Sworn testimony by a government agent at a sentencing hearing generally bears sufficient indicia of reliability to be considered by the trial judge at sentencing. Merely because the agent’s testimony was based on information obtained from one of defendant’s co-conspirators was not sufficient to bar the court from considering the testimony. U.S. v. Thomas, 12 F.3d 1350 (5th Cir. 1994).
5th Circuit upholds use of FTIR to prove substance was cocaine base. (770) The arresting officer testified that, based on his personal knowledge, the substance involved in defendant’s transaction was cocaine base. A forensic scientist testified that the substance was cocaine base, based on tests conducted with a machine called a Fourier Transform Infrared Spectrophotometer (FTIR). The 5th Circuit upheld reliance on this evidence to conclude that the substance in question was cocaine base. The government’s failure to show that the FTIR was sufficiently established in the scientific community to meet the Frye test was not fatal. The standard governing admissibility at sentencing is substantially lower than that governing admissibility at trial. The reliability of the test was sufficiently established by testimony that the machine was tested and calibrated on a daily basis using reference material provided by the machine’s manufacturer. U.S. v. McCaskey, 9 F.3d 368 (5th Cir. 1993).
5th Circuit upholds reliance on DEA agent’s opinion about source of seized cocaine. (770) The 5th Circuit upheld the district court’s reliance on the opinion of a DEA agent to hold defendant responsible for unadjudicated offenses. The PSR stated that, based on the DEA’s investigation, the agent was of the opinion that the seized cocaine was part of a 750-kilogram shipment from Colombia that defendant received. The agent testified at trial, based on his 20 years of experience with the DEA, including being stationed in Bogota, Colombia, for five years, that the seized cocaine was 94 percent pure, industrial strength, and came straight from the laboratory. He also opined that the source was the Medillin Cartel in Colombia. The DEA agent’s testimony was sufficiently reliable to support its probable accuracy. U.S. v. Montoya-Ortiz, 7 F.3d 1171 (5th Cir. 1993).
5th Circuit upholds use of suppressed evidence to support firearm enhancement. (770) The 5th Circuit upheld an enhancement for possession of a firearm during a drug trafficking offense under section 2D1.1(b), even though the firearm was suppressed at trial. Under relevant caselaw, evidence suppressed at trial for violation of the 4th Amendment may later be considered in determining a defendant’s sentence under the guidelines. Defendant did not contend that there was insufficient indicia of reliability to support the probable accuracy of the evidence regarding the seized weapon. U.S. v. Montoya-Ortiz, 7 F.3d 1171 (5th Cir. 1993).
5th Circuit upholds reliance on confidential informant’s testimony even though some of it was erroneous. (770) The district court based the drug quantity applicable to defendant on the out-of-court declarations of unidentified informants. The 5th Circuit upheld reliance upon such testimony, even though a portion of it was erroneous. Defendant established that it was not possible for two of the informants to have seen her with drugs on the dates reported in 1988 and 1989 because she was incarcerated on those dates. However, this discrepancy did not impact directly on the report of approximately 45 ounces that one informant reported that defendant sold in 1990. In fact, defendant’s own version of the facts corroborated that most of her involvement occurred during this period. In addition, the extensive government investigation in this case corroborated many other details. Sufficient indicia of reliability accompanied the informants’ reports that the district court was justified in relying on them to determine drug quantity without corroboration of the specific amounts alleged. U.S. v. Rogers, 1 F.3d 341 (5th Cir. 1993).
5th Circuit holds presentence report’s recitation of prosecutor’s conclusions did not support enhancement. (770) The PSR recommended a leadership enhancement based on the probation officer’s discussions with the DEA and the prosecutor. Defendant objected. At sentencing, although the government presented no additional evidence, the district court relied on the PSR to impose the enhancement. The 5th Circuit remanded. Although a PSR generally bears sufficient indicia of reliability to be considered as evidence by the trial judge in making factual determinations under the guidelines, in this case, the PSR lent no support for the factual determinations about defendant’s alleged leadership role. The PSR merely recited the conclusions of the DEA and prosecutor. U.S. v. Elwood, 999 F.2d 814 (5th Cir. 1993).
5th Circuit finds that leadership enhancement was based on reliable information. (770) The 5th Circuit rejected defendant’s claim that the information in the PSR about his leadership role was based on unsubstantiated claims. The information was based on statements from confidential informants and cooperating defendants. The court also rejected defendant’s claim that the enhancement was improper since his “leadership conduct” occurred before the time frame of the conspiracy. A defendant’s role in the offense is determined on the basis of all relevant conduct, and not solely on the basis of elements and acts cited in the count of conviction. The district court heard testimony specifically identifying defendant’s role as a leader and supervisor in the overall cocaine conspiracy. U.S. v. Vaquero, 997 F.2d 78 (5th Cir. 1993).
5th Circuit upholds leadership enhancement where cocaine was exact amount promised agents. (770) Defendant alleged that his co-conspirator lied to the probation officer when stating that defendant was his cocaine source, and that this lie was used to impose a leadership enhancement under section 3B1.1. The 5th Circuit found there was sufficient evidence supporting the co-conspirator’s statement and the enhancement. Eight ounces of cocaine were seized from defendant’s car–the exact amount that the co-conspirator had told agents he would retrieve from his source. Moreover, the location of defendant and his car were consistent with the co-conspirator’s representations as to the location of his source. Moreover, a bag in defendant’s car contained records written in defendant’s handwriting detailing substantial drug transactions. U.S. v. Santiago, 993 F.2d 504 (5th Cir. 1993).
5th Circuit finds drug estimate was based on sufficiently reliable information. (770) Defendant challenged the district court’s determination that he was responsible for distributing between 500 to 2000 grams of amphetamine. He claimed that a confidential informant was not credible because the district court discounted his statement that on one occasion, defendant possessed a firearm in a briefcase. The 5th Circuit affirmed the drug estimate. The investigating officer testified that several confidential informants with good histories of reliability had linked defendant and his wife to purchases of multi-ounce quantities of speed from one co-defendant and regular distributions to others in various quantities. Two searches of defendant’s apartment confirmed the presence of drug-related paraphernalia that was open and obvious. The district court rejected the gun enhancement based on the informant’s testimony only because the testimony did not relate to a specific time, was apparently a couple of years old, and was not corroborated by any other statements in the PSR. U.S. v. Windham, 991 F.2d 181 (5th Cir. 1993).
5th Circuit finds testimony was specific enough to determine drug quantity. (770) The 5th Circuit affirmed that a witness’s testimony was specific enough to support the determination that 16.9 kilograms of cocaine base were involved in defendants’ conspiracy. The witness testified that beginning in 1988 or 1989 he bought and cooked and sold cocaine with defendants. He had extensive first-hand knowledge of the suppliers, the times, locations and amounts of drugs involved in every phase of the distribution business. The testimony clearly established that the drug transactions occurred within the time frame set out in the indictment for the conspiracy. The testimony also established, within a specific range, the amount of drugs involved in the transactions. U.S. v. Buckhalter, 986 F.2d 875 (5th Cir. 1993).
5th Circuit upholds reliance upon PSR where defendant failed to present rebuttal evidence. (770) Over defendant’s objection, the district court relied upon the drug quantity used in his presentence report. The 5th Circuit affirmed the reliance upon the presentence report, since defendant failed to present evidence to rebut the information underlying the report’s calculations. Presentence reports generally bear indicia of reliability sufficient to permit reliance on them at sentencing, and this case, involving a report based on the results of a DEA investigation, was no exception. A defendant challenging information presented at sentencing bears the burden of demonstrating its untruth, inaccuracy, or unreliability. In the absence of rebuttal evidence from defendant, the court correctly relied upon the PSR in determining drug quantity. U.S. v. Gracia, 983 F.2d 625 (5th Cir. 1993).
5th Circuit affirms reliance on information from confidential informants. (770) Defendants contended that the court erred in relying on uncorroborated double and triple hearsay statements from confidential informants. The 5th Circuit rejected the argument. Two officers testified about their lengthy investigation of defendants, and the informants’ statements. They vouched for the reliability of the informants, stating that each had been instrumental in obtaining convictions in the past, and that the informants reported drug dealing on the part of all three defendants in conjunction with one another. Moreover, the officers corroborated the informants’ statements with evidence obtained from their own investigations. The court gave each defendant the opportunity to present rebuttal evidence, but only one tangentially attempted to rebut the officers’ testimony. The district court carefully considered all of this information, and taking into account uncertainty and the possibility of exaggeration, found defendants responsible for only half of the amount indicated by the presentence report. U.S. v. Young, 981 F.2d 180 (5th Cir. 1992).
5th Circuit upholds organizer enhancement based on co-conspirators’ inadmissible confessions. (770) Six people arrested by border patrol agents confessed that they had been hired by defendants to transport marijuana across the border. Although these confessions were inadmissible at trial, they were used at defendants’ sentencing to impose a leadership enhancement under section 3B1.1(c). The 5th Circuit affirmed the reliance upon the inadmissible confessions. Evidence that is inadmissible at trial may be considered in a sentencing hearing. The confessions had sufficient indicia of reliability, since they corroborated each other. Additionally, defendants rested separately from the other group of co-conspirators in the holding cell, dressed differently from the other group, and responded differently to police questioning. U.S. v. Rojas-Martinez, 968 F.2d 415 (5th Cir. 1992).
5th Circuit upholds estimate where chemicals and their containers were destroyed. (770) DEA agents who searched defendants’ methamphetamine laboratory destroyed the chemical mixtures and their containers, except for retained samples, but took photographs of the mixtures and their containers before destruction. Although the agents’ initial estimate was that the laboratory contained 4.5 kilograms of the methamphetamine mixture, the 5th Circuit affirmed the determination that the laboratory contained 17.5 kilograms. The original estimate was not based on accurate measurements made at the scene, but was a conservative guess. Before the trial began, a DEA agent obtained and measured the capacity of a standard Coke canister of the kind that had been destroyed. Also, he reworked his estimate of the volume of the cake pan which had been destroyed based on measurements of the pan made at the time of the search. Based upon these calculations, a DEA chemist testified that the methamphetamine mixture totaled 17.5 kilograms. U.S. v. Sherrod, 964 F.2d 1501 (5th Cir. 1992).
5th Circuit upholds reliance on uncertified reports to determine nature of prior burglaries. (770) Defendant argued that his prior burglary convictions should not have been classified as crimes of violence because burglary that is not of a dwelling is not a crime of violence under section 4B1.2. The 5th Circuit affirmed the district court’s reliance on uncertified reports to determine that defendant’s prior offenses were for burglary of a dwelling. The probation officer who prepared defendant’s presentence report could not tell from the certified and exemplified copies of the convictions what type of burglary defendant had committed, so he obtained copies of the state presentence reports. These documents, which were not certified, indicated that the six offenses were burglaries of a dwelling. The reports, prepared by state correctional officers, were sufficiently reliable to sustain the application of section 4B1.1. U.S. v. McDonald, 964 F.2d 390 (5th Cir. 1992).
5th Circuit affirms decision to credit co-conspirator’s testimony against testimony of defendant’s wife and daughter. (770) Defendant contended the district court erred in finding that he had assisted in the transportation of three loads of marijuana when both his wife and daughter testified that no marijuana was stored in the shed behind his house and the wife testified that she did not believe that her husband dealt in marijuana. The 5th Circuit affirmed, finding the district court could properly reject the testimony of defendant’s wife and daughter on the basis of their demeanor and contradictions in their testimony. The court was entitled to disbelieve defendant’s witnesses and credit the trial testimony and information in the presentence report. At trial, a co-conspirator testified that another co-conspirator told him that defendant was a participant in one of the loads. Although this co-conspirator was testifying pursuant to a plea agreement and thus may have had an incentive to testify against defendant, at best this created a credibility question for the district court to resolve. i.U.S. v. Ramirez, 963 F.2d 693 (5th Cir. 1992).
5th Circuit rejects organizer enhancement based solely upon unsworn statement by Assistant U.S. Attorney. (770) The 5th Circuit reversed the district court’s determination that defendant was an organizer or supervisor of a stolen vehicle conspiracy because it was based solely upon an unsworn assertion by an Assistant United States Attorney. The unsworn assertions of the government’s attorney do not provide, by themselves, a sufficiently reliable basis on which to sentence a defendant. U.S. v. Patterson, 962 F.2d 409 (5th Cir. 1992).
5th Circuit upholds reliance upon hearsay. (770) The district court imposed an enhancement under section 2Q1.2(b)(1)(A) for a repetitive discharge of hazardous waste. The enhancement was based upon testimony by an EPA agent who observed defendant’s illegal dumping activities and conducted interviews with 12 of defendant’s drivers. Several of the drivers told the agent that it was accepted company policy to illegally dump hazardous and industrial waste into the sewer system, and that defendant had specifically advised them to dump waste water into the sewers. The district court did not credit defendant’s testimony to the contrary because it was inconsistent and conflicted with the agent’s testimony and information contained in the presentence report of one of his co-defendant’s. The 5th Circuit found that the district court’s reliance on the agent’s hearsay did not violate defendant’s 6th Amendment rights. With respect to the consideration of information in a co-defendant’s presentence report, the appellate court noted that when a court intends to rely on information not contained in a defendant’s presentence report, Fed. R. Crim. P. 32 requires that defense counsel be given an opportunity to address the court on the issue. U.S. v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992).
5th Circuit affirms reliance on confidential information at sentencing. (770) At sentencing the trial judge stated that he had received confidential information from a reliable and credible source that defendant had a history of substance abuse. The 5th Circuit upheld the district court’s consideration of this information, and rejected defendant’s contention that he had not been given the opportunity to comment upon or address the court about this confidential information. Defendant’s counsel did not object to the introduction of the information, nor did he request a side bar, challenge the accuracy of the information, or request an in camera conference. Rule 32 does not require that the trial court disclose the name of a confidential source contained in the presentence report, but the court is required to state a summary of the factual information upon which it relies. Once the facts are disclosed to defendant and his counsel, Rule 32 places the burden on the defendant to comment on the factual accuracy contained in the disclosure. U.S. v. Moore, 958 F.2d 646 (5th Cir. 1992).
5th Circuit affirms that defendants were involved in negotiations to purchase 1500 pounds of marijuana. (770) The 5th Circuit affirmed that the evidence was sufficient to conclude that defendants were involved in negotiations to purchase 1500 pounds of marijuana. The presentence report made this conclusion based upon the probation officer’s conversation with a DEA agent who participated in the reverse sting. The DEA agent met with a co-defendant, acting as a middleman for defendants, to discuss the potential purchase of the 1500 pounds. The defendants participated in conversations concerning the purchase of the 1500 pounds. That defendants denied the facts in the presentence report did not make the report unreliable. The district court could chose to believe the unsworn report of the DEA agent, as related to the probation officer who prepared the presentence report, over the unsworn and unsupported assertions of the defendants. Moreover, the presentence report was not the only evidence in the record to support the district court’s finding. The agent stated in a sworn criminal complaint and testified at defendants’ detention hearing that defendants told the agent that they would purchase 1500 pounds. U.S. v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).
5th Circuit affirms reliance on witness who defendant claimed was incredible. (770) Defendant received a pre-guidelines sentence for drug trafficking and a guidelines sentence for witness tampering. The 5th Circuit affirmed the district court’s determination of drug quantity and its reliance on an FBI agent’s testimony about the witness tampering incident. The source of the information about drug quantity was phone calls intercepted with a court-approved wiretap. This contained more than a sufficient indicia of reliability to meet pre-guidelines standards for sentencing. Defendant’s only objection to the FBI agent’s testimony was that it was based on information supplied by the witness, who had not been truthful about another matter. However, credibility determinations are for the district court. U.S. v. Galvan, 949 F.2d 777 (5th Cir. 1991).
5th Circuit upholds reliance on co-conspirator’s hearsay statements to find defendant was an organizer. (770) The district court found that defendant was an organizer under guideline section 3B1.1 based upon statements in the presentence report which a co-conspirator had made to DEA agents. The statements revealed that defendant recruited the co-conspirators, directed the co-conspirators to pick up the drugs at a specific place, and paid the co-conspirator $25,000 in cash. The co-conspirator did not testify at defendant’s trial or at his sentencing hearing. The 5th Circuit upheld the enhancement, ruling that the information was not unreliable or materially untrue. Defendant submitted no evidence to rebut the information in the presentence report. His objection to the presentence report consisted only of the unsworn assertion by his attorney. Unsworn assertions do not bear sufficient indicia of reliability to be considered by the trial court in making its factual findings. In addition, the co-conspirator’s statements were consistent with facts that the DEA already knew to be true. U.S. v. Chavez, 947 F.2d 742 (5th Cir. 1991).
5th Circuit finds no improper consideration of defendant’s religion. (770) The 5th Circuit found no merit to defendant’s contention that she was punished because of her religious affiliation with the Ismaili Muslim faith. Defendant pointed to a statement in her presentence report noting that she should have been aware, “as an Ismaili Muslim,” of the frequent practice of exporting cash out of the United States to the Aga Khan. However, the probation officer indicated that the money laundering activities for which she and her co-defendants were indicted were not connected to those religious practices. In fact, the court never even mentioned defendant’s religious faith at sentencing. U.S. v. Allibhai, 939 F.2d 244 (5th Cir. 1991).
5th Circuit affirms consideration of laundered money involved in acquitted counts. (770) 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 affirms reliance upon acts committed before charged conduct. (770) The 5th Circuit rejected defendant’s claim that the district court erroneously relied upon the presentence report, which referred to acts committed before the charged conduct. A sentencing court may consider for sentencing purposes facts that were not alleged in the indictment. U.S. v. Puma, 937 F.2d 151 (5th Cir. 1991).
5th Circuit upholds consideration of drugs outside offense of conviction. (770) The 5th Circuit upheld the district court’s calculation of defendant’s offense level based upon drug quantities outside the offense of conviction. A co-conspirator established that defendant and his co-conspirators trafficked in up to 66 kilograms of cocaine, well above the threshold the court needed to support its sentence. This was reliable evidence that the court could consider, and the court was not limited to the amount of cocaine actually seized. There also was testimony of a special agent who concluded that defendant picked up couriers carrying kilogram sacks of cocaine, which independently supported the district court’s finding. U.S. v. Thomas, 932 F.2d 1085 (5th Cir. 1991).
5th Circuit affirms that court may consider relevant conduct detailed in factual portion of presentence report. (770) Defendant contended that he was not given adequate notice of the relevant conduct for which he was held accountable, as the description of some of his conspiracy activity appeared in the factual portion of his presentence report, rather than in the section entitled “Relevant Conduct.” The 5th Circuit rejected this contention, holding it is permissible for a sentencing court to consider relevant conduct detailed in the factual portion of a defendant’s presentence report. The right to notice of relevant conduct does not require that the notice appear in the relevant conduct section, or even the main body, of the presentence report. U.S. v. Thomas, 932 F.2d 1085 (5th Cir. 1991).
5th Circuit finds information relied on by district court was unreliable. (770) Defendant cooperated with authorities pursuant to his plea agreement, which provided that defendant was involved with 9 pounds of amphetamine. Defendant objected to the inclusion of 66 pounds in the calculation of his offense level on the grounds that this amount was not reliably known to the government prior to his cooperation, and that the use of self-incriminating statements he made while cooperating violated guideline § 1B1.8. The 5th Circuit agreed, and found that without the defendant’s incriminating statements, there was insufficient evidence to support the additional 66 pounds. The probation officer testified that prior to defendant’s plea the government knew of the 66 pounds, but the source of this information was unclear. Moreover, the government conceded that at the time of defendant’s plea, it knew of the lab, but could only confirm 9 pounds of amphetamine attributable to defendant. U.S. v. Shacklett, 921 F.2d 580 (5th Cir. 1991).
5th Circuit bases offense level on drugs outside the offense of conviction. (770) Defendant was charged with and pled guilty to the sale of two grams of amphetamines to a government agent. However, the presentence report concluded that defendant was responsible for the production of approximately 7,000 grams of amphetamines at a laboratory owned by the defendant. The 5th Circuit upheld the district court’s calculation of defendant’s offense level using the 7,000 grams. The district court properly based its findings on the presentence report, which in turn relied upon DEA investigative records, as well as information received from the state prosecution of defendant. U.S. v. Manthei, 913 F.2d 1130 (5th Cir. 1990).
5th Circuit holds that defendant’s statements made during negotiations that lead to guilty plea may be used in sentencing. (770) Fed. R. Crim. P. 11(e)(6)(d) and Fed. R. Evid. 410(4) provide that statements made during plea negotiations “which do not result in a plea of guilty or which result in a plea of guilty later withdrawn,” are not admissible against the defendant. The 5th Circuit held that “by their express language,” these rules “do not prohibit statements made during plea negotiations that lead to a plea of guilty.” The court rejected the defendant’s argument that the incriminating statements were made during earlier, unsuccessful, negotiations: “We find nothing .ÿ.ÿ. requiring that a particular discussion of series of discussions must produce a plea agreement.” Defendant’s statements were properly relied on in sentencing. U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).
5th Circuit upholds upward departure where district court relied solely on presentence report. (770) Defendant pled guilty to several counts of immigration law violations, including selling seasonal agricultural applications to illegal aliens. The district court departed upward based on the probation officer’s conclusion that the defendant was “in the business” of selling false documents and the government’s contention, related in the presentence report, that “countless illegal aliens” had benefited from defendant’s illegal activities, “severely compromising” the amnesty program in Louisiana. The 5th Circuit, relying on 18 U.S.C. 3661 and § 1B1.4 of the guidelines, held that a “district court acts within its discretion in relying solely on information contained in the presentence investigation report in departing upward,” although the weight to be given to the report remains a decision of the district court. The court upheld the departure, finding that although the information presented was not comprehensive, the departure was not clearly erroneous. U.S. v. Murillo, 902 F.2d 1169 (5th Cir. 1990).
5th Circuit holds that prior arrest record alone is too unreliable to justify departure. (770) Defendant had several prior arrests that did not result in convictions. The district court departed upward based on these arrests, stating that defendant’s criminal history Category of I did not adequately reflect his criminal history. The 5th Circuit reversed, ruling that arrests that do not result in convictions are not the “type of ‘reliable information’ that justifies a departure from the Sentencing Guideline range.” The court also noted that the departure was from Category I to Category III and directed that on remand, if the court departed, it should specifically state why a departure to Category II was inadequate. U.S. v. Cantu-Dominguez, 898 F.2d 968 (5th Cir. 1990).
5th Circuit affirms use of hearsay evidence to prove relevant conduct. (770) Defendant argued that the district court improperly relied on a dismissed count as relevant conduct because it was based on unreliable hearsay evidence. The 5th Circuit disagreed. Hearsay evidence is admissible to prove relevant conduct. The hearsay was not unreliable because it appeared in the indictment. An indictment is a “conclusive finding that there is probable cause to believe that the allegations . . . took place.” Further, the reports by the undercover agent set forth sufficient details to support probable accuracy. U.S. v. Byrd, 898 F.2d 450 (5th Cir. 1990).
5th Circuit affirms use of dismissed counts as “relevant conduct” in drug offense. (770) Defendant pled guilty to one count of distributing cocaine, and three other counts were dismissed. The presentence report included a dismissed count as “relevant conduct” and based the offense level on the total amount of cocaine distributed in both counts. Defendant disputed the allegations in the dismissed count but offered no evidence in rebuttal. The district court adopted the facts in the presentence report and imposed sentence accordingly. The 5th Circuit affirmed, rejecting defendant’s argument that a dismissed count that is “disputed” is not relevant conduct. Quantities of drugs outside the offense of conviction can be used if they are part of the “same course of conduct, or common scheme or plan” as the offense of conviction, regardless of whether such conduct is disputed. U.S. v. Byrd, 898 F.2d 450 (5th Cir. 1990).
5th Circuit holds that failure of district court to identify source or nature of information relied upon in departure requires remand. (770) The 5th Circuit held that the district court’s failure to specifically identify the source or nature of the information it relied upon making an upward departure for in sentencing a bomber required it to vacate the sentence and remand for resentencing. This failure precluded the appellate court from evaluating whether the information had sufficient indicia of reliability and was therefore the findings were clearly erroneous. U.S. v. Michael, 894 F.2d 1457 (5th Cir. 1990).
5th Circuit holds that hearsay statements offered at sentencing hearing are admissible. (770) A probation officer included in his presentence report statements by the case agent that the defendant’s motive for smuggling illegal aliens was to obtain a profit. The 5th Circuit held that it is proper for a District Court to consider hearsay statements at sentencing, if they bear sufficient indicia of reliability, and further, that the hearsay statements of a law enforcement officer are sufficiently reliable to be considered by a district court in its discretion. Here, that discretion was not abused. 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 rules that sentencing court may rely on matters outside the presentence report as long as defendant has opportunity to address court. (770) The district court departed from the guidelines based on factors not set forth in the presentence report. The 5th Circuit held that there was no error because the defendant was offered (and took) the opportunity to address the court on these factors, as provided by Fed. R. Crim. P. 32(a)(1). U.S. v. Avila-Iscoa, 888 F.2d 1049 (5th Cir. 1989).
5th Circuit holds acquitted conduct may be used in determining guideline sentence. (770) Expressing disagreement with the jury’s verdict, the trial judge departed upward based on the defendant’s carrying a firearm during a drug offense (18 U.S.C. § 924(c)(1)), even though the jury acquitted on that count. The Fifth Circuit upheld the departure, stating that “[a]lthough the jury may have determined that the government had not proved all of the elements of the weapons offense beyond a reasonable doubt, such a determination does not necessarily preclude consideration of underlying facts of the offense at sentencing so long as those facts meet the reliability standard.” U.S. v. Juarez-Ortega, 866 F.2d 747 (5th Cir. 1989).
6th Circuit upholds reliance on cooperating co-conspirator’s testimony to determine drug quantity. (770) Defendant asked the Sixth Circuit to adopt a new rule declaring all uncorroborated co-conspirator testimony that is offered at sentencing to establish drug quantities and provided under a cooperation agreement to be deemed presumptively unreliable as a matter of due process. The Sixth Circuit had previously rejected a similar request in U.S. v. Moncivais, 492 F.3d 652 (6th Cir. 2007). The guidelines and due process require only that evidence considered at sentencing have “sufficient indicia of reliability to support its probable accuracy.” This standard asks only that “some evidentiary basis beyond mere allegation in an indictment be presented to support consideration of such conduct as relevant to sentencing.” Here, the out-of-court proffer and testimony by the co-conspirator was detailed, consistent with earlier statements, and corroborated by other facts. In particular, the statement was corroborated by defendant’s concession that he participated with the co-conspirator in the regular movement of cocaine base from October 2008 through September 2009. U.S. v. Johnson, 732 F.3d 577 (6th Cir. 2013).
6th Circuit says court’s consideration of information from competency exam did not violate Fifth Amendment. (770) During a pretrial competency examination, a psychiatrist found defendant competent to stand trial, but diagnosed him with pedophilia. Defendant pled guilty to sexual exploitation of a child. The PSR included the pedophilia diagnosis and the fact that defendant fantasized about having sex with children. The Sixth Circuit held that the court’s consideration of the information from defendant’s competency exam did not violate his Fifth Amendment right against self-incrimination or make his sentence procedurally unreasonable. It was defendant, not the district court, who requested the examination. Defendant consulted with counsel just before discussing the details of his offense, and after being warned that the court would have access to the results of the examination. Everything in the record suggests he voluntarily submitted to the examination and spoke voluntarily during it. Estelle v. Smith, 451 U.S. 454 (1981), which held that a state court violated a capital defendant’s right against self-incrimination by relying on the results of an involuntary examination, was inapplicable here. U.S. v. Graham-Wright, 715 F.3d 598 (6th Cir. 2013).
6th Circuit reverses where plea did not admit quantity of firearms in the indictment. (770) Defendant pled guilty to two counts of receiving and selling stolen firearms. He argued that the court erred by enhancing his sentence based on the 75 firearms charged in the indictment, rather than the 17 guns defendant admitted during his plea hearing. The Sixth Circuit vacated and remanded for further proceedings. It was not true that defendant could only be held accountable at sentencing for the 17 guns that he admitted possessing and selling. A district court may enhance a sentence based on relevant conduct so long as its factual findings are supported by a preponderance of the evidence and the sentence imposed does not exceed the statutory maximum. However, defendant’s guilty plea should not have been treated as an admission of the quantity of firearms stated in the indictment. The quantity of firearms involved was not an element of the offense, and the quantity of firearms alleged in the indictment was not admitted by defendant at the plea hearing or in a plea agreement. Admission of facts from a guilty plea is limited to elements of the crime charged or those explicitly admitted to by the defendant. U.S. v. Louchart, 680 F.3d 635 (6th Cir. 2012).
6th Circuit upholds consideration of studies of recidivism of child sex offenders. (770) Defendant pled guilty to three child pornography offenses, and was sentenced to 121 months. He argued that the district court erred by considering studies measuring the recidivism rate of child sex offenders, including individuals convicted of “hands-on” sex offenses. Defendant had asked the court to consider data collected by the Sentencing Commission, which suggested that he had a 6.2 per cent chance of re-offending. The Sixth Circuit found that the court’s reliance on the recidivism studies was not excessive, “especially … consider[ing] the manner in which the court comprehensively weighed and balanced a multiplicity of sentencing factors.” The court’s judgment was based on factors such as defendant’s explanation for consuming child pornography, the court’s finding that defendant had not acted to remedy his impulse to do so, the pictures defendant took of his ex-girlfriend’s niece, and the video he made of himself acting out a sexual fantasy with the picture of a child. Based on this conduct, the court accorded the Commission’s statistics little weight in assessing defendant’s recidivism risk. This personalized assessment was just the sort of consideration required by § 3553(a). U.S. v. Cunningham, 669 F. 3d 723 (6th Cir. 2012).
6th Circuit rules prior Virginia sexual battery insufficient to trigger mandatory minimum in child porn case. (770) Section § 2252A(b)(1) provides for a 15-year mandatory minimum sentence if a child porn defendant has a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Defendant had a prior Virginia conviction for sexual battery. The Sixth Circuit ruled that this was insufficient to justify the enhancement, because the statute did not require, as an element of the offense, that the complaining witness be a minor. The judicial order of conviction stated that defendant was found guilty of sexual battery, and the indictment stated that defendant “did knowingly and intentionally sexually abuse” a child under 18. But the references to a minor in the indictment were not “essential to the offense to which [defendant] entered his plea,” and therefore, under U.S. v. Armstead, 467 F.3d 943 (6th Cir. 2006) those references had to be disregarded. Nor could the facts in the state PSR be used to find that the conviction involved a minor. U.S. v. Gardner, 649 F.3d 437 (6th Cir. 2011).
6th Circuit upholds use of W-2 to help determine tax fraud loss. (770) Defendant was convicted of three counts of attempting to evade or defeat the payment of taxes for the 2000-2003 tax years. He argued that the court erred in relying on Forms W-2 from his employer for 2000-2003, as those amounts were reported to the IRS. The Sixth Circuit found no error in the court’s use of the W-2 forms. In order to determine defendant’s base offense level, the district court had to determine the tax loss under § 2T1.1(c)(1), which refers to the loss that would have resulted had the offense been successfully completed. In order to calculate this amount, it was necessary to determine the amount of tax that defendant owed, which required determining his gross income. The best and most reliable method of determining his gross income from employment would be to look at the W-2 forms for those years. U.S. v. Gross, 626 F.3d 289 (6th Cir. 2010).
6th Circuit relies on victim letter and probation officer’s testimony to support pattern of abuse increase. (770) Defendant was convicted of possessing child pornography. The district court applied a five-level enhancement under §2G2.2(b)(5) for a pattern of activity involving sexual abuse or exploitation of a minor. The enhancement was based on allegations from a friend of defendant’s son that during the early and mid-80s, defendant molested him. The court relied on a letter sent from the victim to the U.S. Attorney’s office and testimony from a probation officer who interviewed the victim and several of his family members on the phone. The Sixth Circuit upheld the enhancement. The victim’s letter made specific allegations, including when the activity started, the time and day and year, and was corroborated by family members of the victim. The court’s reliance on the victim’s letter without live testimony from the victim was clearly permissible. U.S. v. Paull, 551 F.3d 516 (6th Cir. 2009).
6th Circuit relies on state online tracking system to confirm statutory basis of prior conviction. (770) Defendant was sentenced as a career offender based on the court’s finding that his prior Michigan assault conviction was a crime of violence. However, the PSR did not clearly define the statutory basis for the conviction (describing the offense as “Police Officer-Assault, Resist, & Obstruct”). Defendant argued that this ambiguous description did not refer to a crime of violence. However, publicly viewable criminal history records, in the Michigan Department of Corrections Offender Tracking Information System (OTIS), indicated that defendant was convicted of violating Mich. Comp. Laws Ann. §750.81d(2). This offense unambiguously defines a crime of violence because it involves an assault that causes an actual physical injury. Defendant never questioned the accuracy or reliability of his OTIS profile. Moreover, defendant’s OTIS records were consistent with the criminal history records made available by the Michigan State Police. U.S. v. Alexander, 543 F.3d 819 (6th Cir. 2008).
6th Circuit remands where district judge relied upon information obtained from ex parte communications with probation officers. (770) Defendant pled guilty to possession of child pornography. The PSR and a defense expert stated that defendant had never molested a child and would never harm a child. Three months after sentencing, the sentencing judge acknowledged that she had had ex parte discussions with the probation officer and a pretrial services officer who told her they believed that defendant had, in fact, acted on his pedophilia. She acknowledged that their opinions influenced her, and had she not taken their opinions into consideration, she would have imposed a much lower sentence. The Sixth Circuit held that the district court erred in relying on the undisclosed ex parte communications, and remanded for resentencing. The information was no more than “just feelings that these two people had” and was not based on any objective information. U.S. v. Christman, 509 F.3d 299 (6th Cir. 2007).
6th Circuit says court could properly consider at sentencing defendant’s refusal to complete psychosexual examination. (770) Defendant pled guilty to distributing child pornography. He argued that the district court violated his Fifth Amendment right against self-incrimination by drawing a negative inference from his unwillingness to complete the ordered psychosexual examination prior to sentencing. The Sixth Circuit found that it was well within the district court’s discretion to consider defendant’s refusal when selecting its sentence. Congress has explicitly authorized sentencing courts to “order a study of the defendant,” including “psychiatric or psychological examination” to determine “the mental condition of the defendant,” 18 U.S.C. § 33552(b) and (c); and has instructed that “[n]o limitation shall be placed” on what information may be considered by the court in making its sentencing determination. The Supreme Court’s decision in Mitchell v. U.S., 526 U.S. 314 (1999), which held that a sentencing court may not draw an adverse inference from a defendant’s silence in determining facts relating to the circumstances of a crime, was not applicable here. The district court plainly considered defendant’s refusal to complete testing in determining his propensity for future dangerousness, rather than in determining the facts of his case. U.S. v. Kennedy, 499 F.3d 547 (6th Cir. 2007).
6th Circuit holds that court erred at resentencing in considering post-sentencing conduct. (770) Following the Supreme Court’s decision in Booker, defendant’s sentence was vacated and his case remanded for resentencing. On remand, the court varied downward substantially from the guidelines’ minimum, citing defendant’s youth and impressionability at the time of the offense, his deep remorse, and his activities since his original sentencing. The Sixth Circuit held that the district court erred in considering defendant’s post-sentencing conduct as a ground for a downward variance. Because the purpose of the Booker remand is to ensure that the defendant’s sentence is consistent with the Sixth Amendment, a district court may consider only those facts that existed at the time the defendant was first sentenced. See U.S. v. Worley, 453 F.3d 706 (6th Cir. 2006), abrogation recognized by U.S. v. Gapinski, 422 Fed. Appx. 513 (6th Cir. 2011) (unpublished), No. 09-2267. Moreover, even if there were cases in which consideration of post-sentencing factors is justified, this was not one of them. Defendant’s clean post-conviction record, including his good behavior while incarcerated, and his stewardship of a family business were commendable, but they were not the kind of unusual circumstances that were deserving of consideration on a Booker remand. U.S. v. Keller, 498 F.3d 316 (6th Cir. 2007).
6th Circuit includes 1992 conviction in criminal history based on defendant’s admission that he obtained firearm involved in instant offense in 1999 or 2000. (770) Guideline § 4A1.2(e)(2) provides that any prior sentence that was imposed within ten years of defendant’s commencement of the instant offense is counted in a defendant’s criminal history. Here, defendant was sentenced to 180 days in jail for his 1992 felony drug conviction. Therefore, under § 4A1.2 (e)(2), that conviction could not be included in defendant’s criminal history if the current felon-in-possession offense commenced after 2002. Defendant admitted that he acquired the shotgun five or six years before his July 13, 2005 arrest, and the PSR stated that he committed the offense in 1999 or 2000. The Sixth Circuit upheld the inclusion of the drug conviction in defendant’s criminal history. Because the only evidence in the record on this issue was defendant’s admission to police that he first possessed the gun five or six years ago, the court did not err. U.S. v. McGee, 494 F.3d 551 (6th Cir. 2007).
6th Circuit holds proffer statement from co-conspirator was sufficiently reliable for sentencing purposes. (770) Defendant argued that his co-conspirator’s proffer statement was inadmissible at sentencing because it was hearsay that did not possess sufficient indicia of reliability. The Sixth Circuit disagreed, finding that the proffer was clearly above the minimum standard of reliability required for evidence to be admissible at sentencing. The court found that the statement was “richly detailed,” and was both internally and externally consistent. In addition, the statement could conceivably be used to impeach defendant if he subsequently testified to the contrary, which bolstered its reliability. Co-conspirators’ hearsay statements are admissible at sentencing, notwithstanding the fact that such statements may be “suspect” on account of the co-conspirators’ explicit or implicit desire to secure favorable treatment from the police. Defendant did not point to anything about the proffer statement that suggested that it was unreliable, beyond its character as hearsay and the fact that the co-conspirator was involved in the same conspiracy as defendant. U.S. v. Moncivais, 492 F.3d 652 (6th Cir. 2007).
6th Circuit upholds reliance on defendant’s statements at time of arrest. (770) Relying on Opper v. U.S., 348 U.S. 84 (1954), defendant argued that the district court erred by imposing an enhancement based on his statements at the time of his arrest. Opper held that a conviction cannot rest on a defendant’s out-of-court statements made after the crime unless the government provides independent evidence that tends to establish the trustworthiness of the statements. The Sixth Circuit held that the corroboration rule in Opper is not applicable at the sentencing stage. The constitutional protections required at trial are not requiring during the sentencing phrase. Defendant’s statements need only be shown to have been reliable and voluntary. U.S. v. Huffman, 461 F.3d 777 (6th Cir. 2006).
6th Circuit holds that court properly determined nature of prior conviction. (770) A state court judgment indicated that defendant was convicted of “CA:M2,” which the district court construed as criminal attempt, second degree murder. The government presented the indictment, which indicated that defendant had been charged with criminal attempt, first degree murder. The judgment of conviction listed the charged offense as “CA:M1,” and the offense of conviction as “CA:M2.” In addition, a probation officer opined that CA:M2 was an abbreviation for criminal attempt, second degree murder. The Sixth Circuit held that the district court did not violate the Sixth Amendment by construing the meaning of CA:M2. The judge’s inquiry was akin to construing a judgment that contained a misspelled word or was written in a foreign language. There is no prohibition against consulting reliable sources or applying common sense to interpret a judgment. U.S. v. Beasley, 442 F.3d 386 (6th Cir. 2006).
6th Circuit holds that court was required to look to plea colloquy to determine whether conviction was a controlled substance offense. (770) The district court refused to sentence defendant as a career offender, concluding that his Tennessee conviction for attempt to commit a felony was not a controlled substance offense. The court concluded that neither the record of defendant’s conviction nor the statutory elements of the offense indicated that the offense was a controlled substance offense, and refused to examine the indictment because defendant was not convicted of the charge appearing in the indictment. The Sixth Circuit held that the district court should have looked at the plea colloquy to determine whether the conviction was a controlled substance offense. Under Shepard v. U.S., 544 U.S. 13 (2005), the Supreme Court explicitly lists the documents that can be used by the court to characterize a felony under the ACCA. While Shepard involved the definition of a violent felony under the ACCA, its holding applies to Sentencing Guideline cases where a court must determine the nature of a prior conviction under a general statute. Under Shepard, a district court may also look to the plea colloquy in order to characterize a defendant’s prior conviction. U.S. v. Galloway, 439 F.3d 320 (6th Cir. 2006).
6th Circuit holds that Sixth Amendment rights were not violated by admission of hearsay at sentencing. (770) Based on Crawford v. Washington, 541 U.S. 36 (2004), defendant argued that the district court’s admission of hearsay testimony at sentencing violated his Sixth Amendment right to confrontation. However, Crawford did not address whether the Sixth Amendment right to confront witnesses applies at sentencing. It was well-settled that pre-Crawford, testimonial hearsay was admissible at sentencing if it bore some minimum indicia of reliability. The Sixth Circuit held that Crawford did not affect this long-standing principle. There is nothing specific in other cases such as Blakely v. Washington, 542 U.S. 296 (2004) or U.S. v. Booker, 543 U.S. 230 (2005) that would cause the court to reverse its long-settled rule of law that the Confrontation Clause permits the admission of testimonial hearsay evidence at sentencing proceedings. U.S. v. Katzopoulos, 437 F.3d 569 (6th Cir. 2006).
6th Circuit finds no Sixth Amendment violation where defendant did not object to drug quantity in PSR. (770) Defendant argued that his Sixth Amendment rights were violated because he was sentenced based in part on factors that he neither admitted nor were found by a jury. The Sixth Circuit found no constitutional violation. Defendant did not object to the PSR’s assertion that he possessed 9.59 grams of methamphetamine, a fact necessary to support defendant’s ten-year mandatory minimum sentence. Defendant failed to object to the PSR, and therefore, was deemed to have the admitted the facts in the report, including drug quantity. U.S. v. Adkins, 429 F.3d 631 (6th Cir. 2005).
6th Circuit holds that § 1B1.8 remains binding on courts after Booker. (770) Defendants argued that the district court violated § 1B1.8 in determining the amount of cocaine base attributable to them. Section 1B1.8 prohibits use of the defendant’s proffer statements in determining his sentencing range. In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court rendered the Sentencing Guidelines non-mandatory, but held that they must be considered by the sentencing courts. Booker did not address § 1B1.8. However, the Sixth Circuit declined to interpret Booker to mean that district courts are now permitted to consider at sentencing defendant’s own proffer statement, which are explicitly protected under § 1B1.8. Instead, just as before Booker, § 1B1.8 permits a court to consider the proffer statements of co-defendants in determining a defendant’s sentence, but prohibits the court from considered the defendant’s own proffer statements. U.S. v. Milan, 398 F.3d 445 (6th Cir. 2005).
6th Circuit upholds drug quantity finding based on co-conspirator testimony. (770) Luy testified that over the course of eight to ten months, he traveled to Atlanta once a month and on each trip purchased four pounds of methamphetamine, keeping two pounds for himself and giving two pounds to defendant. Occasionally, Luy would make two trips per month instead of one, in which case he would purchase two pounds of methamphetamine on each trip, keeping one pound for himself and giving one pound to defendant. The district court found that defendant could be held liable for over five kilograms of methamphetamine based upon this testimony alone. The Sixth Circuit affirmed, finding the drug quantity determination supported by Luy’s testimony. Testimonial evidence from a co-conspirator may be sufficient to determine the amount of drugs for which a defendant should be held accountable, even where the co-conspirator has reason to believe that he may receive a reduced sentence as a result of his testimony. U.S. v. Henley, 360 F.3d 509 (6th Cir. 2004).
6th Circuit holds that hearsay evidence cannot be used at sentencing to prove drug quantity beyond a reasonable doubt. (770) The district court imposed an 88-month sentence after finding that defendant’s conspiracy involved 236 kilograms of marijuana. The Supreme Court later decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The case was remanded for resentencing in light of Apprendi. The district court declined to consider the parties’ sentencing stipulation and determined that the evidence that the conspiracy involved 236 kilograms of marijuana was established beyond a reasonable doubt. The Sixth Circuit held that the normal rules of evidence should apply when Apprendi requires the district court to find drug quantity beyond a reasonable doubt. Therefore, it was not permissible to use hearsay evidence to reach the 50-kilogram quantity needed to sentence defendant under 18 U.S.C. § 841(b)(1)(C). Thus, the court improperly relied on Rush’s testimony that his nephews told him how many pounds of marijuana they bagged a night. The testimony of Dodge restating the testimony of grand jury witnesses also constituted impermissible hearsay. The remaining evidence was insufficient to establish the 50-kilogram figure. Therefore, defendant’s sentence of 88 months was improper because it subjected him to a sentence in excess of the statutory maximum, in violation of his right under Apprendi to have each element of the offense proved beyond a reasonable doubt. U.S. v. Darwich, 337 F.3d 645 (6th Cir. 2003).
6th Circuit holds that hearsay testimony supported drug quantity finding by a preponderance of the evidence. (770) Defendant challenged the court’s finding by a preponderance of the evidence that he was responsible for 236 kilograms of marijuana over the life of the conspiracy. He argued that the court improperly combined both bagged and sold marijuana to reach an inflated quantity. However, the Sixth Circuit found that evidence of the bagging operation alone resulted in an easy finding of at least 100 kilograms, which was sufficient to support a base offense level of 26. A conservative estimate of Easterling’s testimony resulted in a finding that she bagged 31.5 kilograms of marijuana. In addition, the less stringent evidentiary standard applicable to sentencing allowed the court to consider hearsay testimony. Dodge testified that Pace told the grand jury that he bagged one pound of marijuana each night during the fall of 1997, which yielded another 41.2 kilograms. Finally, Rush testified that his nephews bagged a pound each night for the length of the two-year conspiracy. The district court did not clearly err in determining that the conspiracy involved at least 100 kilograms of marijuana. U.S. v. Darwich, 337 F.3d 645 (6th Cir. 2003).
6th Circuit holds that court did not plainly err by relying on undisputed drug quantities in PSR. (770) Defendant argued that his sentence should be vacated because the district court relied on the PSR’s allegedly erroneous statement that he stipulated to the drug amounts contained in the report and never made specific findings regarding drug quantity. The Sixth Circuit held that the district court did not plainly err in relying upon the drug quantities in the PSR when those quantities were undisputed. The presentence investigator was mistaken in concluding that defendant stipulated in the plea agreement to the drug quantity, but that misstatement did not undermine the judge’s conclusion regarding the drug quantity. The plea agreement did not bind defendant to the stated drug quantities. He could have offered evidence that he should be accountable for a smaller amount. However, defendant neither objected to the drug quantities reported in the PSR nor took issue with the court’s determination of drug quantities at the sentencing hearing. U.S. v. Treadway, 328 F.3d 878 (6th Cir. 2003).
6th Circuit relies on witness testimony that defendant distributed “hundreds of ounces” of cocaine. (770) The district court based its drug quantity finding on the testimony of Williams and, to a lesser extent, the amounts of drugs in defendant’s three arrests for drug possession. Williams testified that from 1995, when defendant joined the conspiracy, until Williams was incarcerated in 1998, defendant was involved in the distribution of “hundreds of ounces” of cocaine, 20 to 30 percent of which was crack. At sentencing, the district court found that “hundreds of ounces” must equal at least 200 ounces, and that 20 percent of this would be 40 ounces, or about 1132 grams. The court held defendant accountable for 1132 grams of crack, placing him within the 500 to 1500 gram range, thus earning him a base offense level of 36. The Sixth Circuit found no clear error in the district court’s findings. The record was clear that Williams believed defendant to be responsible for distributing hundreds of ounces of cocaine, 20 to 30 percent of which was crack. In addition, the drug tabulations that were recovered from defendant’s residence reflected the sale of dozens of ounces of crack and powder cocaine. The court made a conservative assessment of drug quantity on the basis of this evidence – testimony that both the court and the jury found to be credible. U.S. v. Copeland, 321 F.3d 582 (6th Cir. 2002).
6th Circuit holds that subjective interpretation of officer’s comments did not prove § 1B1.8(a) agreement. (770) After police searched defendant’s residence and uncovered drugs and cash, defendant was advised of his Miranda rights. A police officer then explained to defendant that it was in his best interest to cooperate, and that the more he cooperated, the more he could help himself, in terms of receiving credit for acceptance of responsibility. The officer did not affirmatively represent that defendant’s statements would not be used against him. Defendant, however, testified that he understood these assurances to mean that his statements would not be used against him, and that but for these assurances he would not have cooperated. The district court found that no § 1B1.8(a) agreement had been formed and admitted evidence of defendant’s statements concerning drug quantity. The Sixth Circuit agreed that no § 1B1.8(a) agreement was established. Defendant’s subjective interpretation of the officer’s assurances, even if accepted as genuine, was simply not reasonable in view of the fresh advisement of Miranda rights and was insufficient, standing alone, to substantiate the existence of an agreement. Although a purported cooperation agreement need not include explicit reference to § 1B1.8(a) to be enforceable, unless the agreement embraces “reasonably definite immunizing consequences,” the courts will not read them into the agreement. U.S. v. Hopkins, 295 F.3d 549 (6th Cir. 2002).
6th Circuit says drugs possessed as juvenile may be considered relevant conduct. (770) On defendant’s first appeal the Sixth Circuit held that the district court could attribute to defendant drugs he possessed before February 15, 1994, when he was still a juvenile. However, prior to resentencing, the government voluntarily dropped count 55, the count involving the juvenile drug quantities. Nevertheless, the judge included the drug quantities involved in count 55 as relevant conduct. Defendant argued that because count 55 was dismissed, the district court was divested of subject matter jurisdiction to consider this activity because it occurred prior to his 18th birthday. He argued that the Federal Juvenile Delinquency Act (FJDA) precluded the exercise of subject matter jurisdiction over juvenile behavior that is not certified over to the district court by the Attorney General. The Sixth Circuit found this argument “creative, but not particularly compelling.” The FJDA divests the court of subject matter jurisdiction over uncertified behavior committed by juveniles. However, defendant was prosecuted as an adult for his adult behavior, and the district court had subject matter jurisdiction to hear any conduct that might be relevant to sentence defendant appropriately for that behavior. Even if the court lacked jurisdiction to prosecute defendant for his juvenile conduct as a separate crime, it did not lack jurisdiction to consider his juvenile behavior in calculating his sentence for a crime he committed as an adult. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).
6th Circuit upholds drug quantity attribution. (770) The Sixth Circuit upheld the attribution of 1211.68 grams of crack to defendant based on the testimony of several witnesses. Dotson attributed 766.16 grams of crack to defendant, derived from the 1/2 ounce (14.16) grams defendant provided to Dotson in 1992, the nine ounces (252 grams) Dotson observed stashed in a sock in defendant’s home in 1993, and the 500 grams that defendant processed at Dotson’s residence on two occasions in 1994. Dotson, as a seller and sometimes user, could easily identify an ounce of crack cocaine, and likely could recognize nine times that amount dumped out of a sock. Although the court was more wary of Dotson’s testimony that he could identify 20 or 40 times that amount on sight, there was sufficient corroborating proof to support the estimate. Clausell attributed 288.08 grams to defendant; 8.08 grams from his own purchases in 1992, and 280 grams that he observed defendant “cook.” Clausell’s drug use did not make the court’s reliance on it clear error. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).
6th Circuit holds that court properly relied on witness testimony to make drug quantity attribution. (770) The district court attributed to defendant 700 grams of crack from the testimony of Clausell, and 126 grams of crack from the testimony of Terry. The Sixth Circuit found no error in the drug quantity calculation. Clausell stated that he saw defendant selling crack daily throughout 1992, typically possessing a quarter ounce of crack per day. Nothing during cross-examination undermined Clausell’s credibility. Using a conservative estimate of possessing or distributing a quarter ounce of crack twice a week for a year, the court arrived at the 700 gram figure. Another witness partially corroborated this testimony at trial, stating that he saw defendant with $100 worth of crack on at least two or three occasions. The 126 grams attributed to defendant were based upon Terry’s testimony at trial, subject to cross examination, and not by hearsay evidence relayed from Terry. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).
6th Circuit upholds reliance on audiotape of transaction to attribute drugs to defendant. (770) Defendant was convicted of a variety of drug trafficking charges. At sentencing, Officer Watts testified about a November 9, 1998 transaction involving defendant and an informant. Watts observed through binoculars and heard through an audio recording device defendant and the informant arranging the purchase of one-half ounce of crack for $500. The informant was told to return to defendant’s house in about 30 minutes. Watts was unable to see the transaction because he was unable to position himself at the surveillance point. However, he was able to hear the conversation between the informant and defendant through the audio recording device. Watts testified that he heard the voices of the informant, defendant and another conspirator as they attempted to weigh the cocaine. After hearing Watts, the videotape, and the audiotape of the November 9 transaction, the district court found by a preponderance of the evidence that defendant was involved, and attributed the 5.5 grams of crack to defendant. Although the qualify of the audiotape was poor, the Sixth Circuit upheld the district court’s reliance on the audiotape to determine that defendant was involved in the November 9 transaction. The court did not engage in speculation, but viewed all the available evidence. The court viewed the videotape, listened to the audiotape, and heard testimony from Watts that he heard defendant’s voice on the audiotape. U.S. v. Smith, 245 F.3d 538 (6th Cir. 2001).
6th Circuit rejects another Singleton challenge to use of testimony obtained from witness promised leniency. (770) Citing U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), on rehearing, 165 F.3d 1297 (10th Cir. 1999), defendant argued that the district court erred in admitting testimony procured by prosecutors in exchange for sentencing reductions, in violation of the federal anti-bribery statute, 18 U.S.C. § 201(c). However, Singleton was reversed by the Tenth Circuit en banc, and was explicitly rejected by the Sixth Circuit in U.S. v. Ware, 161 F.3d 414 (6th Cir. 1998). The Ware court held that the word “Whoever” in § 201(c)(2) does not apply to the government, and that the statute does not preclude a prosecutor from offering a cooperating defendant leniency in exchange for truthful testimony against another individual. Therefore, the Sixth Circuit refused in this case to disturb a challenged conviction on the ground that it was obtained with testimony solicited by the government in exchange for promises of leniency at sentencing. U.S. v. Randolph, 230 F.3d 243 (6th Cir. 2000).
6th Circuit relies on PSR loss rather than trial testimony. (770) Defendant contended that the trial court erroneously adopted the loss calculation computed by the probation officer who prepared the PSR. Defendant claimed that testimony at trial established a figure of less than one million dollars. At sentencing, the probation officer explained that he based his loss calculation on a report that he received from an IRS agent investigating the case. Noticing losses in the report that the victims had not reported previously, the probation officer contacted the victims and requested sworn statements. The sworn statements were consistent with the IRS report except for a few inconsistencies that the probation officer found. The district court found that the victim impact statements used in the preparation of the PSR were more accurate than the trial testimony, and supported the probation officer’s calculation. The court noted that the referenced testimony was incomplete and often taken out of context, and that some testimony related to a time midway in the scheme. Accordingly, the Sixth Circuit ruled that the loss calculation was not clearly erroneous. U.S. v. Prince, 214 F.3d 740 (6th Cir. 2000).
6th Circuit holds that court properly relied on evidence presented at trial of co-conspirators. (770) To support a § 2D1.1(b)(1) firearm enhancement, the district court made findings of fact based upon testimony presented during the trial of defendant’s co-conspirators. Defendant brought a § 2255 motion, arguing that a subsequent case, U.S. v. McMeen, 49 F.3d 225 (6th Cir. 1995), changed the law regarding factual findings at sentencing. The Sixth Circuit ruled that McMeen was not an intervening change in the law, and held that the court properly relied on information presented at the trial of co-conspirators. McMeen reversed a more than minimal planning increase that had been based on an addendum to the PSR stating that defendant participated in a larger scheme in Florida. Neither the addendum nor the PSR cited any evidence linking the defendant to the Florida scheme. The appellate court reversed because the information in the PSR did not have sufficient indicia of reliability. McMeen simply stands for the proposition that a court may not base an enhancement on unsupported conclusions in the PSR. Even if this was an intervening change in the law, defendant would still not be entitled to relief. The district court properly relied on evidence presented to the court at the trial of defendant’s co-conspirators. Logan v. U.S., 208 F.3d 541 (6th Cir. 2000).
6th Circuit upholds reliance on co-conspirator’s drug quantity estimate. (770) Defendant argued that the district court erred in relying exclusively on Owusu’s testimony in holding him accountable for over 150 kilograms of cocaine. The Sixth Circuit found no error. The court considered only Owusu’s testimony because that quantity already exceeded 150 kilograms of cocaine, which corresponded to the highest base offense level in the guidelines. The court found defendant Owusu was a “very credible witness” before relying on his testimony. Owusu testified that he and defendant began in early 1988 by purchasing a quarter of a kilogram of cocaine in New York for distribution in Ohio. They continued purchasing increasingly greater quantities until they were arrested in September 1988. In 1989 they began purchasing cocaine in New York again. The worked up to five to seven kilograms in New York twice a month. In 1991 and 1992, they were buying five to ten kilograms of cocaine twice a month. In 1993 and 1994, defendant received one to three kilograms of cocaine per week. Based on this testimony, 150 kilograms was a conservative estimate. Although defendant contended that this testimony was not credible, testimony from three others provided similar evidence of large cocaine amounts. U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000).
6th Circuit directs court to evaluate drug quantity evidence more closely. (770) Defendant claimed that Dotson, whose testimony was accepted by the probation officer to attribute 1269 grams of crack to defendant, was unreliable. The officer did not personally meet with Dotson, but relayed information from his supervisor who did meet with Dotson. Defendant pointed out that Dotson was not always truthful during his testimony (saying he did not use drugs during probation but then remembering that he did), that he could not calculate weight of drugs by looking at them, and was not sure how much a kilogram is. Since the case was being remanded anyway, the Sixth Circuit directed the district court to evaluate the government’s evidence more closely to ensure that drug quantities allocated to defendant could be proved by a preponderance of the evidence. U.S. v. Gibbs, 182 F.3d 408 (6th Cir. 1999).
6th Circuit finds insufficient information to support reliability of drug quantity hearsay. (770) The district court attributed 625 grams of crack to defendant based on statements made by Jackson at a post-trial private interview with the probation officer. At sentencing, the probation officer said that she spoke with Jackson the day before the sentencing hearing. However, the PSR, which was prepared months before, already included the 625 grams of crack. This inclusion was apparently attributable to information provided to the testifying probation officer by other probation officers. The Sixth Circuit ruled that there was insufficient information to support the reliability of the 625-gram figure. Although the use of hearsay testimony at sentencing is permissible, there must be some evidence of reliability. The district court should have elicited more information from the probation officer regarding her discussion with Jackson and other probation officers. At resentencing, the district court must elicit more information about Jackson’s original statements and the source of Jackson’s knowledge. U.S. v. Gibbs, 182 F.3d 408 (6th Cir. 1999).
6th Circuit holds that court plainly erred in relying on undisclosed victim letters. (770) At sentencing, the judge noted that he had received a number of letters from people who were in the bank at the time defendant robbed it. The letters discussed the psychological impact the robbery had on these people. The judge said that he took those letters “very seriously,” and then sentenced defendant to the maximum guideline sentence. Before the court made these remarks, neither defendant nor his attorney knew that the letters existed. The Sixth Circuit held that the district court plainly erred in relying on the undisclosed victim letters. See U.S. v. Patrick, 988 F.3d 641 (6th Cir. 1993)(district court committed error by relying, without notice, on evidence from another defendant’s sentencing hearing). Rule 32 required that the letters be disclosed. The court disagreed with U.S. v. Curran, 926 F.2d 59 (1st Cir. 1991), which held that the failure to disclose letters such as these did not violate Rule 32 because they were not part of the presentence report. Evidence used at sentencing may not be kept from the defendant simply by failing to incorporate it into the PSR. The error affected defendant’s substantial rights. The court sentenced defendant to the maximum allowable sentence, and the crime’s impact on the victims, as conveyed in the letters, was prominent in the court’s explanation of its sentence. U.S. v. Hayes, 171 F.3d 389 (6th Cir. 1999).
6th Circuit relies on hearsay to include relevant conduct in loss from telemarketing schemes. (770) Defendant was employed as a telemarketer at various times in 1993-95. The district court included in its loss calculation both the $376,643 loss to current victims and the over $600,000 in losses from defendant’s two prior telemarketing schemes. Evidence regarding these activities were presented at sentencing through the testimony of an IRS agent, based upon her prior conversation with an FBI Special Agent in California. The Sixth Circuit held that the district court properly relied on the hearsay evidence to hold defendant accountable for losses from the previous telemarketing schemes. Hearsay evidence is admissible in guideline sentencing hearings. This case was similar to U.S. v. Brown, 147 F.3d 477 (6th Cir. 1998), where the court included losses from prior telemarketing schemes which had the same modus operandi and purpose. The evidence here also established a similar modus operandi and an ongoing series of similar offenses. U.S. v. Davis, 170 F.3d 617 (6th Cir. 1999).
6th Circuit upholds finding that defendant was involved with conspiracy for a year. (770) Defendant was a member of a large marijuana distribution conspiracy. The government presented a tape-recording of a telephone conversation which suggested defendant was involved in the conspiracy in November 1993. A witness also testified that defendant told him he had been dealing with the marijuana conspirators for about a year. Defendant, however, testified that while he had known for about a year before his arrest that his friends were drug dealers, he did not become involved in the drug business until April 1994. The Sixth Circuit affirmed a drug quantity calculation based on the district court’s finding that defendant was involved in the conspiracy for a year. The court specifically found defendant was not credible, in marked contrast to the witness, who the judge found “quite persuasive.” The court’s credibility findings were virtually unassailable on appeal and there was no basis for rejecting them. U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
6th Circuit affirms where challenged drugs did not change offense level. (770) Defendant pled guilty to two counts of possessing over 500 grams of methamphetamine. He argued that the certain drugs found during a search of his truck should have been suppressed, and therefore should not have been used in his sentencing calculation. The Sixth Circuit found the issue without merit since it had already upheld the validity of the search. Moreover, deleting the meth found in defendant’s truck would not have changed his offense level. Even without the 500 plus grams recovered from his truck, defendant was still responsible for over 18 kilograms of methamphetamine. His offense level of 36 applies in cases involving at least 10 kilograms but less than 30 kilograms of meth. U.S. v. Lumpkin, 159 F.3d 983 (6th Cir. 1998).
6th Circuit holds return of search warrant was more reliable than police report for marijuana plants. (770) Defendant pled guilty to manufacturing marijuana. The district court held him accountable for 104 plants, relying on an incident report that said 96 plants were seized from the main portion of the rear bedroom, and an additional eight plants were recovered from the closet. However, the return of the search warrant only listed 96 plants as having been found. The district court found the incident report more reliable because it was more lengthy and detailed. On appeal, the Sixth Circuit reversed, holding that the return of the search warrant was more reliable. Police incident reports are prepared with an eye towards prosecution. They are generally considered unreliable and are excluded as inadmissible hearsay. Unlike the return of the search warrant, the incident report was not sworn and presented to a judicial official. No officer with personal knowledge of the seizure testified to its veracity. In contrast, two police officers swore to a magistrate that the material contained in the return of the search warrant was a true and correct tabulation of the items seized at defendant’s residence. U.S. v. Russell, 156 F.3d 687 (6th Cir. 1998).
6th Circuit uses crack penalties where defendant never objected during sentencing. (770) Defendant argued for the first time on appeal that the government failed to prove that the cocaine involved in his offense was crack rather than powder cocaine. The Sixth Circuit held that by filing of a notice of no objection to the PSR, defendant expressly admitted the amount and type of drugs attributed to him in the PSR. In addition, the amounts attributed to defendant were based on evidence of defendant’s sales to cooperating witnesses and information obtained from co-defendants. It was proper for the district court to rely on such testimonial evidence regarding the quantity of drugs involved. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit upholds relying on co-conspirator’s testimony to determine drug quantity. (770) Defendant objected to the court’s reliance on the testimony of his co-conspirators to determine drug quantity. The Sixth Circuit upheld the reliance on the co-conspirator’s testimony since defendant did not suggest that the court’s credibility determinations were without foundation. An appellate court should defer to the district court on credibility determinations unless they are without foundation. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit remands for findings on individual participation in conspiracy. (770) Three defendants challenged the amount of drugs used to determine their offense level in a drug conspiracy. The court found that the conspiracy distributed between 16‑29 kilograms of crack, and attributed this to each defendant. Only one defendant formally objected. The Sixth Circuit held that the district court’s failure to make individualized findings as to two of the defendants was plain error. The court made no findings on the defendants’ individual participation in the conspiracy. The error was plain because many cases make clear that a sentencing court has the obligation to make individualized findings regarding each conspirator’s participation in the conspiracy. The error affected substantial rights, since it resulted in an increase of up to five years in defendants’ sentences. The court should also revisit its decision to credit the statement of an out‑of‑court conspirator. Hearsay must have sufficient indicia of reliability to be used at sentencing. Here, the out‑of‑court statement was not entirely consistent with the conspirator’s trial testimony. U.S. v. Tucker, 90 F.3d 1135 (6th Cir. 1996).
6th Circuit refuses to consider past sexual abuse that was unrelated to pornography charge. (770) Defendant pled guilty to knowingly receiving child pornography through the mails. The government sought to introduce at sentencing evidence that defendant was a predatory pedophile who for two decades had sexually abused and exploited more than a dozen minor females, including his first wife, his daughter, and her friends. The Sixth Circuit upheld the district court’s refusal to consider the information since it was unrelated to the charged offense. Section 2G2.2(b)(4), which provides an enhancement for a pattern of activity involving the sexual abuse or exploitation of a minor, was inapplicable since the past acts alleged by the government were unrelated to the offense of receiving pornography. “Specific offense characteristics” means characteristics specific to the offense of conviction. U.S. v. Surratt, 87 F.3d 814 (6th Cir. 1996).
6th Circuit considers drugs from tally sheet. (770) Defendant was convicted of possessing crack cocaine with intent to distribute. The court considered at sentencing a drug tally sheet identified by an associate as written in the handwriting of another conspirator. The tally sheet stated that defendant owed this conspirator a debt of $1000. The district court relied on testimony and evidence at trial that $1000 would purchase 28 grams of crack, and inferred that the $1000 was an amount that had been purchased by defendant from this conspirator. Defendant argued that the accomplice did not see the conspirator writing on the tally sheet nor did she have first hand knowledge that defendant owed the conspirator $1000. The Sixth Circuit found that the district court reasonably inferred that defendant owed $1000 to the conspirator for 28 grams of crack. U.S. v. Bingham, 81 F.3d 617 (6th Cir. 1996).
6th Circuit says claim of improper witness preparation really was challenge to credibility of witness. (770) Defendant contended that the government improperly gave information to a co-conspirator to assist him in preparing to testify at defendant’s sentencing hearing. He argued that the government’s unconscionable witness preparation precluded cross-examination and violated his 6th Amendment right to confront witness. The Sixth Circuit found that defendant’s claim of improper witness preparation was really a challenge to the witness’s credibility, which was an issue for the finder of fact. The circumstances which led to the co-conspirator’s testimony pertain to the weight which should be given to this evidence, not its admissibility. U.S. v. Bingham, 81 F.3d 617 (6th Cir. 1996).
6th Circuit says court made sufficient factual findings before imposing sentence. (770) Defendant argued that the court relied on information that failed to meet the minimum indicia of reliability required by § 6A1.3(a). The Sixth Circuit disagreed. The district court held a hearing, heard testimony from the probation officer and from the defendant himself, and used information in the presentence report to make its factual determinations. The district court also determined that portions of the PSR would not be considered in imposing sentence. Thus, the court made sufficient factual findings under § 6A1.3(a) concerning the imposition of defendant’s sentence. U.S. v. Greene, 71 F.3d 232 (6th Cir. 1995).
6th Circuit upholds estimate based on chemist’s affidavit despite inconsistency with trial testimony. (770) The 6th Circuit upheld the district court’s determination that defendant was responsible for 200 pounds of methamphetamine, based upon a DEA chemist’s affidavit that the 27.4 liters of acetic anhydride found in defendant’s laboratory could be used to produce 38.9 kilograms of phenyl-2-propane, which could be used to make either 43.2 kilograms of methamphetamine or 39.2 kilograms of amphetamine. Although this conflicted with the chemist’s trial testimony that no acetic anhydride was found in the lab, the district court found that the chemist was mistaken at trial. U.S. v. Brannon, 7 F.3d 516 (6th Cir. 1993).
6th Circuit upholds consideration of illegally seized evidence at sentencing. (770) The 6th Circuit upheld the district court’s consideration at sentencing of illegally seized drugs. There was no indication in the record that this evidence was obtained to enhance defendants’ sentences. The court noted that the opinion of two judges in U.S. v. Nichols, 979 F.2d 402 (6th Cir. 1992), cert. granted in part, Nichols v. U.S., 114 S.Ct. 39 (1993), that illegally seized evidence should not be considered at sentencing, was dicta not binding on it. Judge Keith dissented. U.S. v. Jenkins, 4 F.3d 1338 (6th Cir. 1993).
6th Circuit upholds conservative estimate based on drug runner’s testimony of deliveries he made. (770) The 6th Circuit upheld the district court’s “conservative” estimate of the quantity of cocaine and Dilaudid tablets distributed by defendant over a five month period, based on the testimony of one of defendant’s runners. The court found that the runner delivered drugs only once a day, five days a week, despite the runner’s testimony that he made deliveries up to five times a day. The court also conservatively estimated each delivery to contain only one Dilaudid tablet and one bag of cocaine, even though the runner testified that his average delivery was one or two Dilaudid pills and two or three packets of cocaine. Moreover, the court ignored all deliveries by two other couriers working for defendant, and estimated that each Dilaudid pill weighed only .05 grams, while the toxicology report showed the pills purchased from defendant actually weighed between .075 and .09 grams each. U.S. v. Clemons, 999 F.2d 154 (6th Cir. 1993).
6th Circuit affirms that conspirators’ possession of weapons was foreseeable to defendant. (770) The 6th Circuit affirmed an enhancement under section 2D1.1(b)(1) for possessing a firearm during the commission of a drug offense. In imposing the enhancement, it was proper for the district court to rely on incidents not mentioned in the presentence report. Particularly where, as here, the sentencing hearing occurs after a lengthy, multi-defendant jury trial, a defendant should not be surprised when a trial court considers evidence developed at trial. Moreover, the fact that guns were housed in defendant’s apartment during the course of the conspiracy sufficiently linked defendant to the weapons. The trial judge, who heard extensive evidence at trial regarding the intricacy and interrelationship of the conspiracy and its members, did not err in finding that the other members’ gun possession was reasonably foreseeable to defendant. U.S. v. Medina, 992 F.2d 573 (6th Cir. 1993).
6th Circuit finds no Confrontation Clause right to evidentiary hearing on drug quantity. (770) The 6th Circuit held that the district court’s decision to deny defendants’ request for an evidentiary hearing concerning drug quantity did not violate the Confrontation Clause. Although a sentence may not be imposed on the basis of material misinformation, specific procedures, such as are required at trial, are not constitutionally mandated at sentencing. U.S. v. Medina, 992 F.2d 573 (6th Cir. 1993).
6th Circuit remands to reexamine method of converting cash into drugs. (770) Defendant was held accountable for crack cocaine seized by the government. Based on the probation officer’s estimation that the “street value” of crack in the area was $1,000 per ounce, the court converted $4,592 seized into 4.5 ounces of crack, and included this quantity in defendant’s base offense level. The 6th Circuit remanded for the court to reexamine the method used for converting the cash into drugs. Application note 2 to section 2D1.4 authorizes the conversion of seized currency into its equivalent in drugs, but the conversion ratio must be supported by a preponderance of the evidence. The record did not indicate how the court determined the drug unit value. The court rejected the concurrence’s suggestion that the district court could determine the value of cocaine through “consideration of its docket.” To sentence a defendant based on facts established at someone else’s trial would violate due process. U.S. v. Jackson, 990 F.2d 251 (6th Cir. 1993).
6th Circuit upholds use of statements made while intoxicated. (770) The district court relied upon incriminating statements defendant made to co-defendants and FBI agents while he was intoxicated to determine his offense level. The government conceded that defendant was intoxicated enough to qualify for conviction under state DUI statutes. Although it was a “close question,” the 6th Circuit upheld the consideration of the statements made while intoxicated. First, it appeared that defendant, although intoxicated, was at least reasonably coherent and articulate. More importantly, defendant did not challenge the procedural adequacy or constitutionality of the manner in which the statements were obtained. Defendant’s confrontation clause rights were not violated even though the informant, co- defendants, FBI agents and probation officer who provided the information in the presentence report were not available for cross-examination at sentencing. When a defendant pleads guilty, sentencing does not mandate confrontation and cross-examination on information that the court obtains through presentence and law enforcement sources. U.S. v. Gibson, 985 F.2d 860 (6th Cir. 1993).
6th Circuit bars consideration of illegally seized evidence that is related to offense of conviction. (770) Defendant challenged the consideration of evidence obtained during his 1988 arrest on state drug charges, since the state court had suppressed the evidence as the product of an illegal seizure. The 6th Circuit upheld its jurisdiction to consider this claim under 18 U.S.C. section 3742(a)(1), and ruled that the exclusionary rule bars reliance on evidence illegally seized during the investigation for the crime of conviction. The guidelines have dramatically changed the costs and benefits underlying the exclusionary rule. In this case, however, the illegally seized evidence could be considered because the 1988 arrest did not fall within the guidelines’ relevant conduct provisions. Where the district court does not otherwise rely on the evidence in determining the defendant’s sentence, the court may consider it in sentencing within the guideline range. Judge Nelson refused to join the majority’s “dicta” regarding the exclusionary rule. U.S. v. Nichols, 979 F.2d 402 (6th Cir. 1992), cert. granted in part, Nichols v. U.S. 114 S.Ct. 39 (1993).
6th Circuit, en banc, holds that Confrontation Clause does not apply at sentencing hearing. (770) In U.S. v. Silverman, 945 F.2d 1337 (6th Cir. 1991), rehearing granted and decision vacated (6th Cir. Dec. 4, 1991), a 6th Circuit panel held that the reliability of hearsay evidence used at sentencing must be tested under the Confrontation Clause. On rehearing en banc, the 6th Circuit rejected this approach, holding that the Confrontation Clause does not apply to sentencing hearings. It is a long-established principle that the constitutional protection afforded a criminal defendant at trial, including confrontation rights, are not available at sentencing to limit the court’s consideration of the background, character and conduct of the defendant. The court rejected the theory that the sentencing guidelines have so changed sentencing procedures as to entitle a defendant to trial-like procedural protection at sentencing. Fed. R. Crim. P. 32 affords the defendant adequate due process protection. Hearsay evidence may be considered, so long as the defendant has the opportunity to refute it, and the evidence bears some minimal indicia of reliability. Judge Nelson concurred. Chief Judge Merritt and Judge Martin dissented. U.S. v. Silverman, 976 F.2d 1502 (6th Cir. 1992) (en banc).
6th Circuit, en banc, denies opportunity to review probation officer’s interview notes from which he gave hearsay testimony. (770) The 6th Circuit, en banc, found no error in the district court’s denial of defendant’s request to inspect the probation officer’s interview notes from which he gave hearsay testimony against defendant. The extent of a defendant’s constitutional right is not to be sentenced on the basis of invalid information, and a defendant must be given an opportunity to rebut any challenged information. Since defendant was given an opportunity to explain or rebut any challenged information, his request failed. U.S. v. Silverman, 976 F.2d 1502 (6th Cir. 1992) (en banc).
6th Circuit affirms that district court could disregard defendant’s testimony concerning drug quantity. (770) Although defendant estimated that the drug quantity involved in his case was five kilograms of cocaine, the district court determined that defendant was responsible for 40 to 50 kilograms. The 10th Circuit affirmed that the district court could disregard defendant’s testimony in favor of numerous other witnesses who testified that much larger amounts of cocaine were involved. U.S. v. Chalkias, 971 F.2d 1206 (6th Cir. 1992).
6th Circuit upholds reliance on FBI agent’s testimony from his interviews with three informants. (770) The district court determined the quantity of drugs involved in defendant’s relevant conduct by relying upon the testimony of an FBI agent about the interviews he conducted with three informants. The court resolved discrepancies between the informants’ recollections by adopting the version most favorable to defendant. The 6th Circuit rejected defendant’s claim that this was not reliable evidence. The district court specifically found the FBI agent’s testimony credible, and this implied a finding that his informants were credible. There was no evidence that the agent or his informants suffered any faultiness of memory or that their statements were mere guesses. Although there were some discrepancies, most of the informants’ testimony corroborated one another. Any residual discrepancies were resolved in defendant’s favor. Judge Cohn dissented. U.S. v. Ushery, 968 F.2d 575 (6th Cir. 1992).
6th Circuit upholds consideration of hearsay at sentencing until en banc court issues its decision in Silverman. (770) Relying on U.S. v. Silverman, 945 F.2d 1337 (6th Cir. 1991), defendant argued that the use of hearsay evidence at sentencing violated his 6th Amendment rights under the confrontation clause. The 6th Circuit noted that Silverman had been vacated when the government’s petition to rehear the case en banc was granted, 945 F.2d. 1337 (6th Cir. 1991), and that the case had been reargued and disposition was currently pending. Until the en banc court issues its opinion, the 6th Circuit will follow the majority of circuits in rejecting the application of the 6th Amendment’s confrontation clause to sentencing proceedings. The use of the hearsay evidence did not violate defendant’s due process rights. U.S. v. Ushery, 968 F.2d 575 (6th Cir. 1992).
6th Circuit upholds reliance upon hearsay statements corroborated by other witness testimony at trial. (770) The 6th Circuit upheld the district court’s reliance upon hearsay statements in defendant’s presentence report to determine defendant’s role in the offense. The statements were corroborated by other witness testimony at trial, and thus, contained sufficient indicia of reliability to support their probable accuracy. U.S. v. Holmes, 961 F.2d 599 (6th Cir. 1992).
6th Circuit okays use of defendant’s statements made during presentence interview. (770) Defendant was arrested in possession of 135 grams of crack cocaine. Because the court urged defendant to cooperate fully in the probation officer’s investigation, defendant admitted to the probation officer that he had made four prior crack sales in the two months prior to his arrest. Based upon this information, the district court determined that defendant was involved with a total of 985.5 grams of crack cocaine. The 6th Circuit rejected defendant’s objection to the use of the information he provided to his probation officer. Such uncharged drugs were clearly relevant conduct under the guidelines, and thus the district court was authorized to consider the uncharged drugs in determining defendant’s base offense level. Prior Circuit precedent has upheld the use of information that a defendant provides to his probation officer during a presentence interview. Judge Jones concurred in the result because the court was bound by precedent, but disagreed with that precedent. U.S. v. Wilson, 954 F.2d 374 (6th Cir. 1992).
6th Circuit upholds approximation of cocaine quantity based upon cooperating co-conspirator’s testimony. (770) The district court included in the calculation of defendant’s base offense level 30 to 40 kilograms which a co-conspirator testified he had purchased from defendant during the previous years. Defendant contended that it was improper to punish him for the additional kilogram amounts based solely on the testimony of a co-conspirator, particularly one who had traded testimony to the government in exchange for a plea agreement. The 6th Circuit found no error in the district court’s reliance upon such testimony. The testimony was corroborated by the records found in another conspirator’s purse, which noted collection of payments of $330,000. U.S. v. Straughter, 950 F.2d 1223 (6th Cir. 1991).
6th Circuit upholds consideration of relevant conduct despite defendant’s acquittal. (770) Defendant contended that his acquittal of one drug count barred the district court from considering this conduct in determining his base offense level. The 6th Circuit rejected this argument. In order to convict at trial, the government must prove the elements of the offense beyond a reasonable doubt, while the burden of proof at sentencing is the lesser preponderance of the evidence. Here, there was sufficient evidence of the prior drug involvement. Defendant supplier provided extensive testimony regarding defendant’s involvement in drug trafficking and the amount of cocaine he supplied to defendant. U.S. v. Moreno, 933 F.2d 362 (6th Cir. 1991).
6th Circuit holds that sentencing court is free to consider relevant evidence excluded at trial. (770) The 6th Circuit held that a sentencing court is free to consider relevant evidence excluded at trial in determining a defendant’s sentence. U.S. v. Sanchez, 928 F.2d 450 (6th Cir. 1991).
6th Circuit upholds reliance upon information provided by informant. (770) The 6th Circuit rejected defendant’s assertion that the district court erred in relying upon information incorporated in the presentence report which was provided by an unreliable witness. The probation officer asserted that the informant had provided detailed information on the automobile which was used to transport the drugs, and the informant warned the government that kilogram quantity deliveries of the drugs could be delivered by her source, an allegation which was corroborated by the occurrence of such a delivery soon after her warning. The information thus had the “minimum indicia of reliability beyond mere allegation.” U.S. v. Herrera, 928 F.2d 769 (6th Cir. 1991).
6th Circuit holds judge may disregard jury’s determination of drug quantity. (770) Although the jury found defendant guilty of conspiring to distribute less than 500 grams of cocaine, the sentencing judge determined that defendant was involved with between 500 grams and two kilograms of cocaine. The 6th Circuit upheld the judge’s actions, finding that the judge was not bound by the jury’s verdict. There was sufficient evidence to support the judge’s determination. A witness testified as to defendant’s numerous cocaine dealings. Because the judge had expressly found this witness to be credible, the determination was not clearly erroneous. U.S. v. Nelson, 922 F.2d 311 (6th Cir. 1990).
6th Circuit upholds calculation of drugs based on defendant’s statements to probation officer. (770) At defendant’s plea hearing, defendant testified that his long-standing mental disorder was “well-regulated” by certain medication. The judge accepted defendant’s plea after determining that defendant was not under the apparent influence of narcotics and was competent to plead. Immediately after this, defendant met with the probation officer for a presentence interview, and admitted to distributing five or six ounces of cocaine per week. Defendant contended that his statements to the probation officer were unreliable because of his mental problems, and thus should not have been considered by the district court in determining his base offense level. The 6th Circuit rejected this argument. Defendant had testified earlier in the day that his problems were “well-regulated” by medication, and the judge had determined that defendant was competent. Judge Jones, dissenting, argued that the district court incorrectly computed the base offense level by relying on unreliable information. U.S. v. Davis, 919 F.2d 1181 (6th Cir. 1990).
6th Circuit finds no 6th Amendment violation where defendant’s counsel failed to attend presentence interview. (770) Defendant received a two point enhancement for obstruction of justice based upon misrepresentations defendant made in his presentence interview about his involvement in other offenses. Defendant contended that the enhancement was improper, since the presentence interview was conducted without the assistance of counsel in violation of the 6th Amendment. Defendant’s counsel asserted that had he been present during the interview, he would have objected to the questions. Without determining whether defendant had a 6th Amendment right to counsel in the presentence interview, the 6th Circuit found no constitutional violation. Nothing in the record revealed that defendant’s counsel was not informed of, or was excluded from the presentence interview. “When a defendant’s counsel makes a choice not to attend the presentence interview, the defendant cannot argue on appeal that the government deprived him of his [6th Amendment] right to counsel.” Therefore, the upward adjustment was proper. U.S. v. Saenz, 915 F.2d 1046 (6th Cir. 1990).
6th Circuit upholds use of hearsay to determine that defendant used a gun in drug crime. (770) Defendant challenged a two level enhancement based on his possession of a weapon during a drug sale. The government had introduced hearsay testimony that an informant had observed a gun on a nearby table during a drug sale by the defendant to the informant. This evidence was corroborated by defendant’s own admission that he kept guns in the house. The 6th Circuit upheld the introduction of hearsay testimony at the sentencing hearing, and found that the district court’s determination that defendant possessed a firearm was not clearly erroneous. U.S. v. Miller, 910 F.2d 1321 (6th Cir. 1990).
6th Circuit allows district court to consider statements defendant made to probation officer. (770) Sentencing guideline 1B1.8(a) provides that where the government agrees that the information provided by the defendant as an informant shall not be used against the defendant, then such information shall also not be considered in determining the applicable guideline range. Defendant, who had agreed to serve as an undercover informant upon request, challenged the district court’s authority to consider incriminating statements he made to his probation officer. The 6th Circuit rejected defendant’s argument that his statements to the probation officer could be construed as information provided to the government within the meaning of § 1B1.8(a). The 6th Circuit also found that the use of such statements did not violate the 5th Amendment’s protection against self-incrimination, rejecting defendant’s argument that he should have been given a Miranda-type prophylactic warning prior to his presentence meeting with the probation officer. Chief Judge Merritt dissented, on the grounds that the sentencing judge, who had advised the defendant to be candid with the probation officer, had failed to inform defendant adequately of the “grave risks he faced in the presentence report,” and thus violated defendant’s due process rights. U.S. v. Miller, 910 F.2d 1321 (6th Cir. 1990).
6th Circuit reverses because judge failed to resolve factual dispute at sentencing. (770) The 6th Circuit reversed defendant’s sentence because the district court failed to make an express finding on the disputed evidence, and it was clear that the disputed evidence had been relied on in sentencing. The court pointed out that defendant was entitled to resentencing under Rule 32(c)(3)(D) even though he did not allege a due process violation. Thus he did not have to raise “grave doubt” as to the veracity of the information. U.S. v. Mandell, 905 F.2d 970 (6th Cir. 1990).
6th Circuit reverses district court’s finding as to amount of drugs where based on “guess.” (770) Relying on defendant’s girlfriend’s “guess” of 3-4 ounces of cocaine distributed per week, the district court arrived at a median figure of 3-1/2 ounces and then calculated a total amount of “420” ounces of cocaine sold during the period of the conspiracy. The 6th Circuit held that this evidence did not satisfy the “preponderance of the evidence” standard. The girlfriend was admittedly a heavy drug user and subject to periods of memory loss. In addition she admitted that the time period at issue in the case was a “a very hazy time” because of heavy drug usage. She testified that she was pressured into estimating the quantities of drugs, and admitted on cross examination that “it was totally a guess” and that she had “no factual basis” for assigning a number to the quantities of drugs. The court held that the district court’s finding was clearly erroneous. U.S. v. Robison, 904 F.2d 365 (6th Cir. 1990).
6th Circuit vacates sentence that may have been based on information provided by defendant in cooperating. (770) U.S.S.G. § 1B1.8 states that if a defendant cooperates with the government by providing information about unlawful activities of others and the government agrees not to use self-incriminating information against defendant, such information cannot be used in setting the guideline range. Defendant pled guilty to one count of aiding and abetting a false statement in purchasing a firearm and also agreed to provide information concerning the illegal activities of others. The 6th Circuit reversed a departure from the guideline range because it was unclear whether the sentencing court considered the cooperating information in sentencing. On remand, the district court was ordered to state with particularity the extent to which it considered the cooperating information and to disregard it in resentencing the defendant. U.S. v. Robinson, 898 F.2d 1111 (6th Cir. 1990).
6th Circuit upholds consideration of broad sources and types of information in sentencing. (770) The government presented a 1975 information to the court for use in sentencing without first showing it to the defendant. The 6th Circuit held that a sentencing court has broad discretion in determining the sources and types of information to be relied on in sentencing. The burden is on the defendant to show that the information is materially untrue. Since the defendant did not meet that burden, the evidence was properly considered. U.S. v. Maddalena, 893 F.2d 815 (6th Cir. 1989).
6th Circuit finds no double jeopardy violation from use of information both for acceptance of responsibility and to sentence at high end of guidelines. (770) Defendant argued that the district court violated the double jeopardy clause by considering defendant’s statements to the probation department during two phases of sentencing. The information was used to grant a reduction in base offense level for acceptance of responsibility and to impose a sentence at the high end of the guideline range. The 6th Circuit affirmed the sentence, holding that the double jeopardy clause was not implicated because defendant was only tried once for his crimes. U.S. v. Ford, 889 F.2d 1570 (6th Cir. 1989).
7th Circuit holds that mortgage fraud scheme involved sophisticated means. (770) Defendant, a loan officer, was convicted of wire fraud based on his participation in a complex mortgage fraud scheme with several other people. The Seventh Circuit held that the district court did not clearly err in applying a § 2B1.1(b)(10(C) sophisticated means enhancement. The judge noted that, in addition to the many false documents created in support of the loan applications, the scheme involved straw purchasers, false property assessments, verifications of information supplied by attorneys who were prosecuted for their role in the offense, numerous properties in two different states, and a lengthy scheme that evaded detection for a substantial period of time. Defendant forfeited any challenge to the court’s use of information from his co-conspirators’ sentencing. Because defendant did not assert that any of the evidence from his co-schemers’ sentencing hearings was unreliable or that the district court’s view of that evidence was somehow flawed, any error in failing to notify defendant that this evidence would be used was not so prejudicial as to meet the plain error standard. U.S. v. Anobah, 734 F.3d 733 (7th Cir. 2013).
7th Circuit rules defendant possessed eight or more firearms. (770) Wiseman purchased eight firearms. When interviewed by ATF agents, she told them that she had purchased the guns for defendant, who was prohibited from possessing firearms because of prior felony convictions. Defendant was arrested after selling an AK-47 assault rifle to an undercover agent. He pled guilty to being a felon in possession of a firearm. The Seventh Circuit upheld a four-level increase under § 2K2.1(b)(1) based on defendant’s responsibility for nine firearms: the eight purchased by Wiseman, plus the AK-47 he sold to the undercover agent. The court had ample evidence that defendant possessed eight or more guns. It was presented with statements from multiple witnesses on this point, and decided defendant’s testimony that he only possessed three firearms was not credible. The district court’s finding had the support of Wiseman’s statements, both to the government and to the district court at her own change-of-plea and sentencing proceedings. The fact that no government witness on this point other than the undercover agent testified at defendant’s change-of-plea and sentencing hearings did not matter. There was no clear error. U.S. v. Ghiassi, 729 F.3d 690 (7th Cir. 2013).
7th Circuit affirms drug quantity established by preponderance of the evidence. (770) Defendant pled guilty to conspiracy to distribute and possess cocaine with intent to distribute. He challenged the district court’s drug quantity calculation of 15-50 kilograms of cocaine, arguing that the court should have required proof of drug quantity beyond a reasonable doubt. The Seventh Circuit found no error. It is well-established that a preponderance of the evidence is all that is required for a factual finding of drug quantity under the guidelines. Here, 10.5 kilograms were easily accounted for by the 9.5 kilograms found in defendant’s garage, and the one kilogram defendant admitted to in his plea agreement. To reach 15 kilograms, the district court relied on two post-arrest statements made by a Melendez, one of defendant’s buyers, that were contained in defendant’s PSR. Melendez detailed a history of prior dealing with defendant going back to 2001. The panel rejected defendant’s claim that Melendez’s statements were self-serving and unreliable. The statements were corroborated by ample evidence, including cash, jewelry, and drugs found in defendant’s garage. U.S. v. Medina, 728 F.3d 701 (7th Cir. 2013).
7th Circuit relies on cooperating witness’s testimony to determine drug quantity. (770) The same day that defendant and a co-conspirator were indicted on drug charges, Rodriguez was also indicted. Rodriguez had been cooperating with the government against both defendant and the co-conspirator, and he implicated the men in three large quantity cocaine shipments at a quarry in Illinois. Defendant pled guilty to three drug counts, and the district court held him accountable at sentencing for more than 150 kilograms of cocaine. Much of the drug quantity evidence came from the testimony of Rodriguez. The Seventh Circuit held that the district court did not err in crediting Rodriguez’s testimony, which was corroborated by additional evidence, including the large amount of cash and cocaine found at defendant’s house during his arrest. This confirmed that he was a large quantity drug trafficker. Whether to believe Rodriguez’s testimony was a credibility determination that the district court was uniquely situated to make. Nothing in the record cast significant doubt on Rodriguez’s testimony. U.S. v. Hernandez, 731 F.3d 666 (7th Cir. 2013).
7th Circuit upholds reliance on victim impact letter. (770) When defendant, a former police commander, was asked in a civil lawsuit about his office’s practice of torturing suspects in police custody, he lied and denied any knowledge of, or participation in, such torture. He was convicted of obstruction of justice and perjury. At sentencing, the judge briefly discussed a victim impact letter from an unnamed victim who was imprisoned at age 17 for a crime he says he did not commit. The court used this letter to demonstrate how defendant’s crimes had undermined the integrity of our system of justice. The Seventh Circuit found nothing improper about the court’s use of the victim impact letter. The victim impact letters were included in the presentencing information distributed to defendant, and he never specifically challenged the reliability of any of the letters. Moreover, the trial court devoted only a very small portion of a lengthy colloquy to discussing the victim impact letter. U.S. v. Burge, 711 F.3d 803 (7th Cir. 2013).
7th Circuit upholds consideration of probation officer’s confidential sentencing recommendation. (770) During defendant’s sentencing hearing, the district court read from the probation officer’s confidential sentencing recommendation, which noted that defendant had an unusual background given his criminal history, because he was reared in a loving middle-class home, was compliant throughout high school, and was not involved in serious drug use until his late 20’s. The court then said it was not sure if this was a mitigating or aggravating factor. It ultimately sentenced defendant to 168 months, which fell within his advisory guideline range. Defendant argued that the court’s reliance on the probation officer’s confidential sentencing recommendation violated his Fifth and Sixth Amendment rights because he had no opportunity to respond to it. The Seventh Circuit disagreed. Defendant received and had the opportunity to comment on all the facts supporting the probation officer’s analysis. Defense counsel then presented a comprehensive sentencing argument on the basis of those facts. U.S. v. Peterson, 71 F.3d 770 (7th Cir. 2013).
7th Circuit says government has burden to show prior offenses were committed on different occasions. (770) Defendant argued that his 1985 convictions for burglary and robbery were not “committed on occasions different from one another'” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). As a preliminary matter, the Seventh Circuit held that courts may only consider Shepard-approved sources in determining whether prior offenses occurred on separate occasions. The “factually sparse” record here shed insufficient light on whether the 1985 offenses occurred on the same occasion. The district court had ruled that it was defendant’s burden to prove that the offenses occurred on the same occasion, and because he did not do that, he could be sentenced under the ACCA. The Seventh Circuit ruled that this burden-shifting scheme, as set forth in U.S. v. Hudspeth, 42 F.3d 1015 (7th Cir.1994) (en banc), was no longer tenable because it essentially required an ACCA enhancement even if the available Shepard-approved documents were inconclusive. The more appropriate burden allocation requires the government to establish, using Shepard-approved sources, that the prior convictions used for the ACCA enhancement were “committed on occasions different from one another.” If the Shepard-approved documents before a district court are equivocal as to whether the offenses occurred on the same occasion, the ACCA does not apply. U.S. v. Kirkland, 687 F.3d 878 (7th Cir. 2012).
7th Circuit affirms sentence at top of guideline range based on defendant’s 41 arrests. (770) Defendant pled guilty to being in the U.S. after deportation, and was sentenced to 71 months, the top of his advisory guideline range. His principal ground of appeal was that the judge should not have taken into account his 41 arrests that had not resulted in convictions. The Seventh Circuit found no error. Although a sentencing court may not rely on the prior arrest record itself in deciding on a sentence, the court may still consider the underlying conduct detailed in arrest records where there is a sufficient factual basis to conclude that the conduct actually occurred. Of the defendant’s 41 arrests, 26 listed merely the date, the defendant’s age, the charge, the agency making the arrest, and the disposition. With regard to each of the remaining 15 arrests, there was a summary either of a petition for an adjudication of wardship (4 arrests) or of the police department’s arrest report (11 arrests). Since defendant did not question the accuracy of any of the summaries, the judge was entitled to take account of the 15 arrests for which there were summaries in deciding whether to sentence defendant at the top of the guidelines range. Moreover, defendant did not suggest that the other 26 arrests were ungrounded in facts. In light of the defendant’s failure to challenge the accuracy of anything in his lengthy arrest record, the judge was entitled to assume that the 41 arrests considered as a whole, when coupled with the defendant’s five convictions, justified a sentence at the top of the guidelines range. U.S. v. Lopez-Hernandez, 687 F.3d 900 (7th Cir. 2012).
7th Circuit affirms rejection of defendant’s tax-loss expert in favor of IRS tax loss estimate. (770) Defendant, a city councilman, was convicted of tax evasion, voter fraud, and willful failure to file tax returns. The Seventh Circuit upheld the district court calculation of the tax loss, finding that the court properly rejected the testimony of defendant’s tax-loss expert as unreliable, and credited the estimate offered by an IRS special agent. The IRS agent testified that defendant did not keep traditional business books, his financial records were woefully incomplete, and his personal and business bank accounts were commingled, making a precise determination of income impossible. Based on a conservative estimate of gross income, the agent concluded that the tax loss was about $400,000. Defendant’s expert admitted that her attempt to reconstruct defendant’s tax liability was necessarily dependent on the accuracy and truthfulness of the financial information he provided. She also admitted her analysis was incomplete in many respects. U.S. v. Collins, 685 F.3d 651 (7th Cir. 2012).
7th Circuit says plea agreement was not “based on” guidelines, despite prosecutor’s statements. (770) Under Justice Sotomayor’s concurring opinion in Freeman v. U.S., 131 S.Ct. 2685 (2011), a crack defendant sentenced under a binding plea agreement is eligible for a sentence reduction under § 3582(c)(2) based on the retroactive crack amendment only if the agreement expressly relies on a guideline sentencing range. Here, defendant’s agreement made no specific reference to a guideline range. The only link came from the prosecutor’s oral statements at the sentencing hearing. If the written agreement itself had said what the prosecutor told the court—that defendant should receive a discount of one-third to one-half from the bottom of the applicable guideline range—then under Justice Sotomayor’s opinion, the district court could have exercised its discretion to grant relief. However, the Seventh Circuit concluded that such oral statements were not sufficient to allow § 3582(c) (2) relief under Justice Sotomayor’s opinion. U.S. v. Dixon, 687 F.3d 356 (7th Cir. 2012).
7th Circuit permits reliance on government summary charts to establish loss from mortgage fraud scheme. (770) Defendant ran an elaborate fraud scheme involved about approximately 150 fraudulent mortgage loans. At sentencing, an FBI agent presented two charts summarizing the fraudulent loan transactions that could be attributed to defendant’s schemes. The agent made a loss estimate for each transaction by taking the original loan amount for each transaction and subtracting the resale amount for each property. The district court found that the two charts contained reasonable estimates of the losses incurred by the lending institutions. The Seventh Circuit ruled that defendant’s challenge to the loss calculation lacked merit. Defendant presented no evidence that the information contained and summarized in the charts was unreliable or erroneous. Defendant’s counsel had sufficient time and opportunity to fully review all of the information used to prepare the summary charts and did not identify any inaccuracies or errors. The loss calculation method used by the district court – subtracting the sales price for each property from the loan amount – was a reasonable method for calculating loss that has been accepted on previous occasions. U.S. v. Love, 680 F.3d 994 (7th Cir. 2012).
7th Circuit upholds reliance on witness even though judge found parts of his testimony unreliable. (770) The government alleged that defendant managed or supervised an operation in which various couriers transported drugs and money between Chicago, Illinois, and Columbus, Ohio. Defendant challenged the district court’s finding that the criminal activity involved five or more participants, for purposes of a managerial role adjustment under § 3B1.1(b). He contended that the district court’s finding that the two unnamed couriers were participants was based only on unreliable testimony by Aguilera, a cooperating witness. The Seventh Circuit found no error. The situation was distinguishable from U.S. v. Johnson, 999 F.3d 1192 (7th Cir. 1993), where the court rejected an agent’s hearsay testimony that defendant used unidentified teenagers to distribute crack. Aguilera’s testimony was not hearsay. He testified at trial and was subject to thorough cross-examination. Although the judge found other portions of Aguilera’s testimony to be unreliable, the judge was entitled to reject only the specific aspect she found unreliable, while accepting those aspects she found reliable. U.S. v. Smith, 674 F.3d 722 (7th Cir. 2012).
7th Circuit bases tax loss on other tax returns that featured same pattern of deception. (770) Defendant, the owner and operator of a tax preparation business, was convicted of 14 counts of willfully aiding and assisting in the preparation of fraudulent tax returns. The evidence demonstrated a pattern of defendant conjuring up nonexistent charitable contributions, job expenses, and medical expenditures. Defendant argued that the district court should only hold her accountable for the $31,849 in tax loss proven at trial. The Seventh Circuit upheld the court’s finding of a tax loss between $400,000 and $1 million. The PSR identified 662 returns audited by the IRS and prepared by defendant that featured materially false and fraudulent information similar to the fourteen returns at trial. The district court did not clearly err in finding that this evidence supported a pattern of deception attributable to defendant. By excluding from the group of 662 returns all cases where the taxpayer contested their audit, or where no additional tax was due, the government proved by a preponderance of the evidence that the remaining returns reflected defendant’s relevant conduct. U.S. v. Littrice, 666 F.3d 1053 (7th Cir. 2012).
7th Circuit approves use of arrest report to determine whether to vary from Guidelines. (770) Defendant argued that the district court erroneously considered arrest reports, cited in his PSR, in determining his sentence. Under Shepard v. U.S., 544 U.S. 13 (2005), a sentencing court may not consider police reports to determine whether a prior conviction meets the definition of a crime of violence or a controlled substance offense for purposes of classifying a defendant as a career offender. Here, the district court considered the contents of an arrest report, not to classify defendant’s prior convictions, but to conclude that a deviation from the career criminal guidelines was not warranted. The court referenced a 1996 arrest report for unlawful use of a firearm by a felon, which indicated that defendant was arrested on a signed complaint that he struck two female victims in the face and threatened to kill them while menacing them with the pistol. Because the court did not rely on the arrest reports to identify defendant’s qualifying offenses, the Seventh Circuit ruled that it did not run afoul of Shepard. U.S. v. Durham, 645 F.3d 883 (7th Cir. 2011).
7th Circuit upholds reliance on intercepted phone calls to support relevant conduct finding. (770) Defendant was convicted of conspiracy to possess and distribute crack cocaine and related charges. Based on several intercepted phone calls between defendant and a co-conspirator, the district court held defendant accountable for 23 grams of crack. It found that each call evidenced occasions on which defendant purchased drugs and either resold them or intended to, and thus that each constituted relevant conduct under § 1B1.3. The Seventh Circuit held that the district court did not clearly err in concluding that defendant possessed and sold or intended to sell the crack discussed in the intercepted calls. There was also no clear error in the court’s decision that a “pack” referred to one gram of crack, a “basketball” 3.5 grams of crack, and a “quarter pounder with cheese” 7 grams of crack. Other record evidence, including testimony from one of defendant’s co-defendants, and a concession by defendant’s trial counsel, supported the district court’s decision. U.S. v. Johnson, 643 F.3d 545 (7th Cir. 2011).
7th Circuit says claim that records were ambiguous did not shift burden to government. (770) The district court sentenced defendant as a career offender, despite defendant’s claim that two of his prior convictions were not qualifying offenses. Defendant produced signed orders for each offense, and argued that ambiguities in those documents, namely illegible handwriting, called into question the accuracy of the PSR. He argued that producing these documents satisfied his requirement of casting doubt upon the correctness of the convictions in the PSR, and that the burden then shifted to the government to demonstrate the accuracy of the PSR. The Seventh Circuit disagreed. Defendant never testified or alleged that he was not convicted of the crimes with which he was charged. Defendant could have easily produced direct evidence on this issue by simply stating that he was not convicted of the crimes with which he was charged, or that he was actually convicted of a lesser charge. Defendant’s evasiveness failed to meet the more than a “bare denial” requirement needed to shift the burden back to the government. U.S. v. Black, 636 F.3d 893 (7th Cir. 2011).
7th Circuit holds that reliance on arrest reports did not create Shepard problem. (770) The district court sentenced defendant as a career offender based on the PSR’s report of his three prior convictions. Defendant argued that the district court improperly relied on the PSR, which itself relied upon arrest reports and other background documents, to find that the offenses were “controlled substance offenses.” The Seventh Circuit found no error. The fact that defendant’s PSR referenced underlying documents, such as arrest reports, did not create a Shepard problem because each of defendant’s prior drug offenses qualified him for career offender status on its face. Defendant had three prior convictions for possession of a controlled substance with intent to deliver, which met the definition of a “controlled substance offense.” A Shepard problem only arises when a court relies on facts in underlying documents to establish a crime of violence or controlled substances offense. A proper analysis occurs when the court considers “whether the elements of this offense are of the type … without inquiring into the specific conduct of th[e] particular offender.” That was exactly what the district court did here. U.S. v. Black, 636 F.3d 893 (7th Cir. 2011).
7th Circuit rejects extreme upward variance that was based on unfounded speculation. (770) Defendant pled guilty to traveling in interstate commerce to engage in sexual conduct with a minor, 18 U.S.C. § 2423(b). His advisory sentencing range was 57-71 months, but the district court varied upward to sentence him to 240 months. The Seventh Circuit ruled that the sentence was unreasonable. The district court assumed, without any support in the record, that defendant had committed previous undiscovered crimes, and thus was likely to commit more if released. In similar cases where upward variances have been affirmed, there was evidence of a prior underage victim. No similar evidence was here. The judge improperly made a predication about future conduct based on rank speculation about other, multiple instances of deviant behavior. Sentencing determinations must be based on reliable evidence, not speculation or unfounded allegations. U.S. v. Bradley, 628 F.3d 394 (7th Cir. 2010).
7th Circuit reverses where sentencing court relied on non-existent fact. (770) Defendant was convicted of drug and firearms charges. Defendant was born in Mexico, and had entered the U.S. with his family in 1998, pursuant to a lawfully-issued visa. His family left the country in 2002, but defendant remained in the country illegally. At sentencing, the court incorrectly noted several times that defendant had already been deported from the country before and returned illegally to deal methamphetamine. Neither party objected to these statements. The Seventh Circuit reversed, ruling that the district court’s reliance on a non-existent fact affected defendant’s substantial rights and constituted plain error. There was a substantial chance that the district court’s misapprehension played a significant role in the court’s choice of defendant’s sentence. In stating its reasons for the sentence it imposed, the court referred to defendant’s supposed prior removal and reentry into the United States three times. The very first factor the court addressed was the supposed removal and reentry. U.S. v. Corona-Gonzalez, 628 F.3d 336 (7th Cir. 2010).
7th Circuit relies on PSR’s summary of indictment to determine that prior conviction was crime of violence. (770) Defendant received a 16-level enhancement based on the district court’s finding that his prior Illinois conviction for aggravated battery was a crime of violence under § 2L1.2(b)(1)(A)(ii). The Illinois law criminalizes both simple battery, a misdemeanor, and aggravated battery, a felony. The district judge found that an aggravating factor was present by relying on the PSR’s summary of the two-count indictment in the battery case, and on the further statement in the report that defendant had pleaded guilty to both counts. An unsubstantiated summary of an indictment in a PSR does not satisfy the Supreme Court’s requirement of a judicial record and is not, unless its accuracy is unquestioned, a proper basis for classifying a defendant’s prior crimes. Nonetheless, the Seventh Circuit upheld the district court’s reliance on the PSR’s summary of the indictment. Defendant’s lawyer did not question the accuracy of the summary, even though she had access to the indictment. Having not objected in the district court to the summary, defendant could only prevail on appeal by showing that the district judge committed a plain error. U.S. v. Aviles-Solarzano, 623 F.3d 470 (7th Cir. 2010).
7th Circuit upholds drug quantity estimate supported by testimony of four separate witnesses. (770) Defendants argued that their sentences were based on exaggerated drug quantities. Following a two-day sentencing hearing, the judge found that defendant Bowman was responsible for more than 4.5 kilograms of crack and that defendant Cole was responsible for just over two kilograms. Defendants argued that these quantities were based entirely on the testimony of unreliable government witnesses who were to receive lower sentences in exchange for testimony favorable to the government. The Seventh Circuit found no error. The district court’s conclusions were conservative and supported by “a consistent narrative delivered by four separate witnesses who had detailed knowledge of the defendants’ activities.” The district court was entitled to credit that testimony. U.S. v. Etchin, 614 F.3d 726 (7th Cir. 2010).
7th Circuit affirms reliance on statements in the PSR that came from the prosecutor. (770) For the first time on appeal defendant argued that portions of the PSR came from the Assistant United States Attorneys review of the case files and he argued that this violated the general prohibition against a lawyer acting as both counsel and witness in the same case. The Seventh Circuit rejected the argument, noting that defendant waived it by stating at sentencing that he had no objection to the factual findings in the PSR. The court also noted that the AUSA never testified in this case so the prohibition against a lawyer acting as both counsel and witness was not an issue. Moreover, to the extent that the record was lacking in this case, it was only because defendant relieved the government of the burden of introducing the child pornographic photographs and videos into evidence. .S. v. Rodgers, 610 F.3d 975 (7th Cir. 2010).
7th Circuit says court can disregard post-trial factual stipulation of drug quantity, but not here. (770) The district court found, for sentencing purposes, that defendant’s drug conspiracy involved 40 kilograms of cocaine. Defendant argued that the district court improperly rejected a stipulation by the parties that the conspiracy involved five-to-15 kilograms of cocaine. The Seventh Circuit held, as a matter of first impression, that a district court may disregard a post-trial factual stipulation between the defendant and the government regarding the amount of drugs for sentencing purposes. Post-trial drug quantity stipulations should be treated the same as other stipulations of fact, and thus fact-finders have the same authority to accept or reject the stipulation. Here, however, the district court clearly erred when it rejected the stipulation. On the same factual record, the court accepted an identical stipulation between the government and several co-defendants without explaining why it was treating defendant differently. In fact, the court stated that defendant was “similarly situated with regard to the amount of drugs that were involved in the conspiracy.” U.S. v. Barnes, 602 F.3d 790 (7th Cir. 2010).
7th Circuit finds informants’ statements were corroborated by defendant’s phone calls while in jail. (770) After defendant arrested for an outstanding warrant, police found $2500 in cash in his pockets, and a loaded gun in his car. He was convicted of being a felon in possession. At sentencing, the district court varied upward, finding that defendant possessed the gun because he was involved in selling drugs. A drug-detection dog had alerted to defendant’s car (although no drugs were found) and to the money found on defendant. In addition, a confidential informant had told police that defendant regularly traveled to Schaumburg to buy cocaine from “Stan,” and that “Steve” and “Bruce” assisted defendant with drug trafficking. The Seventh Circuit held that the district court did not err in relying on the confidential informant’s statements. The statements were corroborated by phone calls defendant placed from jail to “Steve” and “Bruce” in Schaumburg, asking for bail money. In one conversation, defendant stated: “I got – they caught me with a gun. That’s it. They got me with a gun. That’s it.” It was reasonable to infer that defendant was telling the person that he had been caught only with a gun, not with evidence of other crimes, such as drugs. U.S. v. Mays, 591 F.3d 733 (7th Cir. 2010).
7th Circuit bases loss from vandalism on scientist’s estimate of loss to government experiments. (770) Defendants, members of the Earth Liberation Front, vandalized a government facility where the U.S. Forest Service was conducting genetic engineering experiments on trees. At sentencing, a scientist at the facility estimated a total loss in excess of $420,000 based on the damage caused to two experiments that were destroyed. On appeal, defendants argued that the Forest Service did not suffer a loss because one experiment was terminated and thus worthless. They also argued that the court erred in calculating the loss amount at $424,361 because the evidence presented on the value of the experiments was unreliable. The Seventh Circuit found no clear error in the loss calculation. The scientist testified to the costs associated with the experiments and based these estimates on what he knew from his work on the projects. His testimony and estimates were in accord with the report he prepared a month after the damage. The district court credited the scientist’s testimony. There was no showing that the loss amount was inaccurate. U.S. v. Christianson, 586 F.3d 532 (7th Cir. 2009).
7th Circuit relies on statement by “biased” absent witness to support leadership increase. (770) Defendant was involved in a cocaine conspiracy with Rodriguez and Perez. The Seventh Circuit held that the record supported the district court’s finding that defendant played an aggravating role in the conspiracy. Rodriguez allowed defendant to store two kilograms of cocaine at his house at defendant’s request, in exchange for $100. A drug dealer’s recruitment of an accomplice supports application of § 3B1.1. The district court did not clearly err in finding that defendant’s recruitment of Rodriguez to store the cocaine qualified defendant for the § 3B1.1(c) enhancement. Although Rodriguez did not testify at trial, was a fugitive, and may have been motivated to downplay his own role in the conspiracy, these considerations did not require the district court to reject his post-arrest statements and admissions in his plea agreement. The testimony of a biased witness need not be corroborated by other evidence to justify the district court’s reliance on such testimony. The record also supported the reasonable inference that defendant controlled Perez. Defendant made arrangements with Perez to sell the cocaine and instructed Perez to go to Rodriguez’s house to pick up the cocaine and then return with the money. U.S. v. Mendoza, 576 F.3d 711 (7th Cir. 2009).
7th Circuit remands because court failed to hold government to burden of proof. (770) 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 rules court did not plainly err in relying on screen name to determine that recipient of child porn was under 18. (770) Defendant pled guilty to distributing child pornography. He received a five-level enhancement for distribution of child pornography to a minor, based on numerous emails (containing pornographic movies and still images) that defendant had exchanged with individuals who were under 18 or who defendant believed were under the age of 18. Defendant claimed that there was no evidence in the record that the individuals to whom he distributed child pornography were actually minors, as opposed to individuals posing as minors. The PSR included the screen names of some of the individuals to whom defendant transmitted information, including “Justified Façade-16yo.” The Seventh Circuit affirmed the increase, holding that the district court did not plainly err in relying on the screen name to determine that defendant had distributed the pornography to a minor. Had defendant objected at sentencing, the government would have had the opportunity to further support its position that the recipients included individuals under the age of 18. Because defendant did not, the review was limited to plain error. U.S. v. Wainwright, 509 F.3d 812 (7th Cir. 2007).
7th Circuit upholds reliance on police incident report to show firearm was stolen. (770) Defendant pled guilty to being a felon in possession of a firearm. The district court applied a two-level increase under § 2K2.1(b)(4) because it found that the shotgun recovered from defendant’s house was stolen. Defendant argued that the court improperly relied on a local police incident report showing that a black 12-gauge Mossberg shotgun, the kind of weapon found in defendant’s house, was stolen about two years before his arrest. The Seventh Circuit agreed that this incident report alone was not reliable evidence, but nonetheless affirmed the enhancement. The report stemmed from an unrelated crime that happened two years before defendant’s arrest, and did not provide the serial number for the gun reported stolen. However, it was not the only evidence the government introduced to show that the shotgun found in his house was stolen. A police detective also testified that she undertook an electronic query for the serial number taken from the shotgun found in defendant’s house, and discovered that a black 12-gauge Mossberg shotgun was reported stolen, and that the case remained open with the police department under the same case number designation on the police incident report. The detective’s testimony confirmed the reliability of the incident report. U.S. v. Sanchez, 507 F.3d 532 (7th Cir. 2007).
7th Circuit holds court may consider § 3553(a) evidence unrelated to offense of conviction. (770) Defendant pled guilty to being a felon in possession of a firearm. The firearm involved was a shotgun that defendant had taken with him to go duck-hunting. The government produced evidence at sentencing that defendant was exceptionally violent. The district court relied on this evidence to sentence defendant to 360 months, 67 months above the advisory range of 235-293 months. Defendant argued that the court erred in imposing a sentence above the guideline range based on factors that were not related to his use of the shotgun for duck-hunting. The Seventh Circuit found no error – defendant confused guideline provisions requiring the sentencing judge to make certain factual findings under the guidelines with the factors that may be considered under § 3553(a) in choosing the ultimate sentence. While the “Relevant Conduct” provision in U.S.S.G. § 1B1.3 allows a judge to enhance a defendant’s guideline range only for conduct that is “part of the same course of conduct or common scheme or plan as the offense of conviction,” once the applicable range is determined, the judge’s ability to choose which sentence to impose is not so limited. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court … may receive and consider for the purpose of imposing an appropriate sentence”). U.S. v. Vitrano, 495 F.3d 387 (7th Cir. 2007).
7th Circuit finds intervening case law making form of proof offered at original hearing unacceptable justified admission of additional evidence on remand. (770) Defendant was convicted of being a felon in possession of a firearm. At his initial sentencing, the government introduced an affidavit attached to an information to demonstrate that his prior conviction for criminal confinement was for a crime of violence under § 2K2.1. After that hearing, the Supreme Court decided Shepard v. U.S., 544 U.S. 13 (2005), which made it clear such an affidavit was not an acceptable way of showing that a conviction constituted a crime of violence. At resentencing on remand, the government introduced instead the plea colloquy transcript from defendant’s criminal confinement matter. The Seventh Circuit affirmed. In the past it had been hesitant to allow the government, the party with the burden of proof on a sentencing enhancement, a second opportunity to present evidence in support of an enhancement. However, the panel agreed that intervening case law, which made the form of proof the government had previously offered unacceptable, justified the admission of additional evidence on remand. U.S. v. Hagenow, 487 F.3d 539 (7th Cir. 2007).
7th Circuit upholds use of check register to determine intended loss. (770) To help determine intended loss in a check kiting scheme, the district court relied on a “check register” that detectives found stored in a computer. Defendant argued that the check register should be excluded because it in included “hearsay statements as to dates, amounts, payees,” and it was unreliable because it was unknown what computer hardware or software was used to generate the document, there was no evidence as to how the report was generated, how the dates and check numbers were inserted on the checks, and whether the listed checks were “spoiled checks.” The Seventh Circuit held that the district court properly considered the check register in determining the intended loss. The check register had sufficient indicia of reliability. The government presented evidence that defendant purchased software, and other items that could be used to create counterfeit checks. Fingerprint reports showed that defendant’s prints were on blank and printed check stock found at the conspiracy’s apartment. In addition, the government recovered about $16 million in checks that were intended to go into a bank account in Israel, Defendant’s fingerprints were found on some of these checks. U.S. v. Sliman, 449 F.3d 797 (7th Cir. 2006).
7th Circuit upholds reliance on testimony of drug user. (770) The district court relied on the testimony of McCoy to sentence defendant for possession of more than five kilograms of cocaine. Although McCoy’s testimony contained ambiguities and he was unwilling to answer certain questions, the Seventh Circuit ruled that the testimony was not so unreliable to preclude the court from considering it. Even if the questions the witness refused to answer (concerning his own drug purchases) had been answered in the manner most favorable to the defense, thus establishing that McCoy was a frequent user of drugs and significantly involved in the drug trade, this did not render the testimony unreliable. McCoy’s testimony was bolstered by evidence corroborating his version of events, including phone records, money and drugs seized from defendant’s house, defendant’s prior arrests for drug activity, and a confidential informant’s testimony. U.S. v. Cross, 430 F.3d 406 (7th Cir. 2005).
7th Circuit holds that 160-month sentence for bank robbery was reasonable. (770) Defendant was convicted of bank robbery, in violation of 18 U.S.C. § 2113. The district court departed upward from criminal history IV to VI based on its finding that defendant had committed four other bank robberies. The court also increased his guideline range by one because it found 20 criminal history points, which exceeded the bounds of criminal history category VI. In all, defendant’s guideline range was increased from 84-105 to a new range of 140-175 months, and the court imposed a 160-month sentence. The Seventh Circuit ordered a limited remand under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005) to determine whether the district court would have imposed the same sentence under the advisory guidelines. The district court indicated that it would have imposed the same sentence, and the Seventh Circuit affirmed. The district court acted properly by considering evidence of defendant’s prior crimes. The evidence considered by the court at sentencing (bank surveillance photos, identification by teller, defendant’s own statement, and clothing found at defendant’s residence) was not the type of evidence excluded by the Supreme Court in Shepard v. U.S., 125 S.Ct. 1254 (2005). The 160-month sentence was reasonable. Any sentence that is properly calculated under the guidelines is entitled to a rebuttable presumption of reasonableness. The sentencing range applied by the court provided for a sentence of 140-175 months, and the court imposed a sentence near the center of that range. The sentence was justified by the “egregious nature” of defendant’s criminal record, the court’s finding that he would likely commit future crimes, the need to hold defendant accountable, and the need to protect the community. U.S. v. Welch, 429 F.3d 702 (7th Cir. 2005).
7th Circuit affirms that court can still consider acquitted conduct post-Booker. (770) The Seventh Circuit ordered a limited remand to the district court under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005). The district court found for sentencing purposes that one defendant was a member of the conspiracy despite the fact that jury acquitted him on the conspiracy charge. In U.S. v. Watts, 519 U.S. 148 (1997) the Supreme Court held that a court is permitted to consider a broad range of information for sentencing purposes, including conduct related to charges of which the defendant was acquitted. The Seventh Circuit joined all of other circuits that have confronted the issue in holding that the Supreme Court’s holding in Watts remains the law after Booker. See, e.g. U.S. v. Magallanez, 408 F.3d 672 (10th Cir. 2005). U.S. v. Price, 418 F.3d 771 (7th Cir. 2005).
7th Circuit says court was not required to engage in colloquy before relying on stipulation. (770) Defendant argued that U.S. v. Garrett, 189 F.3d 610 (7th Cir. 1999) requires a sentencing court to specifically find that a stipulation was knowing and voluntary before relying on it to conclude that a substance was crack. Because the stipulation relied on his stipulation without specifically finding that it was knowing and voluntary, defendant argued that his guideline range should have been calculated using the lower base offense level for powder cocaine. The Seventh Circuit disagreed. Garrett does not require a sentencing court to engage in a colloquy with a defendant before relying on a stipulation – defendants regularly stipulate to facts at trial that will increase their sentence if they are found guilty. Garrett does not create a special rule for stipulations concerning crack. Garrett vacated a crack sentence because of uncertainty in the state of the law as to the meaning of the term “ cocaine base” made it impossible to determine the stipulation’s meaning. However, defendant here entered the challenged stipulation six years after the law became clear that cocaine base refers to “crack.” Although the language of the two stipulations was virtually identical, defendant could not have misunderstood its legal effect. U.S. v. Johnson, 396 F.3d 902 (7th Cir. 2005).
7th Circuit remands where court used jury findings from co-defendant’s trial. (770) The district court found that the $11 million investment fraud proved during the trial of co-defendants should be considered relevant conduct at defendant’s sentencing. This ruling resulted in a 15-level sentencing enhancement. The Seventh Circuit found that this ran afoul of Blakely v. Washington, 124 S.Ct. 2531 (2004) as interpreted by U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005). Although the judge based his findings on the jury’s verdict from the co-defendant’s trial, which was beyond a reasonable doubt, he still had to make additional factual findings that went beyond defendant’s admitted conduct. The panel did not determine whether it is proper under Blakely to use jury findings from a co-defendant’s trial at all for sentencing purposes. The judge went beyond the verdict here and made additional findings that significantly raised defendant’s sentence. U.S. v. Loutos, 383 F.3d 615 (7th Cir. 2004).
7th Circuit holds defendant accountable for drugs in untested vial. (770) Police searching defendant’s house found a plastic jug under a bathroom vanity, and transferred the contents to two vials. One vial was tested and found to contain 23.9 grams of methamphetamine. The other vial contained 20.4 grams but was not tested. The Seventh Circuit held that the district court properly included in its drug quantity calculation the 20.4 grams from the untested vial. Both vials were filled at the same time from the same source and the other vial tested positive for meth. A police inspector testified that he personally witnessed the contents of the plastic jug being emptied into the two vials, that both vials were then sealed, and that each was marked with a sticker each time it was transferred to a new location to maintain a chain of custody. The district court also properly included additional amounts of methamphetamine to its calculation based on the testimony of two admitted methamphetamine users who were not prosecuted for their role in defendant’s drug enterprise. Determinations of witness credibility are entitled to great deference. U.S. v. White, 360 F.3d 718 (7th Cir. 2004).
7th Circuit upholds rejection of diminished capacity departure. (770) The district court denied defendant’s request for a downward departure under § 5K2.13 due to her claimed diminished capacity. In support of her claim, defendant submitted the report of a clinical and forensic psychologist. After hearing direct and cross-examination, the district court rejected the expert’s testimony by relying on Federal Rule of Evidence 702, despite the fact that the Federal Rules of Evidence do not apply at sentencing. The Seventh Circuit found that this was an abuse of discretion. A court may admit evidence during sentencing that would not qualify as expert testimony under Rule 702. However, it was clear that despite the judge’s claim of outright rejection, he actually considered the evidence adduced from the expert’s testimony. The court adopted the government’s argument that defendant understood the difference of right from wrong and the truth from a lie. This was testimony that was uttered by defendant’s expert and no one else. After reviewing the arguments, records and evidence, the panel concluded that the judge found the expert testimony to be insufficiently probative to support the departure. U.S. v. Ferron, 357 F.3d 722 (7th Cir. 2004).
7th Circuit says court was not required to exclude conviction government failed to include in pretrial report. (770) Defendant challenged the use at sentencing of one of his prior state convictions that was not disclosed by the government before trial in response to his Federal Rule of Criminal Procedure 16 request for pretrial disclosure of his criminal record. While the government had no explanation for why the Ohio conviction was not in the pretrial report, Rule 16 does not mandate that the court suppress or exclude the prior conviction as a sanction for a Rule 16 violation. Rule 16(d)(2) provides that a court “may,” but is not required to impose sanctions including ordering disclosure, granting a continuance, prohibiting admission of the evidence, or any other response deemed necessary. Moreover, an appellate court will not disturb a ruling on a motion for Rule 16 sanctions absent a showing of prejudice. Here, defendant was not prejudiced by the court’s failure to disclose his Ohio convictions before trial, because defense counsel acknowledged that he received the PSR well in advance of sentencing. Thus, he could have asked for a continuance of sentencing in order to seek post-conviction relief for the Ohio conviction. Accordingly, the Seventh Circuit held that the district court did not abuse its discretion in denying defendant’s motion to exclude the prior conviction for sentencing purposes. U.S. v. Breland, 356 F.3d 787 (7th Cir. 2004).
7th Circuit relies on defendant’s admissions to support increase for possessing gun in connection with sale of marijuana. (770) Defendant was convicted of being a felon in possession of a firearm, and received a four-level increase under § 2K2.1(b)(5) for possessing a firearm in connection with the sale of marijuana. Defendant signed a statement admitting that he smoked marijuana and sometimes obtained enough “to make a little money to pay for rent and still have enough to get high myself.” He also admitted that his last legitimate job was three years before his arrest. In the same statement, he acknowledged that he kept a handgun for protection and had it with him numerous times. Defendant was arrested in the basement of his brother’s house with trace amounts of marijuana and a marijuana grow book. The Seventh Circuit affirmed the increase, since this evidence supported a finding that defendant sold marijuana using his gun for protection. Although there was no direct evidence showing that defendant personally was engaged in drug sales, it was not clearly erroneous for the judge to conclude that defendant’s incriminating statements should be credited. U.S. v. Morris, 349 F.3d 1009 (7th Cir. 2003).
7th Circuit says post-arrest statement was not protected by § 1B1.8 but was insufficient to support drug quantity finding. (770) Shortly after his arrest, defendant agreed to “cooperate” with law enforcement officers, and gave a statement saying that he was selling $100 to $200 worth of crack “off and on for approximately a year.” Defendant never entered into a formal cooperation agreement, and whatever help he gave was a little value. Defendant argued that his post-arrest statement was protected under U.S.S.G. § 1B1.8 and thus could not be used against him at sentencing. The Seventh Circuit held that the post-arrest statement was not protected by § 1B1.8, but nonetheless found the statement insufficient to support the district court’s finding of 50-100 grams of crack. Other than the 3.37 grams of crack seized from defendant at the time of his arrest, no other evidence of drug dealing was in the record apart from the critical statement in question. Defendant’s limiting “off and on” description of his prior dealing was too vague upon which to rest a finding that he sold between 50 and 150 grams. If he was “off” much or most of the time, that range was too high a point to use as the basis for his sentence. U.S. v. Clemons, 349 F.3d 1007 (7th Cir. 2003).
7th Circuit holds that defendant’s incriminating statement was sufficiently reliable to consider relevant conduct. (770) Eleven hours after his arrest, defendant made a statement to police in which he admitted that he had sold certain quantities of crack cocaine in the past. Based on his admission of relevant conduct, the district court held him accountable for more than 1.5 kilograms of crack. Defendant challenged the reliability of his statement, offering witnesses who testified that defendant may have been suffering from heroin withdrawal and desperate for more drugs at the time he made his statement. The Seventh Circuit upheld the court’s reliance on defendant’s statement. Defendant’s heroin addiction did not make his statement inherently unreliable. Defendant did not testify on his own behalf, and the officers who arrested defendant and took his confession testified that he did not appear to be going through withdrawal at the time he confessed. They further stated that while defendant was willing to incriminate himself, he was unwilling to give the name of his drug supplier to the interrogating officer. The district court concluded that while the testimony offered by defendant was helpful in explaining the progression of opiate withdrawal, it did not override the officers’ testimony that defendant did not appear to be going through withdrawal at the time he made his statement. U.S. v. Johnson, 342 F.3d 731 (7th Cir. 2003).
7th Circuit upholds reliance on witness testimony to calculate drug quantity. (770) The district court found that defendant was responsible for between 50 and 150 kilograms of cocaine. The Seventh Circuit found no error. Based on the evidence that more than 44 kilograms were purchased from Herrera, five kilograms from Llanos, more than one kilogram from Ginjuama, and the estimated street taxes paid to Marisol during the 138 weeks of this conspiracy, the district court made a conservative calculation. The panel also rejected defendant’s claim that the court’s reliance on the witness testimony somehow violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi does not affect calculations of relevant conduct or other guideline determinations for sentences that fall within the statutory maximum. In addition, credibility questions are for the trier of fact to resolve. U.S. v. Souffront, 338 F.3d 809 (7th Cir. 2003).
7th Circuit says court erred in departing upward without determining reliability of uncorroborated evidence. (770) The district court originally departed upward from Criminal History Category II, but in U.S. v. Angle, 234 F.3d 326 (7th Cir. 2000), the Seventh Circuit vacated the sentence because the district court neglected to explain why the departure was warranted. On remand, the district court again departed upward without ruling on the reliability of uncorroborated molestation allegations and failing to explain why defendant’s criminal history was more comparable to Category VI. Once again, the Seventh Circuit vacated and remanded for resentencing. The government offered evidence in the PSR that defendant had sex with a 14-year old boy in Georgia, possessed child pornography in Mexico, sent a Valentine’s card to a child he met at a gym, took a shower with an unrelated 12-year old boy, and molested numerous children. The court did not make findings regarding the reliability of this evidence. Because these alleged incidents of molestation were uncorroborated, the district court was required to make specific findings regarding the reliability of the evidence before it used the evidence to support an upward departure. Furthermore, the court found that defendant was more comparable to a Category VI criminal without discussing whether defendant had committed three crimes of violence, a required element of a Category VI criminal. U.S. v. Angle, 315 F.3d 810 (7th Cir. 2003).
7th Circuit upholds reliance on jury’s special verdict to determine drug quantity. (770) A jury convicted defendant of drug charges. The jury also returned a special verdict finding that at least 50 grams of a substance containing methamphetamine was attributable to defendant regarding the conspiracy. The district court remarked “I need only find by a preponderance of the evidence that [the relevant drug quantity] was at least 50 grams and I do so, but I think the jury verdict is conclusive in this matter beyond a reasonable doubt.” Defendant noted that the judge, not the jury, determines relevant conduct for sentencing purposes. The Seventh Circuit found that it was not improper for the judge to rely on a jury’s finding of drug quantity when making relevant conduct findings, given the wide range of evidence that judges may consider when making such findings. So long as there is a finding by a preponderance of the evidence that the defendant has engaged in relevant conduct, judges are entitled to consider a wide range of factors when determining an appropriate sentence. U.S. v. Bequette, 309 F.3d 448 (7th Cir. 2002).
7th Circuit upholds court’s finding of larger drug quantity than jury. (770) Defendant noted that the government put on evidence suggesting that he conspired to distribute several hundred kilograms of marijuana, yet the jury convicted him of an amount less than 50 kilograms. He argued that this disparity was a product of the jury necessarily discounting the credibility of government witnesses. Since the district court’s finding of 100 kilograms of marijuana rejected the collective wisdom of the jury and its implied credibility findings, defendant argued that the district court committed clear error. The Seventh Circuit rejected this argument. The district court’s relevant conduct findings for sentencing purposes are governed by a less demanding evidentiary standard than are findings by the jury. Credibility determinations by the district court using the preponderance standard cannot be challenged on appeal unless the court credited testimony that was essentially unbelievable as a matter of law. Defendant failed to identify any factor in the record that would render the testimony of the government witnesses essentially unbelievable. The fact that some of the testimony was internally conflicting did not, by itself, support a finding of clear error. U.S. v. Smith, 308 F.3d 726 (7th Cir. 2002).
7th Circuit affirms firearm increase based on testimony that defendant brandished gun during drug buys. (770) A government informant testified at sentencing that he purchased drugs from defendant for about one and one-half year prior to the sting operation in which defendant was arrested. On two of these occasions, defendant emerged from his bedroom brandishing a gun. The witness told the drug unit officers about the gun before they searched defendant’s home, and the officers found a gun in a box under the bed in the bedroom shared by defendant and his wife. Defendant denied ownership of the gun and claimed not to know that it was under his bed. He also testified that he never brandished a gun in the informant’s presence. Nonetheless, the Seventh Circuit affirmed a § 2D1.1(b)(1) firearm increase based on the informant’s testimony that defendant brandished the gun during two drug buys. The informant told the drug unit officers that they should look for a .380 handgun in defendant’s bedroom. This testimony was corroborated when the police officers in fact found a .380 gun under defendant’s bed. The court was entitled to credit the informant’s testimony over that of defendant and his wife. U.S. v. Willis, 300 F.3d 803 (7th Cir. 2002).
7th Circuit holds that PSR’s summary of police report did not support drug quantity finding. (770) The district court attributed 65 ounces of cocaine to defendant based on Jobe’s statement to police that defendant bragged to him about selling cocaine at strip clubs five nights a week for over a year. However the police report of Jobe’s statement was not before the court at sentencing. The court relied on the PSR’s summary of the agent’s report, which stated only that “Jobe believed that [defendant] went to the strip clubs at least 5 days a week. [Defendant] claimed to have sold cocaine to the strippers in this fashion for over one year.” On defendant’s first appeal, U.S. v. Noble, 246 F.3d 946 (7th Cir. 2001), the Seventh Circuit rejected defendant’s drug quantity challenge, believing that the frequency and duration of the sales was supported by Jobe’s testimony at trial. On his second appeal, the Seventh Circuit acknowledged that it had been mistaken. While Jobe did testify about defendant’s sales when he accompanied defendant to strip clubs, there was no testimony about sales when he did not. Jobe did not testify at trial or sentencing to the admissions purportedly made by defendant about quantities he sold when Jobe was not with him; nor did the agent to whom Jobe made the statement testify to the accuracy of the PSR summary or the agent’s written report of his interview with Jobe. The only evidence was the statement in the PSR that Jobe “believed” that defendant sold a certain amount of drugs at strip clubs, with no indication from the PSR or anything in the record of the source or reliability of that belief. Under these circumstances, the district court’ calculation of 65 ounces was clear error. U.S. v. Noble, 299 F.3d 907 (7th Cir. 2002).
7th Circuit upholds reliance on hearsay to support drug relevant conduct. (770) Defendant challenged three separate quantities of drugs found by the court to be relevant conduct. The Seventh Circuit found no error. The 10,000 pounds added as a result of Czajka’s testimony was proper because the drugs were part of the same common scheme and plan as the charged offense. The later transactions occurred immediately after this transaction, involved the same dealers, and used the same method (delivery by semi-truck). The court properly attributed 12,000 pounds based on Lopez’s testimony that defendant had told him that he regularly moved large quantities of marijuana – two to three thousand pounds every two to three months. The court found Lopez credible despite vigorous cross-examination. The 75,000 gleaned from Fernandez’s proffer was more troubling because the evidence the district court relied on was hearsay. However, although the 75,000 pounds accounted for a large portion (77%) of the total drug quantity, that amount added only two points to his offense level, and increased his guideline range from 235-293 months to a range of 292-365 months. Defendant could have received the same 293-month sentence that he actually received without taking into account the 75,000 pounds. The mere fact that the court relied on hearsay to calculate a higher offense level was not clear error. U.S. v. Martinez, 289 F.3d 1023 (7th Cir. 2002).
7th Circuit relies on hearsay that defendant participated in witness intimidation. (770) After determining that Templin had informed on him, Matias and defendant visited Templin at home. Templin’s roommate answered the door and defendant restrained her while Matias confronted Templin. Defendant challenged a § 3C1.1 obstruction of justice increase, arguing that there was no direct proof that he was at the residence, because Templin only relayed what her roommate told her happened and did not see defendant herself. The Seventh Circuit found no error. The Federal Rules of Evidence do no apply at sentencing hearings, and the judge may consider information that would not be admissible at trial, including uncorroborated hearsay. The district court found that defendant attempted to obstruct justice by aiding and abetting Matias’s efforts to intimidate Templin, and by restraining Templin’s roommate. The court’s findings were sufficient to support the increase. U.S. v. Martin, 287 F.3d 609 (7th Cir. 2002).
7th Circuit refuses to upset relevant conduct finding based on assessment of witness credibility. (770) The district court’s drug quantity findings were based on the district judge’s decision to believe two persons who testified about their dealings with defendant. One witness testified that she had accompanied defendant on two trips to buy cocaine and then transported drugs for him. The second witness testified that defendant had traded a gun for crack. Findings based on the judge’s assessment of the credibility of witness are “all but impossible to upset.” Moreover, the facts suggested that defendant received a break. The 397 grams of crack that the district judge found to be defendant’s relevant conduct represented just two transactions about which the first witness testified. Although the evidence at sentencing showed that defendant conducted a drug-distribution business, the full scope of which must have exceeded 500 grams, his sentence was based on the range of 150-499 grams. Accordingly, the Seventh Circuit agreed with counsel that there was no non-frivolous objection to the calculation of defendant’s guideline range, and granted counsel’s request to withdraw. U.S. v. Knox, 287 F.3d 667 (7th Cir. 2002).
7th Circuit holds that evidence supporting increase for pattern of sexual abuse of minor was reliable. (770) Defendant received a § 2G2.2(b)(4) increase for engaging “in a pattern of activity involving the sexual abuse or exploitation of a minor” based on three alleged incidents. In 1987, a mother reported the sexual abuse of her four-year old daughter by defendant. The government introduced at sentencing an audio recording of the mother’s statement. The second incident consisted of similar misconduct involving the same four-year old girl. The only evidence of it, however, was the mother’s statement during the investigation that her daughter said that defendant had previously had touched her in the same way. Finally, a police report indicated that an 8-year old girl told police that defendant had “picked at” her genitalia while he was babysitting several years earlier. The Seventh Circuit held that the district court did not abuse its discretion findings this evidence sufficiently reliable to support the increase. Defendant did not contest the reliability of the first instance; in fact he was convicted of first degree sexual assault as a result. While the evidence of the second incident was more suspect, the court recognized its weakness and found it was reliable only to the extent of establishing one additional instance of sexual assault. The government was only required to establish two instances of sexual abuse to show “a pattern” of activity. U.S. v. Polson, 285 F.3d 563 (7th Cir. 2002).
7th Circuit relies on hearsay to support gun enhancement. (770) Police arranged for a confidential informant to make a controlled drug buy from defendant. The government’s sole evidence in support of a § 2D1.1(b)(1) firearm increase was Detective Pointer’s testimony that immediately after completing the controlled drug purchase, the informant told him that defendant pointed a gun at him and threatened him. Although this testimony was hearsay, the Seventh Circuit held that it bore sufficient indicia of reliability to support the enhancement. First, the timing of the informant’s statement to the detective supported the statement’s reliability. Further, the informant’s statement was consistent with his other statements to the detective and with the rest of the evidence in the case. For example, another witness testified that on several occasions, she saw defendant at a crack house where she often saw guns. Finally, the fact that police did not find any weapons at the house when they later arrested him was not important. The issue was whether he possessed a gun during the relevant conduct, not whether he possessed a gun when he was arrested. U.S. v. Smith, 280 F.3d 807 (7th Cir. 2002).
7th Circuit says court may use reliable hearsay if there is opportunity to rebut it. (770) Under U.S. v. Payton, 198 F.3d 980, 983 (7th Cir. 1999), a sentencing court may consider hearsay evidence so long as it is reliable and the defendant has the opportunity to rebut it. Here, the district court relied on an agent’s hearsay testimony regarding defendant’s alleged assault on his co-defendant. The Seventh Circuit held that this testimony had indicia of reliability because it was corroborated by defendant’s admission that he had an argument with the co-defendant about the co-defendant’s proffer that defendant had sold crack cocaine. Further, defendant offered no evidence to rebut the agent’s testimony, despite having the opportunity to do so. His attorney’s denial of the attack did not constitute evidence. Therefore the district court did not clearly err in crediting the agent’s hearsay testimony. U.S. v. Mayberry, 272 F.3d 945 (7th Cir. 2001).
7th Circuit rules that court made adequate findings to support use of relevant conduct. (770) Defendant objected to the unsubstantiated proffer statements upon which the PSR and the district court relied in assessing his relevant drug conduct. He also claimed that the court did not state and support its findings that the uncharged conduct bore the necessary relationship to the offense of conviction. The Seventh Circuit found no error. The judge very carefully considered both the factual and legal basis for his findings on relevant conduct. The uncharged conduct involved the same drug as the charged conduct, and occurred generally over the same time frame as the charged conduct. The court accepted the government’s portrayal of the evidence in support of the relevant conduct with one exception, refusing to include the vast majority of cocaine that Smith attributed to defendant. The court properly found that the other amounts detailed in the PSR were sufficiently related to the offense of conviction. Defendant was continuously involved in cocaine sales throughout the 1990s, except for a period of time he was incarcerated, and the sales mainly took place in the same area of Illinois. The court explicitly stated how it calculated drug quantity, which testimony it was accepting, which it was rejecting, and why. Although the court did not expressly state that the events were related in time, place and persons involved, its discussion of the evidence demonstrated that these factors were well satisfied. U.S. v. Williams, 272 F.3d 845 (7th Cir. 2001).
7th Circuit upholds reliance on inconsistent hearsay testimony. (770) The bulk of the 10.9 kilograms of cocaine that the judge attributed to defendant rested on a single piece of evidence—Zamora’s testimony that defendant told him he had received ten, one kilogram quantities of cocaine from his unidentified supplier in the months preceding his arrest. Defendant argued that Zamora’s testimony was unreliable because there were inconsistencies in Zamora’s testimony and no independent evidence corroborating defendant’s statement, which defendant denied having made. Notwithstanding the inconsistencies in Zamora’s testimony, the Seventh Circuit found no clear error in the district court’s drug quantity finding. The fact that there was no evidence corroborating Zamora’s testimony as to the amounts of cocaine defendant said he received did not preclude the judge from relying on it. No one was more qualified than defendant himself to put a number on the amounts of cocaine he was purchasing and reselling, and Zamora was simply recounting what defendant told him in this regard. Whether or not to believe Zamora called for a credibility assessment that the district judge, having heard both defendant and Zamora testify, was uniquely situated to make. The inconsistencies in Zamora’s testimony, while not unimportant, were exposed at sentencing and no doubt considered by the judge. U.S. v. Contreras, 249 F.3d 595 (7th Cir. 2001).
7th Circuit says marshal’s recitation of gang member’s statement not sufficiently reliable to support drug finding. (770) At sentencing, Deal described five occasions when he bought 1.7 grams of crack from defendant, and testified about several other ounces of crack he saw defendant carrying during those transactions. Branscomb testified that defendant sold crack outside Branscomb’s house “about every day during the year of 1998 and 1999.” Finally, a deputy U.S. marshal testified that Griffin told the marshal that he received two ounces of crack from defendant and had seen him in possession of seven or eight ounces of crack. The Seventh Circuit agreed that the 98 grams attributed to defendant through Deal and the 14 grams attributed through Branscomb was supportable. However, it had “serious misgivings about the huge amount, 241 grams, piled on defendant” through a marshal’s recitation of a statement given to him by Griffin, who did not personally testify at sentencing. First, the matters related by Griffin were remote in time—over two years old—to the sales to Deal that formed the basis for the counts of conviction. Second, the district court did not make any specific findings as to Griffin’s reliability. Given this “serious concern,” a finding of “more than 150 grams” was clearly erroneous. U.S. v. Palmer, 248 F.3d 569 (7th Cir. 2001).
7th Circuit upholds use of larger estimate despite witness’s memory lapses. (770) Defendant challenged the district court’s decision to attribute 100 ounces of cocaine to him based on Spaeth’s testimony. In a police interview, Spaeth estimated that the drug quantity was 50 ounces, but under oath at sentencing, Spaeth estimated that the quantity was 100 ounces. Given the district court’s cursory review and Spaeth’s poor memory, the Seventh Circuit found the issue close, but nonetheless affirmed the use of the 100-gram estimate. Spaeth explained that the first estimate was in a discussion with officers, but “[w]hen it came time to have it written down legally, I realized it was more.” Further, Spaeth provided the court with particulars that bolstered the 100-ounce estimate. Since the burden at sentencing is merely a preponderance of the evidence, and the experienced judge was aware of Spaeth’s memory lapses, there was no error. The panel also upheld the court’s reliance on Jobe’s testimony that defendant possessed 65 ounces of cocaine. Jobe’s testimony was partly based on firsthand knowledge. He accompanied defendant to strip clubs for the purpose of selling cocaine, and on each occasion, he watched defendant sell between 1/2 to 1 ounce of cocaine. Jobe also testified that defendant admitted to selling cocaine at the strip clubs five nights a week for over a year. Although Jobe was a convicted felon and an admitted drug user, the district court was entitled to credit testimony from people with Jobe’s “credentials.” U.S. v. Noble, 246 F.3d 946 (7th Cir. 2001).
7th Circuit upholds use of inadmissible hearsay to establish drug quantity. (770) After ruling that co-conspirator Abeln’s hearsay statement to the police was improperly admitted into evidence at trial, the Seventh Circuit held that the statement was properly considered by the court at sentencing. The standard for admission at sentencing, “sufficient indicia of reliability” is somewhat less stringent than the standard for admission at trial, requiring “particularized guarantees of trustworthiness.” Abeln’s statement that he transported eight kilograms of cocaine was clearly against his self-interest—not only did it subject Abeln to criminal prosecution, but it also subjected him to the possibility of a life sentence under 21 U.S.C. § 841(b)(1)(a). The statement was also consistent with his other statements made by Abeln. Further, the testimony of Abeln and another conspirator, coupled with the numerous phone calls between defendant and a residence in Texas, established defendant’s knowledge of, and participation in, a conspiracy that involved numerous flights to Texas to import drugs into the St. Louis area. U.S. v. Westmoreland, 240 F.3d 618 (7th Cir. 2001).
7th Circuit finds plain error under Apprendi where drug quantity evidence was inadmissible at trial. (770) The issue of drug quantity was not mentioned in the jury instructions, but the drug quantity found by the sentencing judge subjected defendant to a sentence that exceeded the 20-year statutory maximum in § 841(b)(1)(C) for an unspecified quantity of cocaine. Thus, defendant’s rights were violated by the court’s failure to submit drug quantity to the jury. See U.S. v. Rogers, 228 F.3d 1318 (11th Cir. 2000) (relying on Apprendi v. New Jersey, 530 U.S. 466 (2000). Because a key piece of drug quantity evidence was inadmissible at trial, the Seventh Circuit ruled that the Apprendi error affected defendant’s substantial rights, i.e. it “affected the outcome of the district court proceedings.” Two pieces of evidence supported the district court’s drug quantity determination: 550.9 grams of cocaine found in defendant’s car, and eight kilograms that a co-conspirator, in his confession to the police, claimed to have imported. However, the co-conspirator’s confession was improperly admitted into evidence at trial and thus should not have been before the jury. The only drug quantity evidence that the jury could properly consider was the 550.9 grams found in defendant’s car, a quantity allowing for a sentence of five to 40 years under § 841(b)(10(B), but not defendant’s life sentence. U.S. v. Westmoreland, 240 F.3d 618 (7th Cir. 2001).
7th Circuit holds that testimony of expert witnesses supported reliance on drug notes. (770) The district court found that defendant’s relevant conduct included the 5.1 kilograms of cocaine reflected in her drug notes. This conclusion was based on testimony given by two government witnesses. The first witness was a DEA agent who had been involved in hundreds of drug investigations. The other witness worked with drug trafficking records, was responsible for keeping the DEA’s log on the street price of cocaine, and taught seminars on drug notes. Both witnesses testified that the references in the drugs notes to “w” were to cocaine, confirmed for them by the dollar amounts listed in the adjacent column on the page, figures that corresponded to the current street price for cocaine. Although a handwriting comparison was not performed, the notebooks were in defendant’s possession when she was arrested. One witness testified that drug dealers typically keep their drug notes readily available. Moreover, on the day of defendant’s arrest, she admitted that the notebooks were drug records, although she claimed that they reflected her supplier’s transactions. The Seventh Circuit upheld the district court’s decision to credit the testimony of the expert witnesses over defendant’s claims. No fact directly contradicted the witnesses’ testimony. U.S. v. Huerta, 239 F.3d 865 (7th Cir. 2001).
7th Circuit upholds increase for possession of automatic weapon. (770) Defendant, convicted of being a felon in possession of a firearm, received a § 2K2.1(a) enhancement based on his possession of an automatic weapon. The Seventh Circuit found the testimony of defendant’s wife and son sufficient to support the enhancement. Although defendant claimed that his wife and son were not credible because the wife was estranged from him and was granted immunity from prosecution, this was not enough to overturn the district court’s credibility determination. Although defendant claimed that the witnesses did not know what an automatic weapon was, both witnesses testified that defendant possessed a weapon that could shoot multiple bullets with one pull of the trigger. The son testified that defendant had told him the difference between a semi-automatic weapon and a fully automatic weapon. The relevant conduct had sufficient similarity, regularity and temporal proximity to the offense of conviction. Witnesses testified to the existence of the gun, as part of defendant’s extensive and regular gun collection, just prior to the police search. U.S. v. Ofcky, 237 F.3d 904 (7th Cir. 2001).
7th Circuit upholds reliance on testimony with minor inconsistencies from witnesses with motives to lie. (770) The first sentencing judge found that defendant had murdered Fenner in the course of a drug conspiracy. Accordingly, she cross-referenced the murder guideline, which resulted in a mandatory life sentence. See USSG § 2D1.1(d)(1). After defendant was convicted a second time on remand, the second judge also determined that defendant was responsible for Fenner’s murder. The second judge’s determination rested in part on the first judge’s finding, but additionally and independently on his own review of the pertinent evidence. Defendant argued that the government’s witnesses were so impaired that their testimony was unreliable as a matter of law, and therefore insufficient to support the second judge’s findings. The Seventh Circuit held that the judge could properly rely on the government witnesses, however “undistinguished” they were. The three key witnesses each had motives to lie, and their accounts of the Fenner murder were not wholly consistent in the details. “The district judge, as the finder of fact, would have been free not to credit their testimony. But the credibility determinations were his to make, and he chose to believe these witnesses.” Thus, although there were some inconsistencies (for example, as to where the victim’s body was disposed of), the discrepancies were not so serious as to render the basis proposition on which they all agreed—defendant shot Fenner at the Osseo farm—implausible. U.S. v. Meyer, 234 F.3d 319 (7th Cir. 2000).
7th Circuit relies on witness testimony of additional drug sales. (770) The district court held defendant accountable for 3735 grams of methamphetamine based on drugs found in a search of defendant’s residence, Cooke’s testimony, and Neumann’s statement regarding meth that he purchased from defendant. Although defendant argued that Cooke’s testimony was inconsistent and contradictory, its reliability was bolstered by the fact that he testified in person at sentencing and was corroborated by another witness. The testimony also was internally consistent (at one point Cooke stated that he purchased meth from defendant a couple of times a month, and at another point he said he obtained meth every couple of weeks from defendant). Given that the testimony was corroborated by the testimony of a former customer of defendant’s, the Seventh Circuit held that the district court did not clearly err in including drugs amounts based on Cooke’s testimony. Although Neumann, who claimed to have purchased drugs from defendant, did not testify in person at sentencing, hearsay evidence is permissible at sentencing. Although Neumann’s statement was uncorroborated, a court may credit testimony that is “totally uncorroborated and comes from an admitted liar, convicted felon, [or a] large scale drug-dealing, paid government informant.” The district court’s reliance on the sales to Neumann was proper. U.S. v. Berthiaume, 233 F.3d 1000 (7th Cir. 2000).
7th Circuit relies on conspirator’s interpretation of coded conversation to support gun increase. (770) The government introduced 188 tapes of conversations concerning a drug conspiracy into evidence. The recorded conversations were all in code and street slang, but Griffith, a cooperating conspirator, deciphered them for the jury. In one of the audio tapes, Griffith identified himself and defendant as the speakers. He explained that he said he had a .380 and defendant responded “I know, I got something too.” Defendant referred to a “zero.” Griffith said that these statements referred to guns possessed by both him and defendant. The Seventh Circuit affirmed a § 2D1.1(b)(1) firearm enhancement, holding that the district court properly found Griffith credible, and inferred from these tapes that either defendant possessed a gun to further the drug conspiracy, or that Griffith possessed it and his possession was reasonably foreseeable to defendant. U.S. v. Cavender, 228 F.3d 792 (7th Cir. 2000).
7th Circuit holds defendant accountable for co-conspirators’ restraint of drug supplier. (770) Defendant’s PSR stated that two co-conspirators tried to restrain a drug supplier whom they were trying to rob, and that they bound the supplier’s girlfriend with duct tape. The district court relied on the PSR to apply a § 3A1.3 increase for physical restraint of a victim. The Seventh Circuit upheld the district court’s reliance on the PSR to apply the § 3A1.3 increase. District judges routinely rely on the information contained in PSRs, which they are entitled to do as long as the report bears the requisite indicia of reliability. Defendant pointed to nothing that would indicate that the information in this report failed that test. Although defendant was not personally involved in the incident of physical restraint, he was liable for the reasonably foreseeable acts of his co-conspirators in furtherance of the conspiracy. U.S. v. Cavender, 228 F.3d 792 (7th Cir. 2000).
7th Circuit upholds reliance on felons’ testimony to determine drug quantity. (770) Defendant argued that the evidence of his relevant conduct was not sufficiently reliable. He pointed to discrepancies in the testimony of the witnesses and to the fact that the witnesses were drug-using felons who were receiving reductions in their own sentences in exchange for testifying against defendant. The district court heard these facts and found the testimony to be credible. The court detailed how it determined the amount of drugs attributable to defendant for his relevant conduct. The court’s findings were based on witnesses’ testimony that it found credible; no facts directly contradicted the witnesses’ testimony, and aspects of the testimony were corroborated by other sources. Because the evidence underlying the witnesses’ testimony had a sufficient indicia of reliability, the Seventh Circuit upheld the district court’s drug quantity calculation. U.S. v. Johnson, 227 F.3d 807 (7th Cir. 2000).
7th Circuit relies on co-conspirator’s testimony from trial of co-conspirators. (770) Defendant argued that the judge improperly relied on the transcripts of statements made by Palmer, an unindicted co-conspirator, who testified during the trial of defendant’s co-conspirators. Palmer’s testimony linked defendant to 3.5 kilograms of heroin. Although the judge found this amount to be conservative, defendant argued that the testimony was untrustworthy. The Seventh Circuit found no error in the court’s reliance on Palmer’s testimony. The testimony was detailed, based upon personal knowledge, and subject to a thorough cross-examination by three attorneys acting on behalf of defendant’s co-conspirators, resulting in almost 100 pages of trial transcript. These attorneys vigorously cross-examined Palmer at trial, grilling him extensively on topics like his potential bias, his deal with the government, his own heroin dealing, his involvement in insurance fraud, and so on. Palmer testimony regarding defendant’s participation in the conspiracy was consistent with, and supported by, other testimony presented at defendant’s trial. Finally, defendant never presented any evidence contradicting Palmer testimony that he was responsible for 3.5 kilograms of heroin. U.S. v. Dikeocha, 218 F.3d 706 (7th Cir. 2000).
7th Circuit says status as government witness and drug dealer did not make testimony unreliable. (770) Defendant purchased bulk quantities of methamphetamine from two suppliers, Brown and Christiansen, and resold it to individuals purchasers. Brown testified that defendant purchased 81 ounces of meth from him; defendant contended that he purchased only six ounces. The Seventh Circuit upheld the district court’s reliance on the drug supplier’s testimony. Brown’s status as a government witness and a drug dealer did not sufficiently import bias so as to undermine the reliability of his testimony. The “inconsistencies” defendant targeted were unimportant. For example, although Brown did not specifically detail his two-week break in dealing to defendant while defendant was in jail, he also did not explicitly state that he sold drugs to defendant during the period is question. U.S. v. Zehm, 217 F.3d 506 (7th Cir. 2000).
7th Circuit upholds reliance on written statement of drug customer who did not testify in open court. (770) At sentencing, a sheriff’s detective testified about the investigation into defendant’s drug organization and to the written statements taken from defendant, his co-conspirator, and seven customers. The statement of Carter, one of the customers, said that he had seen defendant with 42.52 to 56.7 grams of cocaine. Defendant admitted selling to Carter some $20 rocks of cocaine. Defendant claimed the two statements were inconsistent, because if a $20 rock equaled 0.2 grams, then that would mean he sold Carter crack 212.6 times, or about 2.5 to 3.5 times a day during the two to three months they knew each other. The Seventh Circuit found no inconsistency between the statements. Carter’s statement did not say that defendant sold him 42.52 grams of cocaine; the statement merely said that Carter saw defendant with that amount of cocaine. The reliability of Carter’s statement was bolstered by the statements of other customers and associates of defendant. Moreover, there was a significant amount of other evidence regarding the quantity of drugs attributable to defendant. The PSR attributed 84.5 grams of cocaine to defendant, and that did not include the 42.52 grams attributable to defendant by Carter’s statement. Defendant did not present any evidence to counter the PSR. U.S. v. Simmons, 215 F.3d 737 (7th Cir. 2000).
7th Circuit approves sentencing court’s consideration of evidence seized in violation of 4th Amendment. (770) The district court suppressed 443 grams of heroin found by the FBI in an air conditioner box next to defendant’s storage locker, but included the heroin in its sentencing calculation as relevant conduct. The Seventh Circuit ruled that under the circumstances presented here, the exclusionary rule should not bar the introduction at sentencing of evidence seized in violation of the 4th Amendment. “No limitation shall be placed on the information concerning the background, character, and conduct of” a defendant that a federal sentencing court may receive. 18 U.S.C. § 3661. The exclusionary rule is designed to deter official misconduct, not remedy individual constitutional violations. Its application is “restricted to those areas where its remedial objectives are thought most efficaciously served.” The exclusion of illegally-seized evidence at sentencing would inhibit the ability of the sentencing judge to impose fair and accurate punishments. These detrimental effects are not outweighed by the marginal deterrence that might be gained from extending the exclusionary rule to sentencing. The risk that a law enforcement official would intentionally violate the 4th Amendment in order to increase a defendant’s sentence was small. The rule still effectively deterred misconduct by barring the use of illegally-seized evidence at trial. U.S. v. Brimah, 214 F.3d 854 (7th Cir. 2000).
7th Circuit upholds reliance on witness’s drug quantity testimony. (770) Defendant claimed the district court credited unreliable evidence when calculating drug quantity at sentencing. The judge’s calculation depended on a credibility assessment of Hardin, who testified at trial to precise quantities of drugs he had furnished to defendant. The judge credited Hardin’s testimony. The Seventh Circuit upheld the district court’s reliance on Hardin’s drug quantity testimony. A defendant’s entitlement to reliable evidence does not mean that appellate courts should second-guess decisions to credit live testimony. The point of insisting that evidence be reliable is, although courts may rely on hearsay or other less certain sources of evidence, to ensure that they do not go overboard. Thus, the evidence must have some indicia of reliability. However, when the sentence rests on testimony under oath, it is enough that the judge believe the witness, unless the testimony is illogical or contradicted by documents or other physical evidence, making it clearly erroneous to accept the witness’s version of events. Defendant pointed out that Graves testified that in June 1996 he saw Hardin give defendant one kilograms. Hardin had testified that he handed over four kilograms. However, these accounts did not conflict, because Graves did not testify that he witnessed all of the transactions between Hardin and defendant. U.S. v. Torres-Ramirez, 213 F.3d 978 (7th Cir. 2000).
7th Circuit holds that statements against penal interest were sufficiently reliable to use at sentencing. (770) Defendant challenged the district court’s decision to permit a federal agent to testify based on her knowledge of other crimes in which defendant had been involved. The agent learned much of this information from written summaries of police investigations and interviews with co-defendants, who made statements that were against their own interests. The Seventh Circuit upheld the use of the hearsay testimony since it appeared to be reliable and corroborated. The guidelines expressly permit the use of hearsay evidence that has “sufficient indicia of reliability to support its probable accuracy.” Statements against penal interest have long been considered reliable enough to use at trial under the Federal Rules of Evidence, so they cannot be considered too unreliable for use at sentencing. The statements were also corroborated by police reports and the agent’s own interview with the victim of the other crime. Finally, there was no indication or assertion at sentencing or on appeal that the hearsay was inaccurate or misleading. U.S. v. Szakacs, 212 F.3d 344 (7th Cir. 2000).
7th Circuit says evidence of relevant conduct was sufficiently reliable. (770) Police found 2.6 grams of methamphetamine in a bottle. The Seventh Circuit found sufficiently reliable evidence to attribute an additional 286 grams of meth to defendant as relevant conduct. Hearsay evidence is admissible at sentencing, provided the court concludes that it is reliable. The case was distinguishable from U.S. v. Robinson, 164 F.3d 1068 (7th Cir. 1999), where the court rejected relevant conduct that was based on information taken from state police investigative reports. Just like Robinson, in this case, the prosecution obtained a conviction based on a relatively small quantity of meth, and sought to substantially increase defendant’s sentence using statements of his confederates. However, unlike Robinson, the statements made by the three witnesses in this case were not inconsistent and did not contradict each other. The three witnesses all described defendant as manufacturing meth in a uniform manner on multiple occasions, and the similarity of their statements reinforced the credibility of each statement. Moreover, the statements of two of these witnesses were corroborated by other statements in the PSR. U.S. v. Morrison, 207 F.3d 962 (7th Cir. 2000).
7th Circuit agrees that acquitted conduct was proven by a preponderance of the evidence. (770) Defendants were convicted of conspiracy to participate in mail fraud, 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. The Seventh Circuit found sufficient evidence to support the court’s finding that defendants committed the arson. Defendants did not challenge any evidence presented by the government, arguing only that the government’s evidence should not outweigh their own. The government’s evidence included the testimony of at least three witnesses, each of whom told a consistent story, as well as physical evidence such as defendant’s possessions, predating the fire, that they had stored with their family to preserve them. In addition, tape recordings by one of defendant’s brothers captured admissions made by defendants about the nature of the fire. U.S. v. Kroledge, 201 F.3d 900 (7th Cir. 2000).
7th Circuit upholds reliance on only one of witness’s two statements. (770) In one statement to a DEA agent, Songer said that defendant taught Songer how to cook methamphetamine in exchange for a car, a motor, and a chain saw, and that Songer saw defendant produce 148 grams of meth. In a second interview, Songer also reported receiving between 30 and 60 ounces of defendant’s meth. The government did not rely on either of Songer’s two statements at sentencing. The district court, however, credited Songer’s first statement, which, when combined with other quantities, made defendant responsible for over 500 grams of meth. The Seventh Circuit upheld the district court’s reliance on Songer’s first statement. The wide gulf between the two stories, combined with Songer’s admitted drug use, suggested that the trial court might have performed a more searching inquiry than it did. However, the appellate court did not have a “definite and firm conviction” that the judge was mistaken. The testimony about the 148 grams bore indicia of reliability—facts and details—that were missing from the statement regarding the larger amount. Songer twice told officers that he observed defendant cook this amount of meth. He specified the exact quantities cooked, described the ingredients used, and explained who provided the ingredients. Songer also told officers about the items he gave defendant in exchange for the cooking lessons. In contrast, Songer estimated just once, in passing, that he purchased between 30 and 60 grams of defendant’s meth. U.S. v. Galbraith, 200 F.3d 1006 (7th Cir. 2000).
7th Circuit relies on testimony by witness who abused alcohol. (770) Defendant argued that because Osborne abused alcohol, the district court was obligated to subject Osborne’s testimony to a heightened standard of scrutiny when evaluating the amount of marijuana attributable to defendant. The Seventh Circuit found no error in the court’s reliance on Osborne’s testimony. Osborne testified for more than a day; he was cross-examined by all three defense attorneys. Defendant did not argue that Osborne’s testimony contained significant inconsistencies or lapses of memory regarding the amount of marijuana. In fact, the alleged inconsistencies between Osborne’s testimony and Amezquita’s were not inconsistencies. Since Amezquita entered the conspiracy eight months after defendant, it was entirely consistent that Amezquita never saw much of the marijuana defendant delivered. Moreover, the court noted Osborne’s alcohol abuse and said that his testimony should be, and was, evaluated with caution. U.S. v. Robbins, 197 F.3d 829 (7th Cir. 1999).
7th Circuit permits government’s use of new witness at continued sentencing hearing. (770) At sentencing, the government called two witnesses, and defendant called one. Because defendant wished to file a memo on the differences in treatment between crack and cocaine base, the court continued the hearing and actual sentencing for a later date. At the continued sentencing hearing, the government called Phillips to testify in order to clarify discrepancies in his trial testimony. Defendant argued that the court erred in allowing the government to call Phillips, since it had had sufficient opportunity to present Phillips’ testimony at the original sentencing hearing. The Seventh Circuit found no abuse of discretion in the sentencing court’s decision to allow a witness to be called at the continued sentencing hearing. The government proffered a valid reason for offering the testimony, and Phillips’ testimony succinctly clarified evidence that had been confusing. Moreover, defendant did not demonstrate prejudice. U.S. v. Griffin, 194 F.3d 808 (7th Cir. 1999).
7th Circuit upholds reliance on other drug dealers to determine relevant conduct. (770) During defendant’s flight from police, he dropped a bag containing 7.26 grams of cocaine base. Based on the testimony of two street-level crack dealers who claimed to have dealt drugs with defendant in various areas, the district court attributed two additional ounces of crack to defendant. The Seventh Circuit upheld the district court’s reliance on the testimony of other drug dealers to determine defendant’s relevant conduct. Both dealers testified that they saw defendant regularly dealing crack on the streets of the Delaney Projects. Although defendant claimed that this testimony was unreliable and uncorroborated, he did not offer any evidence to call the reliability or correctness of the facts into question. The district court carefully scrutinized the dealers’ statements, and concluded that they were credible, and that defendant distributed one to two ounces of crack cocaine once or twice a month. U.S. v. Griffin, 194 F.3d 808 (7th Cir. 1999).
7th Circuit finds defendant failed to prove co-conspirator’s statement was unreliable. (770) After her arrest, Overton gave investigators a detailed account of her drug dealings, including 20 grams of crack that defendant supplied to her in September 1996. Defendant argued that this information was unreliable, pointing out that Overton never mentioned the September transaction in other interviews. The Seventh Circuit found that the fact that Overton only referred to the 20-ounce transaction on one occasion did not make the information unreliable. A sentencing judge may rely on information beyond the scope of the evidence produced at trial, including information contained in the defendant’s PSR and information obtaining during the plea hearings of co-defendants. Defendant did not produce any specific evidence that supported his “bald assertion” that the information was unreliable. U.S. v. Hardamon, 188 F.3d 843 (7th Cir. 1999).
7th Circuit finds insufficient information to extrapolate value of funds from three shipments. (770) Defendant transported drug money for his employer. The first shipment contained $1.2 million; a second planned shipment was aborted; the third trip involved $800,000; and a fourth trip involved $ 1 million. The last trip involved an unspecified amount of cash. If the value of the funds laundered was more than $3.5 million, § 2S1.1(b)(2) calls for a 7-level enhancement. The district court found defendant responsible for more than $3.5 million by adding up the known value of the funds ($1.2 million, $800,000, and $1 million), and dividing the total of $3 million by three, for an average value of $1 million per trip. To be conservative, the judge cut that figure in half, and assumed that the aborted second trip and the last trip both involved at least $500,000, for a total amount of $4 million. The Seventh Circuit rejected this methodology, finding insufficient information for the average amount of the shipments to have any meaning. The average was drawn from only three samples. There was no information about either the maximum or the minimum amounts involved in the shipments. The samples were also problematic. They were not selected randomly from a larger pool of subjects; thus, this was an instance of non-probability sampling. This made it especially problematic to extrapolate from the three known values to the fourth unknown one. U.S. v. Johnson, 185 F.3d 765 (7th Cir. 1999).
7th Circuit permits sua sponte reliance on victim impact and police statements. (770) Defendant and others invaded a home, bound up the residents, and held them at gunpoint. In applying a § 2B3.4 bodily injury enhancement, the district court relied on an FBI agent’s testimony about injuries suffered by Concepcion and also considered injuries to Cardona, even though the PSR did not discuss Cardona as a separate victim. The court did so of its own accord, after it had been presented, without defense objection, with Cardona’s victim-impact statement (admitted to support the restitution request for her medical expenses) and her statement to police (admitted to corroborate the FBI agent’s testimony that defendant had struck and injured Concepcion). The Seventh Circuit rejected defendant’s claim that the district court’s sua sponte reliance on its own observations about Cardona’s injuries denied him due process. Rule 32(c)(1) allows a court to consider the PSR and “other matters relating to the appropriate sentence.” Defendant knew of the contents of Cardona’s victim-impact and police statements, and allowed them to be placed before the court without objection. Although defendant did not have advance notice that the evidence would be used to support the bodily injury enhancement, defendant did learn about the judge’s alternate theory before the sentencing hearing was over. He could have, but did not, request a continuance. Moreover, evidence of Cardona’s bodily injuries was cumulative to Concepcion’s proven injuries. U.S. v. Pandiello, 184 F.3d 682 (7th Cir. 1999).
7th Circuit upholds drug quantity finding based on defense counsel’s admission at sentencing. (770) The sentencing judge held defendant responsible for 1.3 kilograms of crack based on defense counsel’s admission at sentencing that defendant was responsible for this quantity. Defendant was present at the sentencing hearing and did not object to this statement by his counsel. Defense counsel’s admission was founded in part on defendant’s own admission that he sold 400 grams of crack; the remainder stemmed from defendant’s knowledge that his co-conspirators converted much of the cocaine they purchased from him into crack. Joiner stated that he cooked two ounces of powder into crack for defendant every two weeks for about two years, which independently accounted for as much as 2.21 kilograms. The Seventh Circuit found that this provided a sufficient basis for attributing 1.3 kilograms of crack to defendant. The court further ruled that the government did not violate the plea agreement by informing the sentencing judge that defendant trafficked in crack rather than powder cocaine. The agreement did not contain such a restriction and it would have been beyond the government’s power to make such a promise, since a prosecutor has an obligation to inform the court of all relevant conduct. U.S. v. Joiner, 183 F.3d 635 (7th Cir. 1999).
7th Circuit says defendant not entitled to use immunity. (770) Based on defendant’s admission that he cooked two ounces of cocaine into crack for Collins every week for a year and a half, the district court held him accountable for 1.5 kilograms of crack. Defendant argued that because he made this admission after he signed a plea agreement, the government was prohibited from using his concession against him. The Seventh Circuit held that defendant was not entitled to use immunity under the terms of his plea agreement. Under § 1B1.8, a defendant receives immunity for his self-incriminating statements if the government agrees to grant immunity. Defendant turned down the government’s offer of use immunity. Furthermore, even if the judge were not entitled to consider defendant’s admission, he still would have been able to rely upon statements of other conspirators who connected defendant to 2.25 kilograms of crack. U.S. v. Joiner, 183 F.3d 635 (7th Cir. 1999).
7th Circuit relies on defendant’s post-arrest admission rather than self-serving recantation. (770) Defendant and his brother were arrested with several rocks of crack and a large sum of cash. Defendant made a post-arrest statement to agents with the names of his suppliers and customers, as well as information regarding the quantity of drugs that he bought and sold. Defendant’s brother also made a post-arrest statement that corroborated many of defendant’s statements. However, at sentencing, defendant recanted his post-arrest statement, claiming it was unreliable because at the time he was under the influence of crack, heroin, and alcohol. The Seventh Circuit held that the district court properly relied on defendant’s post-arrest admissions rather than his self-serving recantation made at sentencing. Much of the information contained in defendant’s statement was corroborated by his brother’s statement. Although defendant claimed the crack, heroin and alcohol allegedly ingested before his arrest altered his judgment, the arresting FBI agent testified that defendant exhibited no physical signs of drug use. U.S. v. Cleggett, 179 F.3d 1051 (7th Cir. 1999).
7th Circuit relies on co-conspirator’s testimony to determine drug quantity. (770) The district court relied on the testimony of several co-conspirators, including Beauprey, to determine drug quantity. Defendant argued that the testimony of Beauprey was unreliable. The Seventh Circuit found no error in the court’s reliance on co-conspirator testimony to determine drug quantity. The district judge specifically found nothing in Beauprey’s testimony was “false or inaccurate,” and that his testimony was not “embellished such that the court ought to discredit it.” Such credibility evaluations by a district judge are given utmost deference, and defendant gave no reason to disturb this one. U.S. v. Brisk, 171 F.3d 514 (7th Cir. 1999).
7th Circuit rejects use of “two-witness rule” at sentencing. (770) The district court applied an obstruction of justice enhancement because it found that defendant perjured himself at trial. Defendant argued that the “two-witness rule” of the federal criminal perjury statute, 18 U.S.C. § 1621, applied here. To prove that a defendant gave false testimony in violation of § 1621, the government must provide either the testimony of two witnesses, or the testimony of one witness and “sufficient corroborative evidence.” The Seventh Circuit upheld the enhancement and rejected the application of the two-witness rule at sentencing. The Federal Rules of Evidence do not apply at sentencing. A sentencing court is free to consider a wide range of information, including hearsay evidence, that may be inadmissible at trial. However, a defendant’s sentence must be based upon reliable information. In this case, the district court based the enhancement on the testimony of three credible witnesses. These indicia of reliability were more than enough to support the enhancement. U.S. v. Menting, 166 F.3d 923 (7th Cir. 1999).
7th Circuit review evidentiary challenge for plain error where defendant raised different claim at sentencing. (770) Defendant participated in a marijuana trafficking conspiracy. He argued on appeal that the sentencing judge erred in holding him accountable for 30 pounds of marijuana that a co-conspirator’s sister unknowingly transported from Arizona to Indiana. His sole basis at sentencing for excluding these drugs was that there was no evidence to establish that he stowed the drugs under the vehicle that the sister drove from Arizona to Indiana. However, on appeal, he contended that the testimony used to establish that he stashed the marijuana under the truck was unreliable, uncorroborated hearsay. The Seventh Circuit held that because defendant challenged the inclusion of the marijuana on a ground different than the one on which he based his appeal, it would only review his claim on appeal for plain error. The district court’s reliance on the sister’s testimony that defendant placed the marijuana under the truck was not plain error. Two attorneys unsuccessfully attempted to impeach the sister’s credibility at trial. Defendant had ample opportunity to cross-examine the sister regarding her testimony. U.S. v. McClellan, 165 F.3d 535 (7th Cir. 1999).
7th Circuit relies on hearsay evidence that defendant attempted to influence witnesses. (770) Defendant was convicted of armed robbery. At sentencing, a police officer testified that defendant attempted to intimidate or influence the testimony of two witnesses. About three weeks before trial, a man in custody told the officer that defendant had asked him to go to the house of one of defendant’s victims and offer drugs and to return the items defendant had stolen from the victim. The victim and her sister told the officer that the man did in fact communicate this message to them. The officer also testified that his partner received a phone call from another victim who reported that a woman came to his house and said that she had “an offer” for the victim from defendant. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s efforts to influence the witnesses. Congress has explicitly permitted the use of hearsay testimony in sentencing proceedings. Defendant did not present any information suggesting that the hearsay was inaccurate or unreliable. The fact that one potential witness was in custody did not make him unreliable. U.S. v. Eskridge, 164 F.3d 1042 (7th Cir. 1998).
7th Circuit rejects hearsay responsible for 97% of defendant’s relevant conduct. (770) The district court found that 32.9 grams of crack were involved in the offense of conviction. The court attributed an additional 110 grams of crack to defendant based on statements made by two witnesses. Finally, the court held defendant accountable for 5,103 grams of crack based on hearsay statements made by one of defendant’s underlings. The Seventh Circuit ruled that the hearsay had insufficient indicia of reliability to support its use. Although a judge need not hear personally from witnesses at sentencing, it is a good idea to do so when the witness is going to provide the basis for 97 percent of a defendant’s relevant conduct. According to the PSR, the witness said defendant was selling 1/16th ounce quantities of crack for $100 and 1/8th quantities of crack for $250 or $275. This statement made no sense, since defendant’s drug customers would not pay more per unit as the quantity increased. This error colored the Seventh Circuit’s view of the witness’s other statements. The probation officer relied on these statements to estimate that defendant was distributing three ounces (85.05 grams) of crack a day for 60 days. This resulted in the 5,103 gram finding. This was “an astonishing amount” considering that the three counts of conviction only involved 32.9 grams. U.S. v. Robinson, 164 F.3d 1068 (7th Cir. 1999).
7th Circuit relies on drug user’s testimony to determine drug quantity. (770) Defendants were involved in a long term cocaine distribution conspiracy. The district court based most of its drug quantity calculations on the testimony of defendants’ partner. Defendants argued that the partner’s testimony was “inherently unbelievable” because the partner was a drug user who was granted immunity by the government. The Seventh Circuit found the partner’s testimony had sufficient “indicia of reliability” for the district court to credit it. The decision whether to put stock in the partner’s testimony was for the district court, so long as the testimony had “sufficient indicia of reliability to support its probable accuracy.” Much of the partner’s testimony corroborated defendants’ testimony. Although they disagreed about particulars of how much cocaine was sold and when, much else overlapped. Additionally, the partner’s testimony about other matters, including the lay-out of the shop where the cocaine was sold, the kinds of scales used in the transactions, and the lulls in the drug transactions, was accurate. U.S. v. Hach, 162 F.3d 937 (7th Cir. 1998).
7th Circuit says reliance on PSR not plain error. (770) At sentencing, the district judge adopted the factual findings in defendant’s PSR, including facts about defendant’s role in the conspiracy and the quantity of drugs involved. Much of the information in the report came from the testimony of co-conspirators at the trial of co-defendants and from co-conspirators’ statements made to investigators. Defendant argued for the first time on appeal that the court erroneously considered unreliable, uncorroborated information. The Seventh Circuit found no error, plain or otherwise, in the court’s determinations. The sentencing court found the information from defendant’s co-defendants to be reliable. A sentencing judge is not bound by the Rules of Evidence when considering information to determine a defendant’s sentence. Thus, he may rely on hearsay and statements from co-conspirators so long as he finds the statements reliable. U.S. v. Berkey, 161 F.3d 1099 (7th Cir. 1998).
7th Circuit upholds use of confidential memorandum from probation officer at sentencing. (770) At his sentencing hearing, the court informed defendant that it had received a confidential memorandum, consistent with its routine practice, from the probation officer that contained the officer’s recommendation for an appropriate sentence. The Seventh Circuit held that the court’s use of the confidential memorandum at sentencing was not plain error. Rule 32(b)(6)(A) provides that the court may, by local rule or in individual cases, direct the probation officer not to disclose his sentencing recommendation. The district court promulgated such a local rule. Thus, the district court was entirely within its discretion in not disclosing the probation officer’s recommendation. Defendant was provided with a copy of the PSR, and therefore knew in advance that his guideline range was between 120-137 months. Additionally, the judge noted at sentencing that it was the court’s routine practice to receive a confidential memorandum from the probation officer. The recommendation contained no new factual information, and defendant did not object. U.S. v. Humphrey, 154 F.3d 668 (7th Cir. 1998).
7th Circuit upholds reliance on co-conspirator’s testimony about drug transactions. (770) Defendant contended that the trial court erred in attributing 2.4 kilograms of cocaine to him. He asserted that the testimony of a co-conspirator was so incredible that it should have been disregarded, and that he should have been sentenced only for the 14.1 grams of cocaine in his coat the day of his arrest. The co-conspirator testified at trial to participating in numerous drug transactions with defendant, including deals for nine ounces, one-half kilogram, two one-half kilograms, and another one-half kilogram of cocaine. The Seventh Circuit ruled that the court properly relied on the co-conspirator’s testimony. The credibility of witnesses is a question of fact for the district court. The sentencing court evaluated the co-conspirator’s testimony, considered the corroborating evidence, and correctly found that defendant was responsible for 2.4 kilograms. U.S. v. Humphrey, 154 F.3d 668 (7th Cir. 1998).
7th Circuit says drug quantity testimony not impossible because merely an approximation. (770) Defendant argued that a witness’s testimony used to hold him accountable for 80 pounds of methamphetamine was incredible as a matter of law because it was “physically impossible.” The witness testified that he did several deals, about every two weeks, from the time defendant was released from the state penitentiary in May 11, 1992, until July 4, 1992. Defendant sought to enumerate these deals and totaled seven. Defendant argued that it would be physically impossible to do seven deals, each two weeks apart, from May 11th to July 14th. The Seventh Circuit found no error in using the witness’s approximations. Although the witness testified that the deals were every two weeks, he also stated that they were sometimes twice a week. The testimony was not sufficiently detailed to indicate seven drug deals occurred exactly two weeks apart from May 11th to July 14th. Therefore, the testimony was not incredible as a matter of law. U.S. v. McEntire, 153 F.3d 424 (7th Cir. 1998).
7th Circuit remands for adequate reasons for disputed drug quantity estimate. (770) Defendant was a member of a large methamphetamine conspiracy. In a proffer, a co-conspirator stated that he had personally supplied defendant with 50 pounds of meth. He then testified at a co-defendant’s trial that he supplied 80-100 pounds. Next, the co-conspirator signed an affidavit saying he had no accurate estimate of how much meth he supplied to defendant. However, at defendant’s sentencing hearing, he said defendant had asked him to say that the 80-100 pound estimate was incorrect. He then testified that the 80-100 pound estimate was low. The district court attributed 80 pounds of meth to defendant. The Seventh Circuit remanded because the district court did not adequately explain why the 80-100 pound estimate was credited over the other varying statements. It was unclear whether the district court conducted a sufficiently searching inquiry into the contradictory evidence. The co-conspirator’s testimony was uncorroborated and the district court did not provide a rationale for believing one set of contradictory statements over another. U.S. v. McEntire, 153 F.3d 424 (7th Cir. 1998).
7th Circuit upholds estimate based on second-hand information. (770) Defendant obtained drugs from Arizona for resale in southern Illinois. Two co-conspirators gave detailed statements estimating how much of each drug defendant dealt. However, the estimates were based on second-hand information. The district court used the statements to estimate that defendant had made 16 trips to Arizona, bringing back 3 pounds of marijuana and one ounce of methamphetamine each time. The Seventh Circuit found that the court properly relied on the co-conspirators’ statements to estimate drug quantity. The district court found the hearsay was reliable by finding the witnesses credible and their testimony corroborated by other evidence. One witness said defendant traveled to Arizona every month or two for 2 1/2 years, making 16 to 32 trips. The other witness said defendant dealt 5200 dosage units of LSD. At sentencing, the witness admitted that an estimate of 1700-5200 dosage units was reasonable. Any error in using the higher number was harmless, because it would not change defendant’s offense level. U.S. v. Burke, 148 F.3d 832 (7th Cir. 1998).
7th Circuit upholds reliance on police officer’s estimated conversion ratios. (770) A jury convicted defendant of crack and powder cocaine charges. He challenged the district court’s reliance on the testimony of a police lieutenant, who offered an opinion on the conversion ratios of powder cocaine to crack. The Seventh Circuit found no error. The lieutenant had extensive experience investigating crack cocaine cases and had interviewed countless people on the means and procedures for manufacturing crack. The officer testified that the expected weight loss in the conversion process was about 10-15%, varying with the skill of each cook, but that no one would continue to use a cook who lost as much as 30% of the original weight of the powder cocaine. Based on a chemist’s testimony that the powder cocaine seized from defendant’s jacket was 78% pure, the court deducted 22% of the gross powder weight for impurities. In consideration of the police officer’s “worst case scenario,” the court then deducted another 30% for a total reduction of 52%. This 52% loss ratio, which was far more than ratios approved in other cases, resulted in a figure of 157 grams of crack, far short of the 228 grams recommended by defendant’s PSR. The court’s conservative calculation was not erroneous. U.S. v. Hunter, 145 F.3d 946 (7th Cir. 1998).
7th Circuit approves consideration of drug ledger in determining relevant conduct. (770) Defendant worked as a dishwasher in a restaurant owned by a drug dealer. His duties expanded to include delivering cocaine to various customer on his employer’s behalf. On the day of defendant’s arrest, police officers seized a ledger from his house. The district court held defendant accountable for over 150 kilograms of cocaine based on the drug ledger and first-hand witness testimony of defendant’s cocaine deliveries. The Seventh Circuit held that the district court properly considered the drug ledger in determining defendant’s relevant conduct. Defendant admitted to making drug deliveries on his employer’s behalf and admitted that he made notations in the ledger at the employer’s request. An intelligence analyst for the DEA decoded the ledger as recording information such as the kilograms of cocaine delivered to a customer, the price of the transaction, and the payments owed on that transaction. Defendant was a dishwasher and cook at the dealer’s restaurant. Drugs were the only reasonable explanation for the detailed ledger of transactions. Defendant did not participate in the management of the restaurant. U.S. v. Hillsman, 141 F.3d 777 (7th Cir. 1998).
7th Circuit rejects constitutional challenges to attributing claimed drug quantities to defendant. (770) Defendant was convicted of drug charges. The district court considered as relevant conduct not only the 279 grams of cocaine defendant sold to the government but also 425 grams defendant claimed to possess in recorded telephone conversations. Defendant argued that it violated the Fifth and Sixth Amendments to attribute the unseized, drugs to him as relevant conduct. The Seventh Circuit disagreed. Cases have repeatedly upheld the constitutionality of the guidelines’ instruction to increase a defendant’s sentence based on uncharged relevant conduct. Here, the district court listened to defendant describe his drug holdings in two recorded conversations. The court also listened to a former customer describe his participation in these conversations, identify defendant’s voice, and explain the meaning of their conversations with regard to drug quantities. Possessing the disputed 425 grams was sufficiently similar in time and type to defendant’s charged conduct as to be part of the same course of conduct as the charged offense. U.S. v. Hillsman, 141 F.3d 777 (7th Cir. 1998).
7th Circuit upholds use of drug addict’s estimate of drug quantity. (770) Defendant was a leader of a cocaine trafficking conspiracy. The district court held him accountable for between 3.5 and 5 kilograms of cocaine based on the testimony and statements of a conspiracy employee who provided detailed information after his arrest about the structure of the organization. Defendant argued that the conspirator was unreliable because he was an admitted drug addict. The Seventh Circuit upheld the addict’s drug quantity estimate. The sentencing court found the drug addict to be credible, noting that it was corroborated by a cooperating witness. There was nothing to indicate that the court did not assess the addict’s reliability adequately. U.S. v. McClinton, 135 F.3d 1178 (7th Cir. 1998).
7th Circuit applies bodily injury increase based on supervisor’s testimony about pepper spray. (770) Defendant and his brother robbed a bank. During the robbery, the brother sprayed pepper spray into the faces of several bank employees. The Seventh Circuit upheld a § 2B3.1(b)(3)(A) bodily injury enhancement based on the injuries suffered by the bank employees from the pepper spray. Although defendant did not spray the workers, he was accountable for the actions of his brother. The evidence supported the bank’s finding that the tellers suffered bodily injury from the pepper spray. A bank supervisor testified that immediately after the robbery, she saw paramedics administering oxygen to the tellers, flushing out their eyes and checking for damage. The tellers were taken to the hospital and treated for burning and irritated skin, and one was placed on heart monitoring equipment because of a preexisting heart condition. Each teller spent from two to five hours at the hospital and missed from five days to two weeks of work. The fact that the supervisor’s testimony was largely a secondhand report of their injuries did not make it unreliable. The supervisor’s direct contact with the tellers, her observation of the effects of the pepper spray on them, and her responsibility to monitor their health after the robbery supported the court’s reliance on the testimony. U.S. v. Taylor, 135 F.3d 478 (7th Cir. 1998).
7th Circuit upholds denying continuance so that co-conspirator could testify. (770) Defendant argued that he was denied due process at sentencing when the trial judge refused to delay sentencing so that a co-conspirator, unable to be there due to inclement weather, could be present. Defendant contended that he could have undermined the co-conspirator’s credibility as to whether defendant customarily accompanied the co-conspirator on cocaine-buying trips. The judge examined the questions defendant planned to ask the co-conspirator and concluded that the examination would add nothing significant to defendants’ trial testimony. The Seventh Circuit found no due process violation. By receiving defendant’s proffer, the trial court did all that was necessary. The court was justified in concluding that the proposed questions provided minimal if any impeachment of the co-conspirator. Moreover, the court had already concluded that the co-conspirator’s trial testimony was credible. The court could properly rely on the co-conspirator’s trial testimony for relevant conduct issues at sentencing. U.S. v. Earnest, 129 F.3d 906 (7th Cir. 1997).
7th Circuit considers relevant conduct that occurred in foreign country. (770) While working in Honduras, defendant made a number of films depicting minors engaged in sexually explicit conduct. He had the films developed in the U.S. and delivered to him in the U.S. Defendant pled guilty to receiving and possessing child pornography. The guidelines that applied to the offenses of conviction, §§ 2G2.2 and 2G2.4, contain a cross-reference to § 2G2.1, the guideline that applies to the production of child pornography. Defendant argued that the cross-reference did not apply because the conduct on which it was based, the production of the films, took place outside the U.S. The Seventh Circuit held that nothing barred the consideration of relevant conduct that occurred outside the U.S. Defendant was not being sentenced for his conduct in Honduras, producing child pornography. The offense of conviction—receiving and possessing child pornography—occurred entirely in the U.S. This holding is not inconsistent with Second Circuit cases excluding “foreign crimes” from relevant conduct. Those cases involved relevant conduct that had a tenuous link to the offense of conviction. Here, defendant’s exploitation of minors in Honduras created the very pornography that he received and possessed in the U.S. U.S. v. Dawn, 129 F.3d 878 (7th Cir. 1997).
7th Circuit relies on defendant’s post-arrest statements despite efforts to retract them. (770) The probation officer determined that defendant should be held accountable for 59.49 grams of crack and 538.65 grams of powder cocaine based on defendant’s own admissions during a post-arrest interview. Defendant argued that the district court erred in adopting these findings in light of his efforts to retract his post-arrest admissions. Twelve days after his arrest, defendant and his attorney met with an agent to make a proffer, and defendant gave significantly lower estimates of the cocaine amounts he handled. The Seventh Circuit upheld the court’s reliance on defendant’s post-arrest admissions to determine drug quantity. The judge heard defendant’s testimony at the sentencing hearing and found his explanation for the revisions to be unworthy of credence. The district judge’s determination of credibility is entitled to great deference. U.S. v. Burns, 128 F.3d 553 (7th Cir. 1997).
7th Circuit uses drug quantity amounts government proved at trial of co-conspirators. (770) Defendant pled guilty without a plea agreement to drug charges. His co-conspirators were tried and convicted. The district court sentenced defendant based on the marijuana quantities the government proved at the trial of his co-conspirators. Defendant challenged the relevant conduct attributed to him because he was not allowed to cross-examine the witnesses against him. The Seventh Circuit held that defendant was properly held accountable for the drugs distributed by his co-conspirators, since the quantity was reasonably foreseeable to him. U.S. v. Lindsey, 123 F.3d 978 (7th Cir. 1997).
7th Circuit refuses to reverse district court’s credibility findings. (770) Defendant argued that the witnesses who testified against him were incredible and biased. The Seventh Circuit refused to reverse the district court’s credibility determinations. Many of the witnesses were co-defendants who pled guilty in exchange for leniency, or were drug addicts, and thus were subject to heightened scrutiny. However, even when there is strong reason to doubt the credibility of witnesses, the credibility of witnesses remains uniquely within the province of the fact finder. Absent clear error, an appellate court will not reverse on credibility grounds. U.S. v. Lindsey, 123 F.3d 978 (7th Cir. 1997).
7th Circuit upholds reliance on hearsay to determine leadership role in smuggling conspiracy. (770) Defendant, an internationally recognized expert on rare birds, conspired with others to smuggle protected parrots and macaws into the United States. The Seventh Circuit upheld the district court’s reliance on hearsay to determine that defendant was the leader or organizer of the conspiracy. The district court was well aware that in sentencing procedures, it ought to carefully scrutinize hearsay that is particularly suspect and not corroborated. Although defendant characterized his role as merely a seller of birds and a helper in a co-conspirator’s operation, the district court’s determination was based on 8 days of witnesses at the sentencing hearing. It is the district court’s role to make credibility determinations. U.S. v. Silva, 122 F.3d 412 (7th Cir. 1997).
7th Circuit includes tax loss from years that fell outside statute of limitations. (770) Defendant, a carpentry subcontractor, structured his finances and his business to prevent the IRS from learning about his income. He did not have a bank account and paid cash for everything, including his employees. He was convicted of tax evasion for the years 1988 to 1991. The Seventh Circuit upheld the district court’s consideration of defendant’s gross income for tax years 1986 and 1987 as relevant conduct, even though those years fell outside the statute of limitations. The Seventh Circuit, along with six other circuits, have held that the statute of limitations does not limit what a court may consider as relevant conduct. U.S. v. Valenti, 121 F.3d 327 (7th Cir. 1997).
7th Circuit upholds reliance on hearsay to affirm leadership role in food stamp fraud. (770) Defendant, who operated two grocery stores, illegally bought food stamps for 67 percent of their face value and redeemed them at his local bank. The Seventh Circuit affirmed a leadership enhancement based on his control over the store employees involved in the scheme. An undercover agent testified that a store employee told him that defendant had instructed the employee as well as five co-employees to purchase food stamps for cash at a rate of 67 cents on the dollar, and that defendant used the cash from those transactions to fund future purchases. The Seventh Circuit affirmed the court’s reliance on the agent’s hearsay to apply the leadership enhancement. The sentencing court ruled that the agent’s hearsay statement was reliable to the extent it was corroborated by independent evidence, including a written account by the store employee. In addition, undercover agents exchanged food stamps for cash with six different store employees at two different locations, on four occasions. U.S. v. Barnes, 117 F.3d 328 (7th Cir. 1997).
7th Circuit upholds assumption that defendant converted powder cocaine into crack. (770) Defendant was convicted of a crack cocaine conspiracy. The district court held defendant accountable for 900 grams of crack cocaine by assuming that a co-conspirator supplied 4 nine-ounce quantities of powder cocaine to defendant that were converted to crack cocaine in a proportion of 25 grams of crack for each ounce of powder cocaine. Defendant argued that it was improper to assume that all of the powder cocaine was converted to crack, and that the co-conspirator testified at trial that he supplied defendant with cocaine 3 or 4 times. The Seventh Circuit found no error. The co-conspirator insisted on both direct and cross-examination that he made four sales to defendant. The court’s assumption that all of the powder was cooked into crack was reasonable. A number of witnesses testified that they purchased crack, not powder, from defendant throughout the time frame of the conspiracy. There was no evidence that defendant ever distributed anything but crack. The district court was entitled to credit the testimony of the co-conspirator and other witnesses, despite their prior felony convictions, their efforts to cooperate in prosecuting him, and their prior drug use. U.S. v. Taylor, 116 F.3d 269 (7th Cir. 1997).
7th Circuit permits considering acts beyond statute of limitations as relevant conduct. (770) From 1978 to 1992, defendant failed to report to the Veterans Administration the income he earned. As a result, he received a larger VA pension than he was entitled to receive. He pled guilty to two counts relating to the false reports he filed 1991 and 1992. The district court calculated the loss as the total overpayment from 1978 to 1992. Defendant maintained that the loss should be limited to the false reports he filed within the five-year statute of limitations period. Because he was indicted in March 1996, the five-year statute of limitations would have excluded any acts before March 1991. The Seventh Circuit held that a court may properly consider acts beyond the statute of limitations as relevant conduct. Six other circuits have held that relevant conduct should not be limited by the statute of limitations. Relevant conduct does not focus on acts for which the defendant is criminally accountable. U.S. v. Matthews, 116 F.3d 305 (7th Cir. 1997).
7th Circuit finds defendant joined conspiracy within a year after release from prison. (770) Defendant was convicted of a heroin conspiracy. The district court added two criminal history points under § 4A1.1(d) and (e) because his participation in the conspiracy began while he was on probation for a state criminal conviction. The Seventh Circuit upheld the court’s reliance on the testimony of defendant’s wife to determine that he participated in the conspiracy while on probation. The wife testified that although she did not know the exact date defendant started selling drugs, she was certain it was less than a year from the time he was released from prison. Although defendant obtained legitimate employment during this time, this did not refute the wife’s testimony. There was also no merit to defendant’s claim that the probation department would have discovered any criminal activity he committed during this period. Although defendant claimed his wife’s testimony was self-serving, sentencing judges are fully capable of considering the motivations of witnesses in weighing conflicting evidence. U.S. v. Edwards, 115 F.3d 1322 (7th Cir. 1997).
7th Circuit holds that court’s findings on managerial role satisfied Rule 32(c)(1). (770) Defendant challenged a managerial role enhancement, arguing that the district court did not make sufficient findings as required by Rule 32(c) and that the court improperly relied on testimony presented at a co-conspirator’s trial. The Seventh Circuit held that the court’s findings complied with Rule 32(c). In overruling defendant’s objection to the PSR, the court noted that it considered all of the evidence, including information from a co-conspirator’s trial, the documents that were presented, and defendant’s own statement. A sentencing court may discharge its duty under Rule 32(c)(1) by making reference to the PSR, especially if the defendant has merely objected to the report without offering any evidence of inaccuracy. Defendant did not take issue with any specific part of the PSR. The court could properly rely on information from a co-defendant’s trial. The testimony considered by the court dealt specifically with defendant’s role in the conspiracy. U.S. v. Pippen, 115 F.3d 422 (7th Cir. 1997).
7th Circuit finds obstruction in false testimony and attempts to stop co-defendants’ cooperation. (770) The district court applied an obstruction of justice enhancement because defendant testified falsely that he had not dealt crack after he was released from jail. He also attempted to pressure co-defendants to retract incriminating statements, and tried to get other co-defendants to withdraw their plea agreements and refuse to testify. The Seventh Circuit found sufficient evidence to support the § 3C1.1 obstruction enhancement. Although defendant attempted to discredit the witnesses, the court was entitled to believe those witnesses and disbelieve defendant’s denials. Defendant’s attempt to influence the witnesses was also a proper basis for the enhancement. The court properly considered the testimony of a police officer who had been informed of defendant’s activities by the co-defendants themselves. Although this was hearsay, the ordinary rules of evidence do not apply at sentencing. U.S. v. Pippen, 115 F.3d 422 (7th Cir. 1997).
7th Circuit upholds reliance on co-conspirator testimony to determine drug quantity. (770) Defendant challenged the district court’s consideration of the testimony of three co-conspirators in determining the drug quantity attributable to him. He contended that one co-conspirator was not reliable because he had something to gain by his testimony and his recollection was clouded by drug use, and that the testimony of others was not trustworthy. The Seventh Circuit approved the consideration of the co-conspirator testimony. At sentencing, the district court essentially presided over a credibility contest. The judge had the opportunity to hear and observe defendant and the three co-conspirators. The court found one co-conspirator to be reliable because he was able to recall details surrounding the transactions. U.S. v. Katalinich, 113 F.3d 1475 (7th Cir. 1997).
7th Circuit credits hearsay statements of co-conspirators over defendant’s self-serving testimony. (770) Defendant was the leader of a drug and money laundering conspiracy. Statements made by co-conspirators to a government investigator who testified at trial would have supported a finding of 400-700 kilograms of marijuana involved in the conspiracy. The only evidence supported a lower quantity was defendant’s own testimony. The Seventh Circuit upheld the district court’s decision to credit the hearsay statements of defendant’s coconspirators over defendant’s testimony. The witnesses’ motives for testifying did not make their statements unreliable. Sentencing judges are fully capable of considering the motivations of witnesses in weighing conflicting evidence. Reliable hearsay evidence is admissible at sentencing. Defendant was permitted to examine the government investigator extensively regarding his recollection of the statements, the consistency with which the co-conspirator made the statements, and the extent to which the statements were corroborated by other evidence. U.S. v. House, 110 F.3d 1281 (7th Cir. 1997).
7th Circuit upholds drug quantity determination based on testimony by drug addicts. (770) Defendant argued that the district court’s drug quantity determination was based on unreliable information from drug addicts. The Seventh Circuit affirmed, finding that defendant did not show that the district court failed to adequately assess the witnesses’ reliability. The district court viewed the witnesses at trial, including their cross-examination. It also made further inquiry at sentencing into the statements made by one witness to the agent who interviewed him. The district court also properly adopted the PSR’s extrapolation of 438 grams based on an equation of $20 rocks of crack to 0.1 grams. When a court adopts a PSR’s findings, the defendant must offer more than a bare denial of its factual allegations to mount a successful challenge. U.S. v. Hall, 109 F.3d 1227 (7th Cir. 1997).
7th Circuit upholds admission of late FBI report. (770) Two days before the sentencing hearing, defendant filed objections to the PSR, claiming he had no prior involvement in the drug trade, knew nothing of the sale until the day of the transaction, and was only a minor or minimal participant. At sentencing, the government introduced an FBI report (a “302”) that refuted defendant’s claim. The Seventh Circuit found no error in accepting the 302. The decision whether or not to hold an evidentiary hearing before sentencing is within the sound discretion of the district court. The court probably should have given defendant an opportunity to contest the 302, but defense counsel made no such request. Moreover, despite the court’s reference to the report as “highly relevant,” it did not appear that the 302 had any relevance to the question of defendant’s role in the offense, and played no role in the court’s denial of a § 3E1.1 reduction or a downward departure. Defendant was not entitled to a minor role reduction because he was only held accountable for the one transaction in which he was admittedly involved. The court denied defendant a downward departure because it did not view defendant’s family financial crisis as justifying a departure. Judge Rovner dissented. U.S. v. Beltran, 109 F.3d 365 (7th Cir. 1997).
7th Circuit allows FBI agent’s testimony and summaries of interviews with co‑conspirators. (770) Defendant, with the assistance of others, engaged in a fraudulent scheme to obtain lines of credit from a bank. The district court found that the activity involved five or more participants, relying on an FBI agent’s oral testimony and his written interview summaries establishing that three of defendant’s employees knowingly participated in defendant’s scheme. The Seventh Circuit upheld the admission of the FBI agent’s testimony and the written summaries of the agent’s interviews with several co‑conspirators. Defendant did not explain how the FBI agent’s testimony was inadmissible under the liberal evidentiary standards that apply at sentencing. Although some of the testimony might have been hearsay, reliable hearsay evidence may be considered in sentencing. The sentencing judge found that FBI agent’s testimony to be credible. U.S. v. Gerstein, 104 F.3d 973 (7th Cir. 1997).
7th Circuit says court accounted for co‑conspirator’s absence in determining quantity. (770) Defendant pled guilty to conspiring to distribute cocaine base. He challenged the district court’s quantity determination, which relied heavily on the testimony of a co‑conspirator. Defendant suggested that because the co‑conspirator was out of town for one week in question, his testimony was unreliable. The Seventh Circuit held that the district court properly took into account the co‑conspirator’s absence in calculating drug quantity. The court modified its order and lowered the quantity from 1500 grams to 1250 grams to account for the week in question. U.S. v. Tanksley, 104 F.3d 924 (7th Cir. 1997).
7th Circuit upholds reliance on drug-user informant to determine drug quantity. (770) Defendant pled guilty to conspiring to distribute marijuana. The district court held him accountable for at least 50 kilograms (about 110 pounds of marijuana). Defendant conceded that the government proved his involvement with 96 1/4 pounds, but argued that the court improperly relied on the testimony of a drug-using informant with an admittedly “foggy memory” to hold him accountable for the additional marijuana. The Seventh Circuit found no clear error in the court’s determination of defendant’s relevant conduct. The informant’s testimony was not, as defendant asserted, completely uncorroborated. Witnesses corroborated several aspects of his testimony, including testimony that he saw 20‑30 pounds of marijuana in defendant’s possession a couple of times and once saw about 50 pounds. Also, even if the uncorroborated testimony was disregarded, other testimony from the sentencing hearing provided a reasonable basis for at least 110 pounds. Any reliance on the informant’s testimony, which involved a credibility judgment, was not so clearly unreasonable as to justify a reversal. U.S. v. Carmack, 100 F.3d 1271 (7th Cir. 1996).
7th Circuit upholds drug quantity calculation based on credible witnesses. (770) Defendant was convicted of drug conspiracy and firearms counts. The district court calculated the drug quantity using a chart prepared by an FBI agent who interviewed seven witnesses. The chart outlined the quantity of drugs that each witness attributed to defendant based on the witness’s interactions with and observations of defendant. Defendant argued that the people providing the drug quantity information were “patently unbelievable” and they did not provide adequate information regarding the dates, times and places where the alleged transactions occurred. The Seventh Circuit affirmed the district court’s finding that defendant was responsible for at least 150 grams of cocaine base. The district court found the witnesses credible. Regarding defendant’s criticism of the lack of specific details, the court noted that it was not in the nature of this “illegal business” to keep records. The statements of two of the witnesses alone, both of whom the court observed at trial, could place defendant in the 100-500 gram range. U.S. v. Robinson, 96 F.3d 246 (7th Cir. 1996).
7th Circuit upholds relevant conduct finding but rejects drug quantity determination. (770) Defendant was arrested possessing 31 grams of heroin. The district court held him accountable for an additional 20 kilograms of cocaine as relevant conduct. The Seventh Circuit agreed that the uncharged cocaine sales were relevant conduct, but rejected the court’s 20‑kilogram finding. Defendant obtained both the cocaine and the heroin at the same time. The physical evidence found at defendant’s residence supported the conclusion that he was dealing in cocaine at the time of the heroin offense. However, the drug quantity determination was not based on reliable information. The testimony the court relied on was contradictory. The witness offered inconsistent estimates concerning the size of his smallest purchases, at one point stating it was a half ounce and at another point that it was nine ounces. The court used the nine ounce figure without explaining why it rejected the half ounce figure. U.S. v. Acosta, 85 F.3d 275 (7th Cir. 1996).
7th Circuit upholds court’s refusal to issue writ to secure appearance of federal prisoner as witness at sentencing. (770) Defendant oversaw an Illinois drug operation operated by a drug distributor in California. He argued that the district court improperly denied his request to produce the leader, who was incarcerated in California, as a witness at sentencing so he could “explain” defendant’s limited role in the conspiracy. The Seventh Circuit held that when ruling on a request for a writ of habeas corpus ad testificandum at sentencing, a court should take into account the effect the proffered testimony may have on the application of the guidelines. Here, although the proposed witness could have reduced defendant’s sentence by 16 years, the appellate court deferred to the discretion of the district judge, who concluded that the leader’s testimony would have made no difference. The leader was not present in Illinois when the events took place. Furthermore, defendant only made a “halfhearted effort” to secure the leader’s appearance, and never stated, other than in generalities, what the leader would have said once he arrived in court. U.S. v. Garrard, 83 F.3d 889 (7th Cir. 1996).
7th Circuit upholds reliance on co‑conspirators’ testimony to support drug quantity estimate. (770) Defendant claimed that the evidence relied on by the district court was not sufficiently reliable to support its drug quantity determination. The Seventh Circuit upheld the court’s reliance on the testimony of defendant’s co‑conspirators, since the testimony was consistent with the testimony of several participants in the scheme and consistent with the frequent telephone traffic. Hearsay is admissible at sentencing provided it is sufficiently reliable. Grand jury testimony, which is made under oath in a formal proceeding, is a particularly reliable form of hearsay. U.S. v. Crockett, 82 F.3d 722 (7th Cir. 1996).
7th Circuit relies on co-conspirator information to determine drug quantity. (770) Defendant argued that the district court erred in relying on the uncorroborated testimony of a co-conspirator to determine that the conspirators were responsible for one kilogram of cocaine. The Seventh Circuit found no error since defendant presented no evidence to substantiate his claim that he was merely an agent in a four-ounce cocaine deal. Defendant’s presentence report clearly indicated that the conspirator invited defendant to participate in a one kilogram cocaine transaction. Moreover, defendant later called the conspirator to inform him that he had found other investors who wanted to participate. The district court found this information reliable, and attributed the entire kilogram to defendant. A second defendant was also responsible for the entire kilogram. His conversation with police on the night of his arrest confirmed that he knew the overall deal was for one kilogram. At sentencing, defendant’s only evidence to the contrary was a self-serving affidavit. U.S. v. Lanterman, 76 F.3d 158 (7th Cir. 1996).
7th Circuit upholds reliance on drug quantity estimates in PSR. (770) Defendants claimed that the district court improperly relied on drug quantity estimates prepared by the probation office, which were based on statements of “questionable reliability.” The Seventh Circuit held that the court’s reliance on the information in the PSR was proper. The information relied on by the probation office, since it came from a half a dozen people with first hand knowledge of the drug network, bore sufficient indicia of reliability to support its probable accuracy. Because the individuals gave largely consistent and mutually corroborating accounts, the fact that some of the individuals were admitted drug users was not significant. The corroboration obviated the need for a searching inquiry into how drug use affected the reliability of the statements. Moreover, the statements were not taken at face value and the estimates made were conservative. U.S. v. Taylor, 72 F.3d 533 (7th Cir. 1995).
7th Circuit upholds estimate given by drug addict. (770) Defendant’s associate told police that he and defendant made methcathinone at least 30-40 times, and each “cook” produced five to six ounces. Defendant’s live-in girlfriend stated that the two made methcathinone 12 times before she moved into defendant’s trailer, and twice after she moved in. Each “cook” yielded between five and six thousand dollars, and defendant sold the drug for $1,000 an ounce. The district court held defendant accountable for 70 ounces of methcathinone (14 “cooks,” with each “cook” yielding five ounces). Defendant argued that the district court failed to subject the information to special scrutiny under U.S. v. Beler, 20 F.3d 1428 (7th Cir. 1994) in light of the witnesses’ dual status as methcathinone addicts and government informants. The Seventh Circuit held that the district court properly applied the searching scrutiny required by Beler. The district court did not accept the associate’s statement at face value, but instead discounted it. The court found the girlfriend credible. The only evidence which conflicted with her statement was defendant’s self-serving statement that he had engaged in only 10 “cooks” producing three to four ounces each. U.S. v. Vold, 66 F.3d 915 (7th Cir. 1995).
7th Circuit upholds reliability of co-conspirators’ testimony. (770) The district court relied on the testimony of two co-conspirators to hold defendant accountable for between 50 and 150 kilograms of cocaine. Defendant argued that the witnesses were unreliable because they each had criminal records and had testified in exchange for lighter sentences, and there were discrepancies between their testimony and the PSR. The Seventh Circuit held that the court’s reliance on the co-conspirators’ testimony was not clearly erroneous. The witnesses’ criminal background did not by itself establish unreliability. The sentencing judge acknowledged that the witnesses were not models of virtue, but nonetheless found them credible. The witnesses’ motive for testifying was an issue for the court to examine. Although the statements did not match perfectly, the testimony was consistent “to the extent it brushed across common lines.” The court did not rely on disputed portions of the PSR. The fact that one witness was a heavy marijuana user at the time of the offense did not make her testimony unreliable. Her testimony consisted of a single, internally consistent statement that was corroborated in part by the other witness’s testimony. U.S. v. Garcia, 66 F.3d 851 (7th Cir. 1995).
7th Circuit affirms reliance on co-conspirator’s testimony to establish drug quantity. (770) Defendant was the leader of a drug conspiracy. He argued that the amount of drugs attributable to him was based on unreliable evidence and was not proven by a preponderance of the evidence. The Seventh Circuit disagreed, affirming the district court’s reliance on a co-conspirator’s testimony. Defendant’s sentence would remain the same whether attributed with the quantity of crack the trial court found (45 kilograms) or with an amount under 1.5 kilograms. The co-conspirator’s testimony, which was corroborated by defendant’s live-in girlfriend and several other witnesses, established that tremendous quantities of cocaine were distributed through defendant’s network of drug runners. The testimony also indicated that a large amount of the cocaine was in its base form—crack. U.S. v. Claiborne, 62 F.3d 897 (7th Cir. 1995).
7th Circuit holds that defendant waived challenge to court’s foreseeability finding. (770) Defendant challenged the sufficiency of the court’s finding about the amount of marijuana reasonably foreseeable to him for sentencing purposes. He complained that the court offered a “boilerplate explanation.” The Seventh Circuit held that this argument was waived, since it was not raised at sentencing. The district court is permitted the adopt findings of fact and calculations found within the PSR as support for its findings and conclusions. Moreover, the court’s findings were sufficient. Although defendant argued that the court made no findings as to why the hearsay evidence offered by the government was reliable, the hearsay was corroborated by another conspirator’s statement. The use of hearsay did not violate the Confrontation Clause. U.S. v. Salinas, 62 F.3d 855 (7th Cir. 1995).
7th Circuit holds that court’s “generic” foreseeability finding was supported by the evidence. (770) Defendant challenged the sufficiency of the reasons given to support his sentence. The Seventh Circuit found that it need address this issue since defendant did not object to the sufficiency of the court’s factual findings at the sentencing hearing. Moreover, the court’s “generic” explanation of the amount of drugs reasonably foreseeable to defendant was supported by the collected evidence. The district court considered the fact that defendant joined the conspiracy earlier than his brothers. The court went on to discuss in detail the additional evidence of defendant’s involvement in the conspiracy. The court also noted at the joint sentencing hearing that the government need not repeat the same evidence as to each defendant. A sentencing court may use evidence presented at the sentencing hearings of co-conspirators, provided the information is disclosed to defendant and he is given a reasonable opportunity to respond. Defendant’s PSR generally included the same information as that produced at the co-conspirator’s sentencing hearing. Even after all of the information was disclosed, defendant had the opportunity to object and failed to do so. U.S. v. Salinas, 62 F.3d 855 (7th Cir. 1995).
7th Circuit rejects claim that defendant could not rebut government evidence without incriminating himself. (770) Defendant claimed that the government constructively amended the indictment by presenting evidence of alleged conspiratorial acts that occurred prior to the date charged in the indictment. He argued that the alleged constructive amendment of the conspiracy charge had a prejudicial effect on his ability to defend himself at sentencing. Because he believed that the constructive amendment of the indictment was reversible per se, he argued that he could not take the stand during the sentencing hearing because his testimony could then be used against him in a subsequent retrial. The Seventh Circuit rejected this claim for two reasons. First, the government did not constructively amend the indictment. Second, defendant raised this argument for the first time in his reply brief, thus waiving the argument by failing to raise it in his initial brief. Moreover, this circuit had previously rejected a similar argument. U.S. v. Spaeni, 60 F.3d 313 (7th Cir. 1995).
7th Circuit refuses to examine credibility of government witness. (770) Defendant argued that a cooperating government witness was unreliable based on the witness’s cooperation agreement, his prior addictions to cocaine and heroin, and his impeachment through prior inconsistent statements. The Seventh Circuit rejected the claim. Defendant’s conviction demonstrated the jury’s belief, to some extent, of the witness’s testimony. In addition, the district court found the witness’s testimony regarding drug quantities specific and credible. An appellate court gives great deference to such credibility determinations. U.S. v. Saulter, 60 F.3d 270 (7th Cir. 1995).
7th Circuit rejects drug estimate based on arbitrary figure. (770) Defendant was involved in a cocaine base conspiracy. One conspirator testified that his drug selling activities involved a minimum of 874 grams of cocaine base. The district court attributed to defendant 18 grams he had been convicted of selling, plus 10 percent of the 874 grams. For various reasons, the court found it could not accept the full amount that the conspirator claimed. The Seventh Circuit reversed because the record suggested the court did not have sufficient faith in the conspirator’s testimony to use it as the basis for attributing further amounts to defendant. The court stated that the 10 percent multiplier was an arbitrary figure, but used it because it found there was significant evidence of a conspiracy. However, a finding that a defendant’s drug activity is substantial does not translate into a specific drug quantity finding. A court may not choose a random number simply because it believes that more drugs were involved than the sales indicated. U.S. v. Henderson, 58 F.3d 1145 (7th Cir. 1995).
7th Circuit upholds consideration of evidence from post-trial hearing of co-conspirators. (770) Defendant helped convict his co-conspirators by testifying at their trials. Several of the conspirators filed post-trial motions alleging improper government behavior, including that the government failed to inform the defense that defendant used illicit drugs during the period he was helping the government. The district court conducted lengthy evidentiary hearings which established that defendant had used illegal drugs and may have provided untruthful testimony about his drug use. The district court considered this evidence of defendant’s improper behavior in sentencing him. The Seventh Circuit held that considering this evidence from the post-trial hearings of defendant’s co-conspirators did not violate due process. Defendant received notice in his PSR that the evidence would be used in his sentencing. He had the opportunity to rebut the evidence, but made no effort to respond. U.S. v. Harris, 56 F.3d 841 (7th Cir. 1995).
7th Circuit relies on co-conspirator’s testimony to determine drug quantity. (770) The district court determined that one conspirator was responsible for about 5700 pounds of marijuana and another conspirator was responsible for about 5000 pounds of marijuana. The Seventh Circuit affirmed the drug quantity determinations, which were based on a co-conspirator’s testimony. Although defendants attacked the conspirator’s credibility as a witness, the district court heard all the testimony, observed the conspirator’s demeanor, and concluded that the conspirator was credible. U.S. v. Adames, 56 F.3d 737 (7th Cir. 1995).
7th Circuit approves hearsay testimony about conversations with confidential informant. (770) All transactions between the defendant and the informant were tape recorded and observed by federal agents. The Seventh Circuit upheld the district court’s consideration of testimony from the agents about conversations they had with the informant regarding his meetings with defendant. Hearsay evidence may be considered by a sentencing court if it is sufficiently reliable. The informant’s lies to defendant about his criminal background did not affect his credibility. The lies were to gain defendant’s trust and were part of the modus operandi of a trained informant. Although the informant did make an unauthorized purchase of cocaine, this would only have been relevant if his statements had been accepted for the truth of the matter asserted. Here, the transcripts of defendant’s conversations with the informant (which the informant helped prepare) were offered only to show defendant’s state of mind in selling the guns to the informant. U.S. v. Messino, 55 F.3d 1241 (7th Cir. 1995).
7th Circuit says departure of 2.2 times guideline sentence did not require higher standard of proof. (770) 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 uses documents containing hearsay. (770) Defendant was involved in a conspiracy to defraud banks and merchants by “kiting” checks that were stolen, forged or otherwise worthless. Defendant challenged the district court’s consideration of a document containing hearsay information. The document was a list of checks and deposit slips that was introduced in conjunction with the testimony of a postal inspector. The inspector said certain circled items on the list had been identified by the crime lab as containing defendant’s fingerprints. The Seventh Circuit upheld the court’s consideration of the document to determine that defendant’s role in the conspiracy was extensive. Defense counsel had the opportunity to cross-examine the inspector and challenge his claim that the circles identified items containing defendant’s fingerprints. Counsel made no effort to so this. U.S. v. Blackwell, 49 F.3d 1232 (7th Cir. 1995).
7th Circuit refuses to disturb lower court’s credibility findings. (770) The chief prosecution witness testified that he made at least 10 trips to Florida to pick up cocaine, and that on most trips he carried five kilograms, and on one trip he carried 10 kilograms. He also testified that he was not the only courier. Defendant, as head of the drug ring, was held responsible for the drug volume of the entire conspiracy, which the court determined was between 50 and 150 kilograms of cocaine. Defendant challenged the district court’s reliance on the courier’s testimony since the courier admitted lying in the past. The Seventh Circuit refused to disturb the district court’s credibility determination. The defendants did their best to impeach the courier, including showing previous lies, but the jury and court still found him credible. The jury and the trial judge are best qualified to judge the credibility of witnesses appearing before them. U.S. v. Plescia, 48 F.3d 1452 (7th Cir. 1995).
7th Circuit finds judge did not rely on material factual errors. (770) Defendant argued that the sentencing judge relied on factual errors when he denied defendant a § 3B1.2 role reduction. The Seventh Circuit ruled that the judge was well acquainted with the facts and did not rely on any material errors. The district court found that defendant had countermanded an undercover agent’s intention to use a pager to summon another agent to bring money. The fact that there was no pager, and the agent did not intend to bring money, was not significant. The important point was that defendant countermanded the agent’s plan, and directed the agent to get the money himself. The prosecutor’s reference to the location of “cocaine,” rather than the “package” was not a material misstatement, since they were the same. Finally, the judge’s statement that he did not recollect the original sentence did not show he was unfamiliar with the prior proceeding. He immediately refreshed his memory and familiarized himself with the sentence and its method of calculation. U.S. v. Soto, 48 F.3d 1415 (7th Cir. 1995).
7th Circuit upholds firearm enhancement based on testimony of co-conspirator. (770) Defendant pled guilty to drug conspiracy charges. The district court imposed a § 2D1.1(b)(1) enhancement based on a co-conspirator’s testimony that he had walked into a residence where defendant was packaging cocaine and that defendant had pulled a handgun on him. The 7th Circuit upheld the district court’s reliance on this evidence. The court did not need corroboration of this testimony, given that other statements by the co-conspirator were corroborated. The co-conspirator’s testimony was not unreliable simply because he had received certain benefits for testifying. Defendant failed to present any evidence other than his own testimony denying that he had a gun. Although the district court characterized the witnesses as “two liars,” it ultimately determined that the co-conspirator was more credible. U.S. v. Linnear, 40 F.3d 215 (7th Cir. 1994).
7th Circuit says court may rely on evidence from trial of co-conspirators where defendant had opportunity to rebut it. (770) Defendant pled guilty to drug conspiracy charges. The district court considered at sentencing evidence from the trial of defendant’s co-conspirators. The 7th Circuit held that evidence presented in another proceeding may be used to determine a defendant’s sentence if the defendant has an opportunity to rebut it or cast doubt on its reliability. These procedural safeguards were present here. Defendant’s presentence report put him on notice of the facts that the district court would consider in relation to the sentence enhancement. In response to defendant’s objections, the district court stated that the factual findings were supported by testimony presented at the trial of defendant’s co-conspirators. Defendant then had an opportunity to rebut the evidence. Having given defendant this opportunity, the district court was free to consider the evidence that it determined to be reliable. U.S. v. Linnear, 40 F.3d 215 (7th Cir. 1994).
7th Circuit refuses to vacate despite lack of findings where record supported determination. (770) Defendant argued that the district court did not make its own specific findings of record, but rather adopted the conclusory determinations in his PSR. The 7th Circuit agreed that the district court should have made specific findings as to the relevant quantity of drugs attributable to defendant. However, it would be “a futile act” to vacate defendant’s sentence simply because the sentencing court failed to follow proper procedure. The evidence in the sentencing record provided an adequate basis for the determination that defendant was involved in the distribution of over 15 kilograms of cocaine. Defendant did not demonstrate how the court’s failure to make specific findings as to the amount of cocaine for which he was responsible had any bearing on the calculation. U.S. v. Baker, 40 F.3d 154 (7th Cir. 1994).
7th Circuit holds that FBI agent’s hearsay testimony of drug quantity was reliable. (770) Defendant challenged the district court’s reliance on an FBI agent’s hearsay testimony to calculate the quantity of drugs involved in his offense. The 7th Circuit held that the hearsay evidence was sufficiently reliable to rely on at sentencing. Previous Circuit cases have held that the use of hearsay testimony does not violate the Confrontation Clause. However, a defendant is entitled to be sentenced on the basis of reliable information. Here, the district court found the agent’s testimony was reliable. The drug quantity testimony was corroborated by the summary record of the group’s Western Union money transfers. The sentencing judge presided at the co-defendants’ trial, and had the opportunity to hear the evidence from which the agent drew his hearsay testimony. Finally, defendant had ample opportunity to cross-examine the agent and present his side of the story. Defendant did not offer “a scintilla of evidence” to rebut the hearsay testimony. U.S. v. Francis, 39 F.3d 803 (7th Cir. 1994).
7th Circuit relies on supplier’s testimony to determine buyer’s drug purchases. (770) For over a year, defendant regularly purchased distribution size quantities of cocaine from a local drug supplier. The 7th Circuit held that the district court properly relied on the supplier’s testimony to hold defendant accountable for 22 kilograms of cocaine. To arrive at the 22-kilogram total, the district court began with defendant’s two half-kilogram purchases from 1988 and 1989 and added to them a kilogram for every month from January 1990 through September 1991. This estimate was based on the supplier’s testimony that he regularly sold cocaine to defendant during this period at two week to one month intervals, usually in quantities of one to two kilograms. This information was partially corroborated by recent entries in the supplier’s notebook. Defendant’s accusations of tampering were unsubstantiated and the court was entitled to reject them. U.S. v. Clay, 37 F.3d 338 (7th Cir. 1994).
7th Circuit upholds reliance on evidence from co-defendant’s trial. (770) Defendant argued that the district court improperly relied on evidence from a co-defendant’s trial at sentencing. Defense counsel concluded that the argument was groundless and sought to withdraw from appellate representation. The 7th Circuit agreed that there were no valid grounds for appeal, and granted counsel’s motion. The Federal Rules of Evidence do not apply at sentencing. U.S. v. Garcia, 35 F.3d 1125 (7th Cir. 1994).
7th Circuit relies on hearsay to find defendant attempted to escape from jail. (770) Defendant’s probation officer testified that he received a report from a guard stating that the guard found defendant standing on top of the toilet with his head protruding through a hole in the ceiling tiles. The district court found that defendant attempted to escape and enhanced his sentence for obstruction of justice. The 7th Circuit held it was proper to base the obstruction enhancement on this hearsay evidence. If defendant wanted the guard to testify, he could have subpoenaed him. Moreover, defendant did not object to the facts, he simply claimed that they did not support the conclusion that he was trying to escape. Although counsel suggested defendant was trying to commit suicide, the judge did not find this explanation credible. The fact finder’s selection of one of two reasonable choices cannot be clearly erroneous. Judge Curtin dissented. U.S. v. McGill, 32 F.3d 1138 (7th Cir. 1994).
7th Circuit upholds use of testimony from co-defendant’s sentencing hearing without notice to defendant. (770) The district court found that defendant held a leadership role in a fraud scheme, based in part on testimony from the accomplice’s sentencing hearing. Defendant argued that she was unfairly surprised by the use of this testimony without advance notice. The 7th Circuit upheld the use of the testimony from the co-defendant’s sentencing hearing. Defense counsel did not object to the use of the testimony or request a continuance. In addition, defendant did not demonstrate that the information was unreliable, nor did she establish to what extent the court relied upon it. The record corroborated the co-defendant’s statements that defendant was the leader of the enterprise. The facts admitted by defendant and contained in her PSR were sufficient by themselves to establish her leadership role. U.S. v. Anaya, 32 F.3d 308 (7th Cir. 1994).
7th Circuit upholds use of witness testimony to determine drug quantity. (770) Defendant argued that § 2D1.1 was unconstitutional because it allows quantities of controlled substances to be determined through potentially inaccurate testimony. The 7th Circuit upheld the constitutionality of § 2D1.1. Due process does not require the facts upon which a sentence is based to be correct beyond any doubt. Despite the potential inaccuracy of witness testimony regarding amounts, it is not unconstitutional to base a sentence on it as long as the court’s conclusions are supported by a preponderance of the evidence. Defendants are entitled to an opportunity to rebut any evidence presented regarding amount. All four government witnesses here were extensively cross-examined. U.S. v. Johnson, 32 F.3d 265 (7th Cir. 1994).
7th Circuit relies on accomplice testimony to hold defendant accountable for possession of third gun. (770) Defendant pled guilty to being a felon in possession of two firearms. The district court enhanced his sentence under § 2K2.1(b)(1)(A) for possession of a third firearm based on the testimony of his girlfriend and an associate named Bobby to whom he had sold the third gun. Defendant complained that the accomplice testimony was inherently unreliable, as evidenced by the fact that each accomplice later received favorable treatment by authorities. Moreover, Bobby’s attorney later contradicted Bobby’s statement that he had received the gun from defendant. The 7th Circuit found that the testimony sufficiently reliable to use at sentencing. The girlfriend’s statement that in February 1992 defendant planned to give a .38 caliber to a man named “Bob” was corroborated by Bobby’s statement that he had received the .38 from defendant in February 1992. The photo of defendant holding what appeared, from expert testimony, to be a .38 caliber revolver rendered these mutually-corroborating statements even more reliable. U.S. v. Lindsey, 30 F.3d 68 (7th Cir. 1994).
7th Circuit relies on detective’s testimony concerning defendant’s post-arrest admissions. (770) Defendant was arrested with between 20 to 35 grams of cocaine. The district court found that defendant was responsible for at least 104 grams of cocaine base in the course of several visits to Madison from Chicago. The estimate was based on a detective’s trial testimony about defendant’s post-arrest admissions. The 7th Circuit upheld the court’s reliance on the detective’s testimony rather than defendant’s testimony at trial. The jury and the sentencing court obviously found the detective more credible than defendant. Defendant failed to identify or delineate the unreliable nature of the detective’s testimony, which was corroborated by several other witnesses and a confidential informant. U.S. v. Robinson, 30 F.3d 774 (7th Cir. 1994).
7th Circuit upholds use of co-defendants’ testimony as to drug quantity. (770) Defendants complained that the testimony of their co-defendants’ as to drug quantity was not credible. They alleged that the witnesses may have had memory lapses and were seeking some benefit for themselves through testifying. The 7th Circuit rejected the claim. “Arguments centered on credibility of witnesses and weight given to testimony at trial generally do not get very far on appeal.” Defendants failed to identify any specific instances in the record to support their allegations. Beyond their general argument, they presented no argument and cited no authority relating to the credibility or reliability of the witnesses. Moreover, much of the court’s calculation was based on defendants’ own testimony. U.S. v. Nash, 29 F.3d 1195 (7th Cir. 1994).
7th Circuit relies on prosecutor’s hearsay statement that defendant’s perjury caused additional witnesses to be called. (770) Defendant lied before a grand jury and was convicted of perjury. The district court enhanced his sentence under § 2J1.3(b)(2) for causing the unnecessary expenditure of substantial governmental or court resources. A prosecutor told the probation officer that defendant’s perjury caused the grand jury to summon five additional witnesses from as far away as Texas. The 7th Circuit found that this hearsay was sufficiently reliable for the court to rely upon it at sentencing. The district court was sufficiently impressed by the reputation of the U.S. Attorney’s office to credit the prosecutor’s statement. Defendant could have challenged the hearsay by presenting his own evidence, questioning the prosecutor and the case agents, and demanding that they produce documentation to support their claims. U.S. v. Atkin, 29 F.3d 267 (7th Cir. 1994).
7th Circuit upholds officer’s estimate of portion of drugs defendant kept for personal use. (770) The district court held defendant accountable for between 500 grams and 2 kilograms of cocaine. Evidence showed that defendant purchased nearly $60,000 worth of cocaine. Defendant was a heavy drug user, and claimed it was all for personal use. The 7th Circuit upheld the district court’s reliance on a police officer’s estimate that defendant sold 50 percent of the cocaine he acquired. The estimate was reasonable based on the officer’s investigation. There was evidence that defendant was involved in a number of cocaine sales, that sales were made from his liquor store, and defendant admitted making 60 to 100 trips to Milwaukee to purchase cocaine. The information contained sufficient indicia of reliability. U.S. v. Mumford, 25 F.3d 461 (11th Cir. 1994).
7th Circuit holds court did not adequately examine inconsistent drug quantity evidence. (770) The district court attributed an additional 592 grams of cocaine to defendant based on (a) an affidavit from a former friend stating that he had bought 15 to 20 ounces from defendant over a 15-year period, and (b) trial testimony from another witness who claimed to have purchased six to seven ounces of cocaine from defendant during the last three to four years. The 7th Circuit remanded for a re-examination of the evidence. The friend’s first affidavit stated that he had purchased between 150 and 200 ounces from defendant; a second affidavit stated that the actual quantity was 15 to 20 ounces. However, at trial, the friend was unable to estimate the quantity of cocaine he had purchased. In addition, although the affidavit said he had purchased drugs over a 16-year period, at trial he said 10 years. Moreover, although the affidavit stated that he had known defendant for 30 years, at trial, he said 10 or 12 years. Finally, the friend was a cocaine addict during most of the time. All of these factors lent some doubt to the affidavit’s reliability, yet the district court never addressed the matter. U.S. v. Beler, 20 F.3d 1428 (7th Cir. 1994).
7th Circuit upholds use of co-defendant’s testimony at plea hearing despite defendant’s inability to cross-examine. (770) The 7th Circuit affirmed the district court’s reliance on a co-defendant’s testimony even though defendant was not given the opportunity to cross-examine him. The district court found that the testimony was reliable because the co-defendant testified under oath at his guilty plea hearing and that testimony was substantially corroborated by the reports of the case agents and the facts surrounding the arrest. U.S. v. Smith, 3 F.3d 1088 (7th Cir. 1993).
7th Circuit says use of polygraph results at sentencing was not plain error. (770) Defendant argued for the first time on appeal that the district court improperly admitted at sentencing the results of a polygraph examination of a prosecution witness without first reviewing the questions submitted to the witness. The 7th Circuit affirmed. Because defense counsel failed to make this objection below, it was deemed to be waived on appeal absent plain error. There was no plain error. While conceding that the witness’s request for a polygraph test and his favorable results were one “factor” among many that supported his credibility, the court recognized that polygraph tests are not an entirely reliable indication of veracity. The judge also stated that he would not infer from the polygraph evidence that defendants were deceitful because they had refused to take a similar test. U.S. v. Pitz, 2 F.3d 723 (7th Cir. 1993).
7th Circuit says presence of young men at abandoned house did not show defendant’s leadership role. (770) The 7th Circuit ruled that there was insufficient evidence that defendant was the leader of criminal activity involving five or more participants. An informant told a government agent that defendant used 10 to 15 teenagers to distribute crack from an abandoned house. But the informant was not always reliable and tended to exaggerate. The informant never identified any of the teenage “distributors.” Although five teenage males were found “camping out” at the house, there was no evidence tying them to defendant. The presence of the young men, without evidence of drug activity, was “without weight” and could not be considered in evaluating the enhancement. U.S. v. Johnson, 999 F.2d 1192 (7th Cir. 1993).
7th Circuit upholds sentencing felon in possession of firearm under aggravated assault guideline. (770) Under 2K2.1(c), a defendant convicted of being a felon in possession of a firearm is sentenced as if he was convicted of another offense if he possessed the firearm in the commission of that offense. Defendant argued that being sentenced under the aggravated assault guideline violated his right to confront and cross-examine witnesses and to be found guilty beyond a reasonable doubt. The 7th Circuit disagreed, relying on circuit precedent. It rejected defendant’s argument that past cases did not control because he had pled guilty rather than standing trial. The hearsay relied upon to conclude that defendant had committed an aggravated assault was reliable, and was corroborated by non-hearsay evidence. U.S. v. Corbin, 998 F.2d 1377 (7th Cir. 1993).
7th Circuit finds that hearsay where declarants incriminated themselves was reliable. (770) The 7th Circuit upheld the use at sentencing of a government agent’s summary of other people’s statements regarding defendant’s involvement in a drug conspiracy. The testimony had sufficient indicia of reliability to support its probable accuracy. It came from a government agent who obtained his information during interviews with other co-conspirators. Most of the statements made by others to the agents incriminated the person speaking as well as defendant. U.S. v. Wagner, 996 F.2d 906 (7th Cir. 1993).
7th Circuit upholds drug estimate based upon hearsay testimony. (770) The 7th Circuit upheld the district court’s determination that defendant was responsible for 2750 pounds of marijuana based on a witness’s hearsay testimony that he delivered this quantity to defendant in 1986. Although there was some evidence the witness was unreliable, his testimony was corroborated by two sources: (1) another co-conspirator testified that the witness was responsible for selling marijuana to defendant, and (2) DEA seizure reports and the trial testimony of another conspirator confirmed that the witness delivered 730 pounds of marijuana to defendant in September 1986. U.S. v. Johnson, 997 F.2d 248 (7th Cir. 1993).
7th Circuit upholds use of hearsay corroborated by independent records and transcripts from prior recorded proceedings. (770) The 7th Circuit rejected defendant’s claim that the exclusive use of hearsay testimony at his sentencing hearing denied him due process. The district court found that hearsay evidence reliable because it was corroborated by sworn testimony recorded from earlier criminal trials of defendants’ other co-conspirators and from related grant jury proceedings. Other circumstantial evidence, consisting of police arrest records, hotel records, telephone records and Western Union records, further corroborated the hearsay. Defendant was well aware that hearsay evidence would be used against him at sentencing and was afforded a reasonable opportunity to cross-examine the DEA agent testifying or present witnesses on his own behalf. U.S. v. Johnson, 997 F.2d 248 (7th Cir. 1993).
7th Circuit permits reliance on co-conspirators’ testimony if defendant can review transcript. (770) Defendant’s co-conspirators were tried shortly after defendant pled guilty, and the district court relied on testimony at that trial in arriving at defendant’s sentence. The 7th Circuit concluded that this is permissible if the defendant is given adequate notice and an opportunity to review the transcript and object to the evidence. Defendant waived any objection in this case by failing to request time to review the transcript after the district court announced its intention to rely on the evidence. There was no plain error because defense counsel could not identify any evidence from the transcript that was inaccurate or otherwise inappropriate for consideration. U.S. v. Morales, 994 F.2d 386 (7th Cir. 1993).
7th Circuit would permit appeal if court relied on false evidence in declining to depart further. (770) Defendant argued that the district court should have departed further downward than it did. He said the court should not have relied on his first confession to determine drug quantity, because that confession was unreliable. The 7th Circuit concluded that the failure to depart further could be appealed if it was based on a factual error that would rise to the level of a due process violation. However, because the defendant could not cast “grave doubt as to the veracity of the information,” and because he could not show that the district court had relied on the information in deciding not to depart further, relief was denied. The district court’s mention of the amount of drugs did not demonstrate that the court relied on that fact. Nor was the difference enough to suspect that it influenced the court’s decision; it was not even enough to alter defendant’s guideline range. U.S. v. Harris, 994 F.2d 412 (7th Cir. 1993).
7th Circuit rules that defendant had burden of presenting evidence that PSR allegations were unreliable. (770) 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 reliance at sentencing on grand jury testimony excluded at trial. (770) The district court sentenced defendant at the top of the guideline range because it was convinced that defendant was “a big drug dealer.” Defendant claimed that the court could only have reached this conclusion by improperly relying on the grand jury testimony of his live-in girlfriend. She testified before the grand jury that defendant operated a large cocaine ring out of his home, netting $5,000 a day. She was unavailable at trial and the trial court excluded her testimony as hearsay. The 7th Circuit held that the district court could properly consider this evidence at sentencing as evidence of the scope of defendant’s cocaine operation. The testimony was corroborated by the testimony of DEA agents and a co-conspirator. Defendant had numerous opportunities to contest and challenge the credibility of all the evidence against him, and he did so vigorously. U.S. v. Campbell, 985 F.2d 341 (7th Cir. 1993).
7th Circuit upholds reliance on husband’s proffer to reject minor role reduction. (770) Defendant and her husband were convicted of drug conspiracy charges. The 7th Circuit upheld the district court’s reliance upon the husband’s immunized pretrial proffer to deny defendant a reduction based upon her minor role in the conspiracy. In the proffer, the husband said that he told defendant on the day of the transaction that he was going to assist others in buying cocaine, and that defendant had agreed to join him. He also said that defendant was fully aware that he placed a weapon in her purse before they left their residence. The district court found that defendant had lied to the magistrate during her husband’s detention hearing when she testified that she did not know where they were going in her car and that she knew nothing about the drug deal. The fact finder’s choice between two permissible views of the evidence cannot be clearly erroneous. U.S. v. Gunning, 984 F.2d 1476 (7th Cir. 1993).
7th Circuit relies on co-conspirator’s proffer to the government during plea hearing. (770) The district court determined that defendant supplied 36 kilograms of cocaine to a conspiracy, based in part upon a co-conspirator’s proffer to the government when he pled guilty. Defendant argued that the proffer conflicted with the evidence at trial, and therefore was completely unreliable. Moreover, he claimed a 6th Amendment violation his right to cross-examine the witness, because the co-conspirator neither testified at trial nor at the sentencing hearing. The 7th Circuit affirmed that the co-conspirator’s proffer could be considered for sentencing purposes. A review of the trial transcript revealed no conflict with the proffer. Defendant’s 6th Amendment claim was also rejected: a convicted defendant does not possess a constitutional right to cross examine a person who provides the government with information that is later used during sentencing. U.S. v. Badger, 983 F.2d 1443 (7th Cir. 1993).
7th Circuit affirms upward departure despite attempt to impeach witness’s credibility. (770) Defendant received an upward criminal history departure based on a co-conspirator’s testimony that he had engaged in several drug transactions with defendant in 1987, several years before the instant drug conspiracy. The 7th Circuit affirmed that this information was sufficient to support the departure, despite the witness’s alleged memory loss and prior inconsistent statement to law enforcement officials. A witness is not unreliable simply because he is impeachable. There was no clear error simply because the district court believed the witness in spite of defense attorneys’ attempts to impeach him. The court also rejected defendant’s claim that trial counsel was ineffective for failing to object to the factual basis for the departure. The district court was aware of the facts that undermined the witness’s credibility, so defendant was not prejudiced by his attorney’s failure to bring those facts to the court’s attention. U.S. v. Villasenor, 977 F.2d 331 (7th Cir. 1992).
7th Circuit defers to lower court’s credibility determination in affirming drug quantity involved in conspiracy. (770) Defendant conceded that the 361.6 grams of cocaine seized the night of her arrest could be attributed to her conspiracy, but contended that the district court erred in finding a total of 576.6 grams of cocaine were involved in this conspiracy. The only evidence of this additional cocaine was the testimony of a co-conspirator, who defendant contended was not credible. The 7th Circuit upheld the district court’s quantity determination, deferring to the district court’s determination of the co-conspirator’s credibility. “[I]t is the district court’s job to assess the credibility of witnesses who testify on matters relating to sentencing. We are not ‘left with the definite and firm conviction that a mistake has been committed by the district court.’“ U.S. v. Villasenor, 977 F.2d 331 (7th Cir. 1992).
7th Circuit upholds reliance upon civil depositions at sentencing. (770) Defendant argued that the district court erroneously considered at sentencing depositions obtained from a civil action. The depositions indicated that defendant had previously committed a crime similar to the offense of conviction. The 7th Circuit affirmed that the depositions had sufficient indicia of reliability to be considered by the sentencing court. They were statements taken under oath in an adversarial proceeding in district court. The admission of the deposition testimony did not violate defendant’s 6th Amendment right to confront witnesses. Defendant had every opportunity to rebut the impact of the deposition testimony, but he never argued that the matters described in the depositions were false. U.S. v. Helton, 975 F.2d 430 (7th Cir. 1992).
7th Circuit refuses to consider defendant’s Confrontation Clause claim. (770) Defendant alleged that he was denied his 6th Amendment right to confront witnesses because his accuser did not testify at the sentencing hearing. The 7th Circuit refused to address this constitutional claim. When the deposition of the accuser was admitted at sentencing, defendant’s counsel objected only on the issue of reliability. Thus, the 6th Amendment claim was waived. Moreover, on appeal, defendant cited no case law in support of his argument and failed to support his contention with facts from the record. Without a factual or legal basis before the appellate court, it was unnecessary to consider defendant’s bare allegation of a 6th Amendment violation. U.S. v. Mason, 974 F.2d 897 (7th Cir. 1992).
7th Circuit upholds reliance on probation officer’s testimony which contradicted testimony by defendant. (770) Defendant committed a forcible rape while in illegal possession of a firearm. He contended the district court improperly relied upon the testimony of his probation officer, who testified that defendant told her during an interview that he did not have sexual intercourse with the victim on the night of his arrest. In contrast, at sentencing, defendant claimed that he had consensual intercourse with the victim. The 7th Circuit rejected the argument, since it was essentially an argument that the district court made an incorrect credibility determination. Defendant offered nothing on appeal, aside from his own uncorroborated version of the facts, to demonstrate that the sentencing court’s credibility determinations were clearly erroneous. U.S. v. Mason, 974 F.2d 897 (7th Cir. 1992).
7th Circuit upholds reliance on testimony of co-conspirator. (770) The district court found that defendant possessed in excess of seven kilograms of cocaine based on a co-conspirator’s trial testimony concerning various deliveries and sales of cocaine to defendant. Defendant contended that it was improper to rely upon such testimony because it was unreliable and uncorroborated. The co-conspirator testified as part of his plea agreement, he admitted lying at his own sentencing shortly before defendant’s trial and his testimony at trial differed significantly from what he had told police three months earlier. Nonetheless, the 7th Circuit upheld the reliance upon the co-conspirator’s testimony. The information the co-conspirator gave was not totally uncorroborated: a yellow purse containing $14,000 was recovered from defendant’s home. U.S. v. Soria, 965 F.2d 436 (7th Cir. 1992).
7th Circuit upholds reliance upon testimony by victim’s psychologist. (770) The 7th Circuit affirmed the district court’s reliance upon testimony by the psychologist of the victim of defendant’s fraud as to the abuse the victim suffered from defendant. The victim herself did not testify. Although the psychologist’s testimony was hearsay, the rules of evidence do not apply to sentencing hearings. Moreover, the testimony would have been admissible under the exception to the hearsay rule for statements for purposes of medical diagnosis or treatment. In addition, if defendant and his counsel had really thought that the victim would contradict the psychologist’s story, they would have made a more serious effort to subpoena her. Instead, they handed the subpoena to the victim’s father (who had previously tried to kill defendant) the day before sentencing without determining whether the victim even lived with her father, which she did not. U.S. v. Newman, 965 F.2d 206 (7th Cir. 1992).
7th Circuit upholds reliance upon hearsay where defendant was given opportunity to rebut. (770) The district court denied defendant a reduction for acceptance of responsibility based in part on defendant’s presentence report which alleged that he made a threat against a security officer. The 7th Circuit affirmed the district court’s consideration of such threat because defendant had ample opportunity to rebut the hearsay allegation. Had defendant agreed to speak to the probation officer, he could have presented his side of the story. He did rebut the allegation in his objection to the presentence report, and he and his attorney were both given the opportunity to present their views during the sentencing hearing. The hearsay evidence was worthy of credence because it was supported by the fact that defendant had only recently assaulted another corrections officer. U.S. v. Beal, 960 F.2d 629 (7th Cir. 1992).
7th Circuit affirms calculation of drug quantity based on police officer’s testimony. (770) The 7th Circuit found no merit in defendant’s claim that the district court incorrectly calculated the amount of cocaine involved in his conspiracy. The most that defendant could establish was that another permissible view of the evidence existed; defendant merely questioned the district court’s decision to credit an officer’s testimony that defendant admitted to delivering six to eight pounds of cocaine. The district court was in the best position to evaluate the credibility of witnesses. U.S. v. Levy, 955 F.2d 1098 (7th Cir. 1992).
7th Circuit affirms reliance on evidence contradicted only by defendant’s uncorroborated testimony. (770) Defendant contended that his due process rights were violated by the district court’s reliance upon inaccurate information. The 7th Circuit upheld the district court’s determination, noting that defendant offered nothing to show the inaccuracy of the facts, other than his own uncorroborated testimony. Defendant did nothing to disprove the hearsay evidence against him except to deny the allegations. It was “no surprise” that the district court did not find defendant credible after defendant denied at his plea hearing that he had obtained cocaine from one of his co-conspirators and then admitted this fact at his sentencing hearing. The judge stated that he doubted defendant’s credibility for other reasons as well, such as not being able to remember the names that corresponded to the initials of his cocaine customers in his calendar. U.S. v. Musa, 946 F.2d 1297 (7th Cir. 1991).
7th Circuit upholds use of hearsay testimony from co-defendant’s cellmate. (770) Defendant was convicted of constructing and placing more than a dozen bombs around a town. The district court sentenced defendant under guideline 2K1.4(c)(1) for having intended to cause bodily injury. Defendant claimed it was error for the district court to consider hearsay testimony in determining his sentence. The former cellmate of a co-defendant testified that the co-defendant told the cellmate that the co-defendant intended to kill a certain attorney with one of the bombs. The co-defendant’s attempted murder of the attorney was attributable to defendant as a co-conspirator. The testimony was corroborated by the fact that the bomb found at the attorney’s office was twice the size of any other bombs. The number of bombs and placement in the center of town, under bridges, and in other dangerous locations further evidenced the conspirator’s intent to kill or cause injury. U.S. v. Hubbard, 929 F.2d 307 (7th Cir. 1991).
7th Circuit upholds sufficiency of evidence to determine cocaine quantity. (770) Defendant coordinated a drug importation and distribution network that paid couriers to transport drugs and money between various locations. Defendant contended that his offense level of 32 was incorrect because the prosecution did not prove that the contents of various courier packages contained 18.5 kilograms of cocaine. The 7th Circuit rejected defendant’s contention. The prosecution proved that the couriers made at least 16 trips carrying one to three packages of cocaine per trip. The last packages delivered prior to defendant’s arrest contained cocaine. Some of the couriers saw cocaine in several of the packages, and defendant was observed weighing and packaging cocaine in his hotel room. On several occasions, defendant and others informed the couriers that they were carrying kilogram amounts in each package, and that each package would bring between $12,000 and $16,000. This evidence was sufficient for the jury to convict defendant, and therefore was sufficient for purposes of proving the amount of cocaine for sentencing. U.S. v. McKenzie, 922 F.2d 1323 (7th Cir. 1991).
7th Circuit upholds reliance upon drug ledger in calculating drug quantity. (770) Defendant contended that he did not receive adequate notice that the district judge would rely on a drug ledger to determine the quantity of drugs involved in his conspiracy. The 7th Circuit found that the district court complied with guideline § 6A1.3 and Fed. R. Crim. P. 32. At the sentencing hearing, the judge discussed the testimony of the government agent concerning the drug quantities contained in the ledger. This was more than sufficient to alert defendant that the court would rely on the agent’s testimony in determining the quantity of drugs that would be used to set defendant’s offense level. U.S. v. Cagle, 922 F.2d 404 (7th Cir. 1991).
7th Circuit upholds use of hearsay in sentencing hearing. (770) Defendant contended that the evidence did not support the district court’s determination that he sold more than five kilograms of cocaine. The 7th Circuit upheld the determination, which was based on hearsay testimony. The court noted that hearsay was a staple in sentencing, and “[n]othing shows that the evidence was false or perjured; [defendant’s] disagreement with the substance of the evidence is not a constitutional objection to its use.” U.S. v. Escobar-Mejia, 915 F.2d 1152 (7th Cir. 1990).
7th Circuit finds that sentence did not violate defendant’s immunity agreement. (770) The government was aware that defendant possessed and distributed at least 12 ounces of cocaine. He pled guilty to possessing two ounces of cocaine. Following defendant’s arrest, he received a grant of immunity and acknowledged to authorities his involvement in cocaine deliveries substantially beyond 12 ounces. Defendant’s original presentence report suggested an enhanced sentence on the basis of defendant’s admitted involvement in larger quantities of cocaine. The probation office caught its error, and amended the presentence report to state that the base offense level should be based upon “provable offense behavior, excluding any information provided by the defendant with a grant of immunity.” The district court sentenced defendant on the basis of 12 ounces, and then departed downward. The 7th Circuit, finding there was no evidence that the district court relied on any evidence derived from defendant’s immunized statements, upheld the district court’s action. U.S. v. Heilprin, 910 F.2d 471 (7th Cir. 1990).
7th Circuit upholds sentencing defendant on the basis of uncharged conduct. (770) Defendant lied to a grand jury concerning his relationship with a college football player. When he was brought before the grand jury to correct his misstatements, he lied again and produced false documents to support his falsehoods. Defendant pled guilty to one count of perjury, and received an upward adjustment for obstruction of justice. Defendant argued that since the indictment only alleged he impeded the investigation of his relationship with the football player, it was improper to make an upward adjustment based upon his impeding the perjury investigation. The 7th Circuit rejected this argument, noting that the guidelines specifically allow a court to calculate a sentence based on conduct that is not charged, but that relates to the same course of conduct — “so long as the evidence . . . is sufficiently reliable.” U.S. v. Leuddeke, 908 F.2d 230 (7th Cir. 1990).
7th Circuit affirms use of officer’s testimony to determine weight of drugs. (770) Defendant offered cocaine to an undercover officer at an initial “buy” meeting but did not sell the officer the cocaine. At sentencing, the officer testified that defendant possessed 2 to 3 ounces of cocaine. Despite a lack of testimony that the officer had ever seen or weighed cocaine, the 7th Circuit held that under guidelines § 6A1.3, the district court properly relied on the officer’s estimate based on the officer’s background as a narcotics officer. U.S. v. Buggs, 904 F.2d 1070 (7th Cir. 1990).
7th Circuit upholds reliance on defendant’s confession to increase his sentence. (770) The defendant’s confession revealed that he dealt in a substantially larger quantity of drugs than the government had suspected or had charged him with dealing. Thus the trial judge increased his sentence from 18 months to 71 months. The 7th Circuit affirmed, ruling that reliance on the confession did not violate any agreement not to use the defendant’s cooperation against him. The court found that the district court’s ruling that the confession was voluntary was not clearly erroneous. Moreover, the district court was not clearly erroneous in concluding that the additional amounts of drugs “were part of the same course of conduct or common scheme or plan” as the sale of which the defendant was convicted. U.S. v. Rutledge, 900 F.2d 1127 (7th Cir. 1990).
7th Circuit upholds district court’s calculation of amount of cocaine involved in the conspiracy. (770) The district court calculated the amount of cocaine involved in the conspiracy on the defendant’s own admission to the agent that he received approximately one ounce of cocaine every three weeks from his source. The court found that the conspiracy lasted approximately three months. The 7th Circuit held that these findings were not clearly erroneous, and the district court properly considered this information in sentencing the defendant. U.S. v. Miller, 891 F.2d 1265 (7th Cir. 1989).
7th Circuit rules use of corroborated hearsay is permissible at sentencing. (770) The 7th Circuit held that a sentencing court may consider hearsay presented through the testimony of a government agent in sentencing a defendant convicted of bank fraud, particularly where the hearsay was corroborated by circumstantial evidence and the defendant had an opportunity to cross examine. However, the sentence had to be vacated so that the defendant could be resentenced under the guidelines, which the district court had held unconstitutional before Mistretta was decided. Although the court had stated an alternate guideline sentence, the 7th Circuit stated that the ultimate decision as to the sentence would rest with the district court on remand. U.S. v. Agyemang, 876 F.2d 1264 (7th Cir. 1989).
8th Circuit upholds reliance on roommates’ testimony to establish drug quantity. (770) Defendant challenged the court’s reliance on testimony from Henderson and Warren, an engaged couple who lived with defendant, to determine that defendant was accountable for between 500 grams and 1.5 kilograms of methamphetamine. The roommates testified that they drove defendant to his supplier and observed defendant handle guns. Defendant argued that Henderson was not a credible witness because she was uncertain about the number of times she drove defendant to purchase methamphetamine, and she was a “jilted lover” who was “testifying under a grant of immunity.” The Eighth Circuit found no clear error and upheld the court’s drug-quantity determination. “It is well established that in sentencing matters a district court’s assessment of witness credibility is quintessentially a judgment call and virtually unassailable on appeal.” U.S. v. Rodriguez, 711 F.3d 928 (8th Cir. 2013).
8th Circuit reverses for allowing evidence of drug quantity that exceeded stipulated amount. (770) Defendant pled guilty to methamphetamine charges pursuant to a plea agreement that stipulated that he was accountable for between 20 and 35 grams of methamphetamine. The PSR, however, indicated that defendant was responsible for a much larger quantity. The district court found defendant responsible for the PSR’s quantity, resulting in an increased offense level and sentencing range. The Eighth Circuit held that the court plainly erred in allowing the government to introduce evidence to raise the stipulated drug quantity. The government’s presentation of evidence to support the PSR’s drug quantity breached the plea agreement. Defendant’s substantial rights were affected because his top/bottom guidelines range was increased by 30/37 months, his 130-month sentence was outside the plea agreement’s guidelines range, and defendnat likely received a longer prison sentence because of the error. U.S. v. Lara, 690 F.3d 1079 (8th Cir. 2012) No. 11-3850.
8th Circuit finds court did not consider facts in undisclosed sentencing recommendation. (770) Defendant defrauded a victim whom he convinced to invest in an entirely fictional business. He argued that the court violated his Fifth Amendment right to due process and his Sixth Amendment right to confrontation by relying on factual allegations in a confidential sentencing recommendation prepared by the probation office that he was not allowed to see or challenge. The Eighth Circuit rejected this argument, because when challenged on this issue, the district court explicitly stated that it was not relying on any facts in the confidential recommendation in reaching its sentencing decision. The court further explained that its references at sentencing to information in the confidential recommendation were solely for the purpose of “looking for any way to recover any of this [money] … to see if there is any way at all to get any recovery for this poor woman he fleeced.” U.S. v. Godat, 688 F.3d 399 (8th Cir. 2012).
8th Circuit upholds reliance on hearsay testimony by DEA agent. (770) Defendant argued that the district court erred at sentencing when it considered hearsay testimony that he had worked as a Mexican police officer, and that indicated the existence of outstanding warrants for his arrest in Mexico. The Eighth Circuit held that the court did not err in relying on the hearsay testimony. The testimony was given at sentencing by a member of the Tri-State Drug Task Force unit of the DEA, who testified that he had spoken with a DEA agent in Mexico who gave him this information. The hearsay testimony had sufficient indicia of reliability and defendant had the opportunity to rebut it. U.S. v. Rodriguez-Ramos, 663 F.3d 356 (8th Cir. 2011).
8th Circuit upholds consideration of defendant’s lack of contrition during allocution. (770) Defendant argued for the first time on appeal that the district court considered an improper factor – namely, his lack of contrition during allocution – in determining his sentence. The Eighth Circuit, relying on U.S. v. Hildebrand, 152 F.3d 756 (8th Cir. 1988), abrogated on other grounds by Whitfield v. U.S., 543 U.S. 209 (2005), disagreed. Hildebrand held that a defendant’s right to allocution is not violated “if the district court considers defendant’s attitude, demeanor, and outrageous protestation of innocence in exercising its sentencing discretion.” U.S. v. Robinson, 662 F.3d 1028 (8th Cir. 2011).
8th Circuit upholds reliance on FBI reports that defendant recanted previous admission. (770) At sentencing, the government submitted FBI reports from defendant’s interviews on August 14, 2008 and January 6, 2010. These reports recounted that, in an August 14, 2008 interview, defendant admitted his criminal conduct. However, in a January 6, 2010 interview, defendant recanted those very admissions, denying his criminal conduct. The Eighth Circuit held that the district court properly considered the FBI reports in denying defendant an acceptance of responsibility reduction. The rules of evidence do not apply in the context of sentencing hearings, and courts may rely on hearsay or other typically inadmissible evidence if that evidence bears sufficient indicia of reliability. Defendant did not object to the factual findings contained in the PSR, including that defendant had recanted his previous statements to law enforcement. U.S. v. Shade, 661 F.3d 1159 (8th Cir. 2011).
8th Circuit relies on California “Report-Indeterminate Sentence” in applying modified categorical approach. (770) Defendant pled guilty to illegal reentry into the U.S. after deportation, and received a 12-level enhancement under § 2L1.2(b)(1)(B) for a prior “felony drug trafficking offense for which the sentence imposed was 13 months or less.” Defendant argued that the statute, California Health & Safety Code § 11351, was over-inclusive because it prohibits the sale of some substances that are not “controlled substances” under the federal Controlled Substances Act. The Eighth Circuit affirmed the enhancement, finding that even if § 11351 was not categorically a drug trafficking felony, this particular conviction qualified as a “drug trafficking offense” under the Supreme Court’s modified categorical approach. The “Report-Indeterminate Sentence,” produced by the government, stated that defendant pled guilty to possessing heroin for sale. This was the type of reliable and accurate judicial record on which a court may rely. It is an official court document prepared and signed by a deputy clerk of the court. The state court was required to complete the report pursuant to California law. The document was filed by the state court, and defendant could have examined it and urged the state court to correct any inaccuracies. The fact that the report did not indicate the type of plea entered was irrelevant. The enhancement depends on a conviction for a felony drug trafficking offense, not an explicit admission of guilt. U.S. v. Benitez-De Los Santos, 650 F.3d 1157 (8th Cir. 2011).
8th Circuit finds that California controlled substance offense was “drug trafficking offense.” (770) Defendant received a 16-level enhancement because he had been deported after a felony conviction for “a drug trafficking offense” under § 2L1.2(b)(1)(A)(i). He argued that the government failed to prove that he was convicted of an offense involving a controlled substance. California Health & Safety Code §11378 bars possession of a controlled substance for sale. However, California law defines “controlled substance” differently than federal law, so a California conviction may not be a “controlled substance offense” or “a drug trafficking offense” under the federal guidelines. Nonetheless, the Eighth Circuit ruled that the conviction here qualified as a predicate offense triggering the 16-level enhancement. The charging documents sufficiently identified the substance involved as methamphetamine, which is a drug listed in the federal drug schedules. The government also introduced additional documents – an order of court, clerk minutes, and violation minutes. The evidence included documents signed by defendant that said he pled guilty and included the same case number and statute as the charging document. U.S. v. Sanchez-Garcia, 642 F.3d 658 (8th Cir. 2011).
8th Circuit permits victim stores to testify about national losses from shoplifting rings. (770) Defendant was arrested driving a van full of large quantities of goods that had been stolen from stores. She argued that the district court erred in permitting representatives from the victim retailers to testify at her sentencing hearing pursuant to the Crime Victims’ Rights Act of 2004 (CVRA), 18 U.S.C. § 3771, about matters beyond the scope of her offense. In particular, they testified “about retail theft losses they suffered annually nationwide from all organized retail thefts.” The Eighth Circuit found no error. A district court is not limited at sentencing to only hearing information “within the scope of the offense.” Such a rule would deprive the district courts of information which could aid them in determining whether to vary from the Guidelines based upon policy considerations. The district court did not err in allowing the merchants to testify as to their national losses in this case. U.S. v. Ortiz, 636 F.3d 389 (8th Cir. 2011).
8th Circuit says Shepard did not bar court from considering prior PSR to prove prior conviction (770). To show that defendant had been convicted in 1988 of burglary in Maryland, for purposes of proving that defendant qualified as an armed career criminal, the government offered a PSR prepared after a 1999 drug conviction. The 1999 PSR stated that in 1988 defendant was found guilty of burglary in Maryland. Citing Shepard v. U.S., 544 U.S. 13 (2005), the district court held that the case history and 1999 PSR could not be considered to show defendant was convicted of burglary in 1988. The Eighth Circuit disagreed. Shepard’s limitation of evidence is addressed only to those situations where a later court is determining the character of the prior conviction. The limitation does not apply to antecedent factual questions such as whether the defendant was convicted of a crime at all, or of which crime the defendant was convicted. Moreover, it was unnecessary to decide which subsection of the statute defendant was convicted of violating, because all convictions under the statute were violent felonies. U.S. v. Webster, 636 F.3d 916 (8th Cir. 2011).
8th Circuit affirms obstruction increase based on testimony of threats to co-conspirator. (770) At defendant’s sentencing hearing, Duran, a co-conspirator, testified that defendant threatened and assaulted him while the two were in prison. Duran testified that while he was sitting on a bench in the booking area, defendant crossed the room in a line of inmates. As defendant passed Duran, he stepped out of the line, slapped Duran, and said in Spanish that Duran was a “traitor” and that he would “lose out or be killed.” A security guard testified at the sentencing hearing that he heard a “smacking noise” but did not see defendant strike Duran. However, the guard reviewed a security recording to confirm that the slap occurred. The guard also testified that he heard defendant say something to Duran near the time of the slap, but since he did not speak Spanish, he could not confirm that defendant had threatened Duran. The Eighth Circuit upheld an obstruction of justice enhancement. The court was free to believe Duran’s testimony that defendant threatened him, regardless of whether the guard sufficiently understood Spanish to corroborate what defendant said to Duran. U.S. v. Sandoval-Sianuqui, 632 F.3d 438 (8th Cir. 2011).
8th Circuit affirms firearm increase where testimony was corroborated by defendant’s own statements. (770) Defendant was convicted of knowingly transferring four firearms to a prohibited person, and for making false statements in connection with the acquisition of a firearm. The district court applied a § 2K2.1(b) (6) for defendant’s transfer of the firearms to Soumpholphakdy, knowing that Soumpholphakdy was using them to facilitate his drug dealing and that Soumpholphakdy was providing the weapons to his methamphetamine suppliers. Defendant challenged this finding, arguing that the enhancement was based upon Soumpholphakdy’s unreliable testimony. The Eighth Circuit affirmed the district court’s application of § 2K2.1(b)(6). The government sufficiently corroborated Soumpholphakdy’s testimony with defendant’s own statements. U.S. v. Boslau, 632 F.3d 422 (8th Cir. 2011).
8th Circuit rejects finding that escape was crime of violence based on PSR’s summary of police report. (770) Defendant pled guilty to being a felon in possession of a firearm. The PSR concluded that defendant’s prior conviction for felony escape qualified as a crime of violence, and recommended an enhanced offense level of 24 under § 2K2.1(a)(2). The PSR contained a summary of the police report for the escape offense, stating that defendant escaped from custody while being transported from court to the county detention center. The Eighth Circuit held that the district court committed procedural error by relying on the PSR, which merely summarized a police report, to determine that defendant’s prior Oklahoma escape offense was a crime of violence. Where a PSR expressly relies on police reports that would be inadmissible at sentencing under the modified categorical approach, the PSR’s factual assertions, even if a defendant does not object to them, are not an adequate basis for affirming the defendant’s sentence. U.S. v. Williams, 627 F.3d 324 (8th Cir. 2010). The government conceded that remand was appropriate. U.S. v. Thomas, 630 F.3d 1055 (8th Cir. 2011).
8th Circuit rejects credibility challenges to witnesses who testified that defendant possessed gun. (770) The district court found that defendant possessed a firearm in connection with a drug conspiracy, and applied a § 2D1.1(b)(1) increase. The finding was based on the testimony of two witnesses who claimed that they sold crack to defendant multiple times, and that defendant was in possession of a gun at least several of those times. The Eighth Circuit rejected defendant’s claim that the witnesses were not credible. Although the witnesses signed cooperation agreements, the government did not promise the witnesses that they would received sentence reduction in exchange for testifying, and even if it had, this would not have necessarily made the testimony unreliable. Although one witness gave inconsistent statements regarding what type of gun defendant possessed, he consistently and unequivocally stated that defendant was in possession of a gun. Finally, although the witnesses probably testified inaccurately regarding some of the dates that they sold crack to defendant (since he was incarcerated part of that time), they also testified that they sold crack to defendant on dates when he was not incarcerated. U.S. v. Jones, 628 F.3d 1044 (8th Cir. 2011).
8th Circuit holds that sentence was not impermissibly tainted by court’s personal sense of religion. (770) Defendant was convicted of ten counts of transporting five minor females across state lines for purposes of illegal sexual activity. After imposing a sentence of life imprisonment, the court told the defendant that “one day you will face a higher and greater judge than me. May he have mercy on your soul.” The Eighth Circuit rejected defendant’s claim that his sentence was impermissibly tainted by the judge’s personal sense of religion. Reviewing the entire sentencing transcript and placing the challenged comments in context, it was clear that the judge based its sentence on its analysis of appropriate factors. While the judge’s comments were religious in nature, they did not appear to have been an inappropriate driving force or improper consideration during the court’s sentencing. Indeed, religion was a pervasive theme underlying the trial (defendant abused his power as the girls’ pastor and frightened them into believing that they risked a loss of their salvation if they didn’t surrender to him). U.S. v. Hoffman, 626 F.3d 993 (8th Cir. 2010).
8th Circuit holds that defendant failed to show special need for access to accomplice’s PSR. (770) Defendant argued that the district court abused its discretion by denying his motion for access to the PSR and sentencing transcript of Parks, his accomplice. He claimed he needed those materials to show disparity under § 3553(a) (6). The Eighth Circuit upheld the district court’s finding that the disclosure was unnecessary. Although defendant contended that he needed Park’s PSR to determine whether he and Parks had a similar record and were guilty of similar conduct, much of the information defendant sought was contained in publicly available documents. The government’s sentencing memo, Park’s sentencing memo, the court minute entry, and Park’s judgment discussed much of Park’s offense, conduct criminal history and Guidelines calculation. The fact that a defendant is one member of the criminal conspiracy does not automatically create a “special need” to release a PSR in order to allow disparity arguments under 18 U.S.C. § 3553(a) (6). U.S. v. Williams, 624 F.3d 889 (8th Cir. 2010).
8th Circuit says docket sheet that was not admitted at sentencing cannot show prior conviction. (770) At defendant’s sentencing hearing, the government argued that defendant had a prior conviction for theft that should be included in her criminal history calculation. To prove the conviction, the government offered a state court docket sheet. Defendant objected that the arrest had been resolved without a conviction. Relying on the docket sheet, the district court found that defendant had a prior conviction for theft. The docket sheet was not introduced as evidence and did not become part of the district court record. The Eighth Circuit held that the government had failed to establish that defendant had a prior conviction for theft. U.S. v. Cochrane, 608 F.3d 382 (8th Cir. 2010).
8th Circuit upholds reliance on hearsay to find defendant intended to use gun. (770) When deputies knocked on defendant’s door, he did not answer the door. Hours later, deputies saw his ex-girlfriend leave the residence. Defendant later surrendered, and deputies found a loaded gun and ammunition hidden in an air duct. An ATF agent interviewed both the girlfriend and the deputy. The ATF agent testified that the girlfriend told him that when deputies arrived, defendant turned off the lights, loaded a firearm, and stated he would not go back to prison, and there would be a shootout of some sort. The ATF agent reported that the deputy told him that defendant said something similar to him. Defendant was convicted of being a felon in possession of a firearm. The Eighth Circuit held that the district court did not abuse its discretion in finding that the hearsay statements were sufficiently reliable to support an increase for possessing the firearm in connection with another felony. The hearsay statements were corroborated by the fact that deputies observed the girlfriend leaving defendant’s house in the middle of the night, by the presence of the gun in defendant’s house, by the deputy finding the furniture arrayed in a defensive formation, and by defendant’s separate confession to the deputy that he intended to shoot anyone trying to arrest him. U.S. v. Woods, 596 F.3d 445 (8th Cir. 2010).
8th Circuit reverses resentencing where court relied on sentencing memo not given to defendant. (770) Defendant was serving a sentence for crack offenses, and moved pro se under 18 U.S.C. § 3582(c)(2) for a sentencing reduction based on Amendment 706. Unbeknownst to defendant, the district court received a memo from the probation office summarizing his initial sentence, the amended guideline range, and his “institutional adjustment” while incarcerated. The memo was transmitted to the federal public defender’s office, which represented defendant in his underlying case, but that office never appeared on behalf of defendant in the § 3582(c) proceeding. The district court relied on derogatory information about defendant’s behavior in prison as a basis to impose a sentence at the top of his amended guideline range, noting that defendant’s institutional adjustment was “mixed at best.” The Eighth Circuit found that the court erred in relying on a memo that was never provided to defendant. Defendant was not aware of the probation office memo until after he filed his opening appellate brief, at which time the memo was mentioned in the government’s brief, discussed at oral argument, and revealed to have been relied on in the district court’s order. U.S. v. Foster, 575 F.3d 861 (8th Cir. 2009).
8th Circuit remands to different judge where judge improperly relied on his personal knowledge of defendant’s history. (770) At sentencing, the parties disputed the significance of a 1987 armed confrontation between defendant and local police. The judge, however, stated that he had been a city prosecutor at the time of the incident, and that his recollection was that the case was an attempt at suicide that went wrong. Further, the judge noted that one of the officers involved in the incident “suffered until the day he died” and “was never the same” after the incident. The Eighth Circuit held that the district court plainly erred in sentencing defendant based on information at sentencing that was not presented in advance to the defendant. Defendant established a reasonable probability that but for the error he would have received a more lenient sentence. Both before and during the hearing, defendant requested a below-guideline sentence. The district court cited the effect—undisclosed to defendant—of the incident on police officers, and then sentenced him to 120 months, the statutory maximum. Without advance notice, defendant could not contest the judge’s description of the police officer’s emotional state. Defendant showed a reasonable probability, but for the Rule 32 error, the court would have imposed a more favorable sentence. U.S. v. Lovelace, 565 F.3d 1080 (8th Cir. 2009).
8th Circuit defers to district court’s finding that witnesses were credible. (770) Based on testimony by Baker and Townsend, the district court found that defendant was responsible for over 1.5 kilograms of cocaine base. Defendant contended that Baker was unreliable because he wrongly testified that he had no prior criminal convictions and that defendant claimed to have sold a quantity of crack that would have made him extremely wealthy, which he was not at the time of his arrest. Defendant argued that Townsend was regularly using marijuana when he testified and that Townsend claimed to have received drugs from defendant during the time that defendant was incarcerated. The Eighth Circuit held that the district court did not err in basing its drug quantity finding on the testimony of Baker and Townsend. The district court found that there was “some credibility in the testimony of Baker and Townsend” with regard to drug quantity. The finder of fact may accept the parts of a witness’s testimony that it finds credible while rejecting any portion it finds implausible or unreliable. Findings about the credibility of witnesses are virtually unreviewable on appeal. U.S. v. Boyce, 564 F.3d 911 (8th Cir. 2009).
8th Circuit approves increase based on officer’s testimony that 600 images were child pornography. (770) Section 2G2.2(b)(7)(D) provides for a five-level enhancement if a child pornography offense involved 600 or more images. At sentencing, a government agent testified that he had examined about 600 images found on defendant’s hard drives and that in his “opinion, the majority of those [images] portrayed child pornography.” The Eighth Circuit found this was sufficient evidence to support the enhancement. U.S. v. Cordy, 560 F.3d 808 (8th Cir. 2009).
8th Circuit denies motion for access to records of previously sentenced co-defendants. (770) Defendant argued that the district court erred in denying his motion for access to the PSRs and sentencing transcripts of previously sentenced co-defendants, which he contended he needed in order to compare sentences under 18 U.S.C. §3553(a)(6). The district court had found that defendant had not made a showing that disclosure of the PSRs was “required to meet the ends of justice,” and that publicly available documents would give defendant access to the information he needed. The Eighth Circuit found no abuse of discretion. The justness of the district court’s reasoning was demonstrated by the materials in the clerk’s record and in defendant’s motion to supplement the record, which contained copies of the plea agreements, factual basis statements, and judgments for the many co-conspirators who pleaded guilty. These publicly available records showed offense characteristics and the sentences imposed for the co-conspirators to whom defendant wished to compare his sentence. Defendant did not show that the publicly available sources of information were inadequate for his purposes. U.S. v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008).
8th Circuit affirms reliance on addict’s testimony about drugs purchased from defendant. (770) The district court held defendant accountable for 1,114.9 grams of cocaine base by combining 20.9 grams of cocaine base involved in the offense, and extrapolating 1,094 grams from the trial testimony of Adams. Adams testified that, beginning in the spring of 2005, she purchased crack at least twice a day from defendant, and that each of her two daily purchases was for one gram, at $40 per gram. Defendant argued that Adams’s testimony was incredible as a matter of law because she lacked the money to purchase 1,094 grams of crack. Adams had been a drug addict for 15 years, was bipolar, and had three forgery convictions. The district court found Adams’s testimony credible. While it was “unreasonable” to believe that Adams purchased two grams of crack from defendant every single day, she did clearly purchase in excess of 500 grams, which was all that was needed to support defendant’s sentence. The Eighth Circuit held that the district court did not clearly err by finding relevant conduct of at least 500 grams of cocaine base. U.S. v. Hart, 544 F.3d 911 (8th Cir. 2008).
8th Circuit holds that court properly relied on PSR to determine that conviction involved tampering by operation. (770) The district court sentenced defendant as an armed career criminal based in part on its finding that defendant’s prior Missouri conviction for motor vehicle tampering was a violent felony. See 18 U.S.C. § 924(e). A violation of the Missouri statute is a violent felony under the “otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii) if the defendant in fact operated the motor vehicle without the owner’s consent. The Eighth Circuit held that the district court properly relied on the PSR to conclude that the tampering conviction involved tampering by operation, and thus was a violent felony. Paragraph 33 of defendant’s PSR recited that defendant was arrested while “driving” a stolen vehicle and that he later admitted to “driving the stolen vehicles and knowing the vehicles were stolen.” Defendant did not object to paragraph 33. If a defendant fails to object to fact statements in the PSR establishing that a prior offense was a violent felony conviction, then the government need not introduce at sentencing the documentary evidence otherwise required. U.S. v. Reliford, 471 F.3d 913 (8th Cir. 2006).
8th Circuit holds that court’s reliance on its own understanding of accounting principles was not plain error. (770) Defendant corporation, which provided ambulance transport services, was convicted of filing false Medicare and Medicaid claims. Defendant challenged the court’s imposition of a $500,000 fine, complaining that the district court relied on its own understanding of certain accounting principles and used a questionable method of determining the company’s ability to pay and that the company did not have the ability to pay the fine. The Eighth Circuit held that the district court did not commit plain error by relying on its own understanding of accounting principles. Defendant did not expressly state what it believed was wrong about the court’s method of calculation, nor pointed to anything unusual about it. It also cited no case that supported its argument that the court should be reversed because its method of calculating the amount of fine defendant was able to pay. The court explained in detail both the manner in which it calculated defendant’s assets, liabilities and future earning estimates, and the rationale behind those calculations. U.S. v. Patient Transfer Service, 465 F.3d 826 (8th Cir. 2006).
8th Circuit relies on possible double hearsay to impose firearm increase. (770) Defendant pled guilty to being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(5) increase for possessing a firearm in connection with another felony based on evidence that defendant had pointed the gun at his brother in a threatening manner. An ATF investigator testified that local deputies arrived at defendant’s residence in response to a domestic disturbance call, and that defendant’s brother said that he had slammed a bedroom door on defendant’s fingers and that afterward defendant had retrieved a firearm from his bedroom and pointed it at the brother. According to the investigator, defendant’s statements to the deputy corroborated the brother’s account. Although both brothers were intoxicated during the alleged confrontation and while talking to police, and even though some of the ATF investigator’s testimony may have been double hearsay, the district court found that the account of defendant pointing his gun at his brother was sufficiently reliable to support the enhancement. The Eighth Circuit agreed. The brothers’ statements about the part each of them played in the incident were statements against their penal interest, and also may have counted as excited utterances. The fact that the statements qualified for at least one exception to the hearsay rule made them more reliable than they otherwise would have been. Moreover, the brothers independently provided the police with consistent accounts of defendant’s pointing a gun at his brother. Further, nearly all of the testimony was corroborated by the deputy’s report. U.S. v. Shackelford, 462 F.3d 794 (8th Cir. 2006).
8th Circuit rejects variance based on finding that some testimony regarding drug quantity was dubious. (770) The district court calculated defendant’s advisory guideline range for his methamphetamine offenses as 188-235 months. In imposing only a 120-month sentence, the court noted that the drug amount calculated by the PSR came from the testimony of two other felons, “leaving in the Court’s mind considerable doubt as to the accuracy of the drug amounts testified to.” Thus, in varying from the guidelines range, the district court found that some testimony regarding drug quantity was dubious. The Eighth Circuit reversed, ruling that the basis for the variance was “internally inconsistent” because it contradicted the court’s implicit credibility findings made in determining the advisory guideline range. In fashioning a reasonable sentence, a district court must first calculate the advisory guideline range before applying § 3553(a) factors. The court may still determine a witness’s credibility at sentencing, but if credibility is necessary to calculate the advisory guideline range, the court cannot consider credibility as part of its § 3553(a) analysis. U.S. v. Potillo, 458 F.3d 828 (8th Cir. 2006).
8th Circuit rejects downward variance due to internally inconsistent reasoning. (770) At resentencing ordered in light of Booker, the district court found that defendant was responsible for 1.5 kilograms of cocaine base, which resulted in an adjusted offense level of 40, and an advisory guideline range of 360 months’ to life. The court varied downward from the advisory range and sentenced defendant to 240 months’ imprisonment. In explaining its decision to vary, the court discussed the credibility of the witnesses whose testimony established the quantity of crack trafficked by defendant, noting that most of the witnesses were cooperating witnesses who were seeking a benefit from the testimony, and they didn’t keep records and were relying on their memory. The court also noted that it did not believe that the distinction between powder and crack cocaine was “scientifically justified” and resulted in sentences “out of proportion” to the crime. The Eighth Circuit held that the variance was unreasonable because the court’s reasoning was internally inconsistent. In calculating the advisory guideline range, the court was required to make a finding about the credibility of the prosecution’s witnesses who testified about drug quantity. By finding that defendant’s base offense level was 38 based on a quantity of 1.5 kilograms of crack, the court necessarily credited the testimony of those witnesses. To then vary from the range because those witnesses may not have been credible would contradict the court’s own credibility finding made in determining the advisory range. Moreover, the court’s view that the powder/crack distinction was not justified and resulted in out of proportion sentences was not a sufficient basis to affirm the sentence imposed. The distinction does not result in an unreasonable sentence. U.S. v. Brown, 453 F.3d 1024 (8th Cir. 2006).
8th Circuit holds that computer record had sufficient reliability to support finding that defendant committed prior crime. (770) To prove defendant had a prior conviction for a crime of violence, the government submitted a state criminal sentence forms for “Jose R. Urbina-Mejia.” The PSR author also testified that he used the National Crime Information Center database, which verifies records based on fingerprint analysis, and the criminal sentence forms to verify the state conviction. The Eighth Circuit held that the government adequately proved that defendant was the Jose R. Urbina-Mejia who was convicted of the prior crimes. The PSR author testified that during the five years in which he prepared over 200 PSRs, he knew of only one instance where the NCIC report attributed a conviction to the wrong person, and that it was mostly likely due to input error, not a fingerprint mistake. U.S. v. Urbina-Mejia, 450 F.3d 838 (8th Cir. 2006).
8th Circuit approves upward departure despite erroneous consideration of prior arrest record. (770) As grounds for departing upward from criminal history VI , the court noted that defendant “was a career criminal, that his occupation throughout his adult lifetime has been stealing money.” The court pointed to defendant’s numerous convictions for which he received no criminal history points, including convictions for petty theft, injury to property, larceny by check, larceny over $250, and embezzlement. In addition, the court considered several uncontested pending charges against defendant. During sentencing, the court also briefly discussed 12 arrest warrants under defendant’s name. The Eighth Circuit held that that the court improperly considered six of those warrants, but nonetheless affirmed the departure. The records lacked sufficient information concerning the factual nature underlying those six warrants. However, the PSR provided sufficient factual details underlying defendant’s remaining arrest warrants to allow the district court to consider them. Moreover, defendant’s previous convictions, pending charges, and other similar, adult criminal conduct provided adequate grounds to warrant the court’s decision to depart upward. U.S. v. Hacker, 450 F.3d 808 (8th Cir. 2006).
8th Circuit holds that finding that defendant had two prior controlled substances convictions did not violate Sixth Amendment. (770) The district court sentenced defendant with an enhanced offense level under U.S.S.G. § 2K2.1 (a)(2) because it found that defendant had committed his current firearms offenses after two prior felony convictions for controlled substance offenses. The Eighth Circuit rejected defendant’s claim that the district court violated his Sixth Amendment rights by finding both the fact and nature of his prior convictions. The Booker exception for prior convictions applies both to the fact of a prior conviction and to the nature of that conviction. See U.S. v. Griffin, 418 F.3d 881 (8th Cir. 2005). The Supreme Court has not implicitly overruled Almendarez-Torres v. U.S., 523 U.S. 224 (1998) (approving use of prior convictions to increase a defendant’s sentence). Finally, although the district court incorrectly relied on the PSR, see Shepard v. U.S., 544 U.S. 13 (2005), the court’s ultimate finding was not clearly erroneous. During the hearing on his motion to suppress, defendant admitted under oath two prior felony convictions for drug trafficking offenses, one in a Texas federal court and one in a Florida federal court. U.S. v. Perry, 437 F.3d 782 (8th Cir. 2006).
8th Circuit says defendant admitted amount of loss when he did not object to PSR. (770) Defendant challenged the district court’s sentencing enhancements under Blakely v. Washington, 542 U.S. 296 (2004). The Eighth Circuit found that the objection to the loss enhancement was without merit. A fact in a PSR not specifically objected to is a fact admitted by the defendant for purposes of Booker. U.S. v. McCully, 407 F.3d 931 (8th Cir. 2005). Defendant’s PSR indicated that he fraudulently obtained $293,112.62 through his illicit transactions. Although he objected to having received about $77,000 of that amount, the uncontested total amount of fraud still exceeded $200,000. Thus, for Booker purposes, defendant admitted to the amount of loss triggering the 12-level enhancement. U.S. v. Crawford, 414 F.3d 980 (8th Cir. 2005).
8th Circuit holds that court erred in relying on contested portions of PSR. (770) Defendant objected to paragraphs 10 through 15 of the PSR, which set forth the offense conduct. In denying defendant a requested minor-role reduction, the court noted that there was not an adequate basis in the plea colloquy to establish that defendant was a minor participant “in the offense conduct under § 3B1.2. And I include not only the charged conduct but the relevant conduct set forth in the Presentence Report.” Because the district court referenced the contested portion of the PSR when it denied defendant’s request for a minor-role reduction, the Eighth Circuit remanded for resentencing. The panel directed the court to not rely on disputed portions of the PSR for factual findings. U.S. v. Morehead, 375 F.3d 677 (8th Cir. 2004).
8th Circuit rejects credibility challenge to detective’s drug quantity testimony. (770) At defendant’s drug trial, a police detective testified about a statement defendant made to him about drug quantity during an interview. Defendant argued that the court did not consider the possibility that the detective’s testimony was incorrect, and that the court found the testimony credible before hearing all of defendant’s sentencing evidence. The Eighth Circuit upheld the court’s drug quantity calculation. Credibility issues are virtually unassailable on appeal. Moreover, the judge evaluated the detective’s testimony after hearing all of the evidence. Although the judge stated that she accepted the detective’s testimony before defendant offered any sentencing evidence, the judge then said “if you have anything else you want me to consider, I’m happy to consider that.” The record also showed that when defendant announced he had a witness, the judge allowed the witness, listened to the witness, and then disagreed with the witness. There was no error. U.S. v. Harris, 352 F.3d 362 (8th Cir. 2003).
8th Circuit holds that uncle who embezzled money from niece and nephew’s trust abused position of trust. (770) The district court applied an abuse of trust increase because defendant embezzled funds from his niece’s and nephew’s trust. Defendant argued (1) the court erred in relying on the hearsay testimony of an IRS agent, rather than the testimony by the victims’ themselves, and (2) the enhancement did not apply in a family setting such as this. The Eighth Circuit disagreed. Reliable hearsay evidence may be considered at sentencing. The IRS agent testified, and defendant had ample opportunity to cross-examine him or to refute the hearsay statements with defense evidence. In addition, there was ample other evidence supporting the district court’s finding that defendant embezzled $26,813 from the trust. This was not a “nonbusiness, purely familial” relationship. Defendant was the trustee of social security benefits received by his minor niece and nephew. He had substantial discretion to invest or spent those funds, much like a professional trustee or a financial adviser with discretion to invest. This discretion enabled him to embezzle the funds and made the detection of his offense far more difficult. A relative with this degree of control over finances may occupy a position of private trust. U.S. v. Shevi, 345 F.3d 675 (8th Cir. 2003).
8th Circuit holds that objections were not sufficiently specific to preclude reliance on PSR. (770) The evidence presented at sentencing alone was not sufficient to support a managerial role increase under § 3B1.1(c). However, the PSR cited evidence that defendant exercised decision-making authority over another conspirator, directed the amount of drugs sold, and had drug proceeds turned over to him. In general, a PSR is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact. However, defendant did not object specifically to the PSR’s findings that he was a manager, nor did he object to those portions of the PSR that outlined the evidence that formed the basis for his sentence enhancement. He did, however, object to the conclusion in the PSR that he was ineligible for safety valve relief. Defendant asserted that this general objection served as an objection to all of the underlying criteria for safety valve relief, including the issue of managerial role. However, defendant’s managerial role was not the only basis for denying safety valve relief, and the Eighth Circuit concluded that defendant’s objection was not sufficiently specific to preclude the court’s reliance on the PSR. Defendant’s attorney was given numerous opportunities to contest the managerial role criterion, but did not do so. The unobjected-to portions of the PSR contained sufficient facts from which the district court could conclude that defendant met the criterion for a managerial role adjustment. U.S. v. Quintana, 340 F.3d 700 (8th Cir. 2003).
8th Circuit upholds reliance on drug quantity testimony that court found credible. (770) Defendant claimed the district court erred in attributing certain quantities of crack cocaine to him based on Jirouch’s testimony about prior transactions not included in the indictment. He argued that Jirouch’s testimony lacked sufficient indicia of reliability for the court to consider it for sentencing purposes. The Eighth Circuit found no clear error. The district court presided at trial, found Jirouch credible, and based its quantity calculation on the evidence. This was not clearly erroneous. U.S. v. Exson, 328 F.3d 456 (8th Cir. 2003).
8th Circuit defers to lower court’s findings on credibility of government witnesses. (770) Defendant challenged the district court’s drug quantity finding, contending that the testimony of certain witnesses used against him on this point was incredible, because the witnesses were testifying in order to gain advantage for themselves, in the form of reduction of their own sentences. The Eighth Circuit found no reversible error. While testimony of this kind is suspect and should be weighed with care, the district court, which heard the witnesses, believed them after being fully advised of the extent of the consideration being gained by them for their testimony. This sort of finding as to the credibility of live witnesses is virtually never clearly erroneous. U.S. v. Eis, 322 F.3d 1023 (8th Cir. 2003).
8th Circuit upholds reliance on co-conspirator testimony even though not supported by investigative report. (770) A state trooper stopped a car driven by Santos and Arreguin. After the police discovered methamphetamine in the car, Santos agreed to make a controlled delivery of the meth to defendant. The district court imposed an obstruction of justice enhancement based on Santos’s trial testimony that defendant had tried to bribe him into taking responsibility for the methamphetamine. Defendant argued that Santos’s testimony was incredible, noting that an investigative report stated that Santos had accused Arreguin, not defendant, of attempting to bribe him into taking responsibility for the drugs. However, at trial Santos testified that the report was incorrect. While Santos’s testimony was not supported by the investigative report, he was vigorously cross-examined about the matter. Thus, the Eighth Circuit refused to find that the district court erred in relying on Santos’s trial testimony. U.S. v. Santos-Garcia, 313 F.3d 1073 (5th Cir. 2002).
8th Circuit upholds use of FBI rap sheet, photographs and fingerprint evidence to show that defendant had prior convictions. (770) Defendant argued that the district court erred in assessing four criminal history points for two prior state drug convictions because the government failed to prove that defendant committed those offenses. At sentencing, the government offered into evidence certified copies of two convictions of “Ernesto Resendiz-Villa, a/k/a Pedro Ayala-Alvarado,” pictures of this defendant, and an FBI “rap sheet” purporting to recite defendant’s criminal history and listing Ernesto Resendiz-Villa and Pedro Ayala-Alvarado as two of his many aliases. An INS agent testified that the FBI adds aliases to a rap sheet on the basis of fingerprint comparisons. The government also offered into evidence two sets of fingerprints of defendant, one taken at the time of the state conviction and one taken in connection with this offense, and an INS forensic lab report stating that the two sets were made by the same person. The Eighth Circuit held that the district court did not commit plain error by admitting this evidence nor clear error in finding that defendant had committed the prior offense. The alias information, which defendant contended was unreliable, was corroborated by the photographs, which the district court found showed the same person, and to a lesser extent by the fingerprint evidence. U.S. v. Rodriguez-Arreola, 313 F.3d 1064 (8th Cir. 2002).
8th Circuit upholds use of acquitted conduct at sentencing. (770) Defendant was charged with and convicted of conspiracy to distribute methamphetamine, and charged with possession of methamphetamine with intent to distribute, but was convicted of the lesser included offense of possession of methamphetamine. Defendant argued that the use of the acquitted conduct for sentencing was unreasonable and irresponsible. The district court found all 277.77 grams of meth were attributed to defendant, as relevant conduct to the conspiracy count. The Eighth Circuit noted that even if the 128 grams of meth found in defendant’s residence were attributable to the acquitted conduct, the district court still would not have erred in using that evidence to sentence defendant. This circuit allows acquitted conduct to be used for sentencing purposes if proved by a preponderance of the evidence, especially when a conspiracy charge is included. U.S. v. Tirado, 313 F.3d 437 (8th Cir. 2002).
8th Circuit agrees that loss from counterfeit check cashing scheme exceeded $70,000. (770) Defendant was involved in a counterfeit check cashing scheme. The district court found that he was responsible for a loss of at least $70,000 but less than $120,000. Defendant argued that the evidence presented at sentencing consisted mainly of hearsay and lacked the indicia of reliability needed to support his sentence. The Eighth Circuit disagreed. Defendant admitted that he was responsible for a loss of at least $17,146.29 drawn on the accounts of Waste Management, Follett Educational Services, and United Rentals. Testimony at sentencing showed that defendant also supplied checks to two other individuals totaling a loss of $25,407.10. All checks involved in the scheme were drawn on one of five checking accounts, and defendant was the source for at least one counterfeit check drawn on each of these five accounts. Additionally, the logo for one of the businesses was found on defendant’s home computer. The loss attributable to counterfeit checks drawn on this account alone totaled $24,713.72. Defendant’s cell phone records also indicated that he had telephone contact with at least four other individuals involved in the scheme. The evidence presented at sentencing was sufficiently reliable to uphold defendant’s sentence. U.S. v. Tucker, 286 F.3d 505 (8th Cir. 2002).
8th Circuit rejects upward departure based on facts not in record. (770) Defendant pled guilty to one count of carjacking. The district court stated that it had departed upward because multiple victims were involved in the crime. However, the court’s Statement of Reasons contained factual statements that were not based on any evidence in the sentencing record. For example, with regard to one of the victims, the court stated that “defendant took the gun out of his waistband and brandished it.” This fact could not be found in the plea agreement, in any admission of fact made during the plea hearing or charge, or in any evidence offered by or alluded to by the government at sentencing. Although the PSR said that the victim “observed the firearm,” it did not state that defendant “brandished” the gun at him. The disputed facts could be found only in an affidavit given by an FBI agent. This documents was never introduced into the record at sentencing. The court did not have the opportunity to hear testimony regarding the facts contained in the affidavit, and defendant did not have the opportunity to refute this testimony. Because these facts were not included in the record, the Eighth Circuit vacated defendant’s sentence. U.S. v. Bougie, 279 F.3d 648 (8th Cir. 2002).
8th Circuit holds defendant accountable for additional drugs based on cooperating witness testimony. (770) Defendant claimed that the district court erred by relying on the testimony of a cooperating witness to hold him responsible for a car load of drugs brought to Minnesota on August 6, 2000. A cooperating witness identified defendant and Gomez-Mercado as his sources for illegal drugs. He testified that on August 7, 2000 Gomez-Mercado told him that the day before he helped defendant retrieve a car driven by defendant’s family members that had broken down. The car was loaded with 30 pounds of methamphetamine, two kilograms of cocaine, and 40 pounds of marijuana. The cooperating witness’s testimony was corroborated by a recorded conversation as well as law enforcement having spotted the car in question both when it was broken down and later at defendant’s residence. The Eighth Circuit found that the district court was entitled to rely on the testimony of the cooperating witness and did not err by so doing in determining the drug quantity attributable to defendant. U.S. v. Sarabia-Martinez, 276 F.3d 447 (8th Cir. 2002).
8th Circuit holds that defendant’s failure of polygraph test did not warrant obstruction increase. (770) At sentencing, the court stated that it was considering defendant’s request for a role in the offense reduction, but stated it would not take her word and suggested she should take a polygraph exam. Defendant then took a polygraph exam conducted by an examiner of her choice, and failed on the issue of her knowledge of drugs in the car. The district court applied an obstruction of justice increase, reasoning that defendant indirectly had attempted to give false testimony at sentencing in hopes of a lighter sentence. The Eighth Circuit held that defendant’s failure to pass the polygraph test did not warrant the obstruction increase. The government presented no evidence that defendant had lied in hopes of receiving a reduction in her role in the offense. The government failed to offer the examiner’s report, nor did the examiner testify as to his qualifications or the questions asked. In fact, although the court ordered the polygraph so that defendant could convince it that a role reduction was warranted, her alleged “failure” went to the issue of her knowledge of the drugs, which related to her guilt, not her role in the offense. In fact, the district court granted the role reduction based on its finding that the trial evidence showed she was a minor participant. “[T]here is simply no consensus that polygraph evidence is reliable.” Indeed, because of reliability concerns, the government initially opposed the court’s consideration of the polygraph evidence. Ortega v. U.S., 270 F.3d 540 (8th Cir. 2001).
8th Circuit holds that court properly relied on testimony despite partial jury acquittal. (770) Defendant noted that the court’s drug quantity and firearms findings were primarily based on the testimony of Windles and Miller, yet since the jury must have disbelieved their testimony regarding a § 924(c) weapons charge, their testimony regarding drug quantity and the weapon was unreliable. The Eighth Circuit found this argument without merit. Juries can return inconsistent verdicts. Moreover, even acquitted conduct can be considered when determining a sentence under the guidelines, as long as that conduct has been proved by a preponderance of the evidence. Here, the court’s findings were cautious and well-supported. The court found that the witnesses had testified to “conservative estimates of drug quantity” and further noted that even if their estimates were cut in half, the quantity of drugs would still support an offense level of 36. U.S. v. Luna, 265 F.3d 649 (8th Cir. 2001).
8th Circuit upholds reliance on witness testimony that conflicted with defendant’s testimony. (770) Defendant argued that the court’s drug quantity finding was erroneous because, although it was supported by the testimony of witnesses at the sentencing hearing, it substantially exceeded the quantity that defendant admitted to selling. However, evaluations of witness credibility are within the province of the district court. Since there was nothing in the sentencing hearing transcript to suggest that the court’s decision to credit the witness testimony over defendant’s testimony was improper, the Eighth Circuit affirmed. U.S. v. Torres, 258 F.3d 791 (8th Cir. 2001).
8th Circuit holds that stipulation waived drug quantity challenge. (770) Members of a Los Angeles street gang transported cocaine powder from California to the Twin Cities, where they cooked the powder into crack and distributed it. Defendant was one of the conspiracy leaders responsible for drug activities in California. He argued that the district court erred in finding that all of the drugs attributed to the conspiracy, including 1054 grams of crack purchased by an undercover officer in the Twin Cities, and 2477 grams of cocaine powder seized at the Twin Cities airport, were reasonably foreseeable to him as a California conspirator. The Eighth Circuit ruled that this contention was waived because defendant’s plea agreement provided that his base offense level was 36, and this was the base offense level actually used in determining his sentence. Moreover, the contention was without merit. In sentencing defendant, the district court stated that it had “heard the trial of the other defendants in this case” and found that the crack cocaine sales in Minnesota were reasonably foreseeable relevant conduct. The court was entitled to consider relevant conduct introduced at the trial of co-defendant Louis. The testimony of co-conspirator Atkins at that trial amply demonstrated that the crack cocaine sales, as well as the cocaine powder seized at the airport, were reasonably foreseeable to defendant as a leader of the conspiracy. U.S. v. Scott, 243 F.3d 1103 (8th Cir. 2001).
8th Circuit upholds estimate based on district court’s assessment of co-conspirator’s statements. (770) While in police custody, Wendt stated that he purchased 608.4 grams of meth from Sanchez-Ramirez and defendant. In comparison, while in police custody Mancini stated she and Wendt received between 1/8 and 1/4 ounce of meth per week from Sanchez-Ramirez during the period of January to March 1998. Mancini was only able to link defendant to the transactions because he acted as Sanchez-Ramirez’s driver. However, Mancini later stated at trial that defendant’s involvement in the transactions was as a negotiator rather than merely a driver. Given the inconsistencies between their statements made upon arrest and those made at trial, the district court was suspicious of both Wendt’s and Mancini’s testimony. However, the government presented corroborating evidence that supported the testimony. Specifically, Agent Hurley was able to make repeated meth purchases from Wendt and Mancini reflective of the amounts of meth the two attributed to defendant, and the agent’s testimony also corroborated defendant’s overall involvement in the scheme. The district court found that the government met its burden regarding drug quantity. The district court is best able to assess the value of testimony and assess the credibility of witnesses. Accordingly, the Eighth Circuit held that the district court did not err in estimating drug quantity based on its assessment of the evidence. U.S. v. Causor-Serrato, 234 F.3d 384 (8th Cir. 2000), abrogated on other grounds, U.S. v. Lopez, 443 F.3d 1026 98th Cir. 2006).
8th Circuit says court can find defendant was truthful to police despite lies at other times. (770) Defendant made incriminating statements to the police during the execution of a search warrant at his apartment. Based on these admissions, the district court included 27.5 ounces of cocaine and one ounce of crack in its sentencing calculation. Defendant argued that these statements lacked sufficient indicia of reliability to serve as a basis for a drug quantity finding. He pointed out that the district court concluded that he had lied about several material issues in the case. However, the district court determined only that defendant lied when he claimed that his prior statements were false. This credibility determination was virtually unassailable on appeal. Thus, the Eighth Circuit ruled that the district court was free to believe that defendant’s statements to the officers were truthful while finding that he lied at other points in the case. U.S. v. Knight, 230 F.3d 1086 (8th Cir. 2000).
8th Circuit applies Apprendi to drug cases but finds any error was harmless. (770) The Eighth Circuit held that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), “if the government wishes to seek penalties in excess of those applicable by virtue of the elements of the offense alone, then the government must charge the facts giving rise to the increased sentence in the indictment, and must prove those facts to the jury beyond a reasonable doubt.” Applying Apprendi to 21 U.S.C. § 841, the court held that its prior decisions that drug quantity was a mere “sentencing factor” must be abandoned. Nevertheless, the court upheld the defendant’s mandatory minimum 20-year sentence under 21 U.S.C. § 841(b)(1)(A), because that sentence was within the 20-year maximum authorized by § 841(b)(1)(C) for defendants with a prior conviction, without reference to drug quantity. Thus, the increased maximum sentence in subsection (A) “played no role” in defendant’s sentence. The court noted that Apprendi did not overrule the holding of McMillan v. Pennsylvania, 477 U.S. 79 (1986), that mandatory minimum sentences may be imposed based on non-jury factual findings, as long as the sentence is within the statutory maximum for the crime of which defendant was convicted by the jury. U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000).
8th Circuit rejects argument that defendant must “know” the drug type and quantity. (770) In a footnote, the Eighth Circuit said that the sentencing provisions in 21 U.S.C. § 841(b) “only require the government to prove that the offense ‘involved’ a particular type and quantity of controlled substance, not that the defendant knew he was distributing that particular type and quantity.” Thus, “to the extent Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)] applies, the jury need only be instructed to find, as it did in this case, that a particular type and quantity of controlled substance was involved in the offense.” U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit finds any Apprendi error harmless due to special verdict on drug quantity. (770) At the government’s request, the district court submitted a “Special Finding” dealing with drug type and quantity. Thus, the jury unanimously found beyond a reasonable doubt that more than 500 grams of methamphetamine were involved in the offense. “Because the indictment had alleged this drug type and quantity, and because the district court made a drug quantity finding at sentencing that was consistent with the jury’s special finding, [defendant] received all the Fifth and Sixth Amendment protections that Jones and Apprendi require.” In these circumstances, “any failure to treat drug type and quantity as an element of the crime was harmless error.” U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit relies on loss “guesstimate” defendant provided to Secret Service. (770) While incarcerated in state prison, defendant admitted to a Secret Service agent that she orchestrated an extensive identity takeover scheme. She “guesstimated” that she either caused or intended to cause her victims to lose more than $70,000. However, in defendant’s plea agreement, the government and defendant agreed that the total amount of loss fell between $40,000 and $70,000. Nonetheless, the PSR concluded that the total loss was between $70,000 and $120,000. The district court used the higher loss figure, relying upon the “guesstimate” conveyed by defendant to the Secret Service agent. The Eighth Circuit held that the district court properly found defendant’s detailed statement to the Secret Service agent more credible than her statement of loss provided during the sentencing hearing. The court’s decision was, in essence, based on witness credibility. Questions of witness credibility are committed squarely to the domain of the sentencing court and are virtually unreviewable on appeal. U.S. v. Sample, 213 F.3d 1029 (8th Cir. 2000).
8th Circuit upholds use of evidence from co-defendant’s trial. (770) The district court relied on evidence in the record from a co-defendant’s trial to enhance defendant’s sentence for possessing a weapon. The Eighth Circuit held that the use of evidence presented at the co-defendant’s trial to enhance defendant’s sentence did not violate due process. The sentencing process does not carry the same evidentiary protections guaranteed during a criminal trial. Relevant, reliable evidence from a co-defendant’s trial presided over by the sentencing judge may be considered even though defendant was not present, represented, or able to confront and cross-examine witnesses. Due process requires only that defendant have notice of the proposed weapon enhancement, which he received in the PSR, and an opportunity to rebut or explain the evidence to be used against him, which he exercised when he objected to the PSR. Defendant received all the process that was due him. Smith v. U.S., 206 F.3d 812 (8th Cir. 2000).
8th Circuit says failure to require disclosure of agent’s rough notes was not prejudicial. (770) At sentencing, the DEA agent who debriefed defendant testified that defendant’s answers during the debriefing contradicted information furnished by co-defendants. The agent said that he made rough notes of these interviews. When defendant’s attorney requested the production of the notes as Jencks Act materials, the district court denied the request, stating that this was not a Jencks case. The court then concluded that the government properly refused to file a § 5K1.1 motion. The Eighth Circuit found that the district court’s statement that Jencks Act materials are not to be considered at sentencing was incorrect. However, there was no need to decide if the rough notes of the agent were required to be divulged because there was no prejudicial error in the district court’s decision to deny the motion for their production. The panel examined the notes in camera, and found that they would not have materially aided defendant’s attack on the testifying agent’s credibility. The district court properly considered the agent’s hearsay testimony. The district court found the agent credible. Such a finding is close to invulnerable on appeal. U.S. v. Due, 205 F.3d 1030 (8th Cir. 2000).
8th Circuit applies enhancement for using minor despite inaudible tape. (770) Two undercover officers at a truck stop arranged to purchase ephedrine tablets from defendant, who was with his eight-year old daughter. When the officers refused to pay the money until defendant brought the drugs from his nearby supplier, defendant suggested that he leave his daughter with the officers in the truck stop restaurant so they could give him the money in advance and be certain he would return with the drugs. The officers refused. However, based on this suggestion, the district court applied a § 3B1.4 enhancement for attempting to use a minor to commit the offense. Defendant argued that he did not make such a suggestion, noting it could not be heard on the government’s audio tape of the conversation. However, both officers testified that portions of the tape were inaudible due to background noise from nearby highway traffic. One officer testified unequivocally that defendant offered to leave his daughter in the restaurant while he took the money to get drugs, and identified the point on the tape when this inaudible statement occurred. The Eighth Circuit ruled that the district court’s finding that defendant offered to leave his daughter with the officers was not clearly erroneous. The tape did not establish whether the alleged suggestion was never made, or was merely inaudible. U.S. v. Warner, 204 F.3d 799 (8th Cir. 2000).
8th Circuit holds sentencing without new testimony from defendant’s witnesses did not violate due process. (770) Before an evidentiary hearing on drug quantity, the district court issued subpoenas to witnesses at defendant’s request. None of the witnesses were able to be located, and none were present at the hearing. All but one had testified at defendant’s trial. The court issued a subpoena for the deposition testimony of the sole witness who had not previously testified and quashed the remaining subpoenas. The Eighth Circuit held that the sentencing without the new testimony from defendant’s witnesses did not violate due process. Defendant did not allege that the witnesses testified falsely at trial. He claimed only that their trial testimony included unsubstantiated estimates of drug quantity. Thus, he implied that the witnesses would have provided different information at sentencing than they did at trial. However, there was no evidence to support this inference. Without information regarding the expected testimony, and given that the witnesses at trial were under oath, there was no evidence that the testimony at sentencing would have resulted in an appreciable difference in the district court’s finding. Thus, the proceedings did not violate due process. U.S. v. Granados, 202 F.3d 1025 (8th Cir. 2000).
8th Circuit relies on hearsay to determine relevant conduct. (770) The PSR said that Barrett made a pretrial statement that from 1990 to November 1992, defendant and another man sold one to two ounces of crack cocaine per week from various Barrett drug houses. At sentencing, a police detective confirmed the PSR’s information, testifying that Barrett had told him about defendant’s drug sales during a pretrial interview. The Eighth Circuit upheld the district court’s reliance on the detective’s hearsay testimony to determine defendant’s relevant conduct. Hearsay evidence is admissible at sentencing if the evidence is sufficiently reliable. Here, the district court could properly find credible the detective’s testimony that Barrett linked defendant to the sale of an ounce of crack a week between 1990 and 1992. Defendant had an opportunity to cross-examine the detective about the statements, and did so. The statements were not inconsistent with Barrett’s trial testimony. Barrett did not testify about specific drug amounts at trial because drug quantity is not an essential element of a conspiracy offense. U.S. v. Jones, 195 F.3d 379 (8th Cir. 1999).
8th Circuit upholds use of victim impact statements at sentencing. (770) Defendant was convicted of crack charges. Over defendant’s relevancy objection, the district court admitted five neighborhood victim impact statements such as: “Peoples [sic] homes have been shot at. I have been shot at three times and my home has been shot at two times.” The Eighth Circuit held that that use of the victim impact statements did not violate due process. First, at sentencing, defendant objected on the grounds of relevance, but made no claim that the information in the statements were false. Further, the statements were not “demonstrably the basis for the challenged sentence.” The court sentenced defendant in the lower half of the guideline range, and said it did not go to the bottom of the range because it had already granted defendant a “break” in the drug quantity determination. The judge said that the information in the victim impact statements merely confirmed what he already knew about the impact of drug dealing on a neighborhood and community. Thus, the statements had no effect on defendant’s sentence. U.S. v. Sandifer, 188 F.3d 992 (8th Cir. 1999).
8th Circuit relies on hearsay where defendant conceded it was consistent with victim’s state court testimony. (770) Defendant stole guns from a gun store. At defendant’s state court robbery trial, the store clerk testified that defendant struck her in the back of the head with a firearm. Defendant then pled guilty to stealing firearms from a federally licensed gun dealer. The district court applied a § 2B3.1(b)(2)(B) enhancement for use of a firearm and a § 2B3.1(b)(3)(A) enhancement for bodily injury, based on an ATF agent’s testimony that the victim reported to the local police that defendant had struck her in the head with a gun, kicked her, and threatened to shoot her. The Eighth Circuit held that the testimony of the victim at the state court trial provided sufficient support for both enhancements. Although defendant challenged the court’s reliance on the ATF agent’s hearsay testimony, defendant conceded that it was consistent with the clerk’s sworn state court testimony. Defendant’s concession provided the “sufficient indicia of reliability” needed to allow the court to rely on the ATF agent’s hearsay testimony. Moreover, the district court did not need to rely on the ATF agent’s testimony at all, but could have relied solely on defendant’s own admission of the content of the clerk’s state court testimony. U.S. v. Hoelzer, 183 F.3d 880 (8th Cir. 1999).
8th Circuit relies on hearsay to hold defendant accountable for drugs involved in dismissed counts. (770) Police intercepted nearly a kilogram of methamphetamine at the airport. To link defendant to these drugs, a Special Agent testified that a co-conspirator named Neri told him that defendant was involved with these drugs. Several interview reports between Neri and other law enforcement officers also stated that Neri had reported that defendant was involved with the drug shipment that was intercepted at the airport. The Eighth Circuit upheld the district court’s reliance on the hearsay testimony linking defendant to the drugs seized at the airport. Hearsay evidence is admissible at sentencing and can form the basis for sentencing determinations. The district court could properly have found the agent’s testimony credible. The testimony was supported in substance by Neri’s statements to other law enforcement officers, as reflected in their reports. Defendant was given ample opportunity to call Neri as a witness and challenge these statements, but declined to do so. U.S. v. Alvarez, 168 F.3d 1084 (8th Cir. 1999).
8th Circuit holds that co-defendant’s “real-life experiences” enabled her to identify crack. (770) Lowe sold defendant crack cocaine in November and December of 1995. Lowe cooked the crack herself for the November transaction, but testified that she purchased the December substance from a known supplier who made crack cocaine with “ammonia and baking soda.” She also testified that the substance, which was in a clear plastic bag, was a “more solid piece of rock… The same substance, creamy, milky white.” Lowe had previous experience selling crack to others. Because of her familiarity, Lowe testified that she had “no doubt” that the rock-like substance she sold to defendant in December was crack cocaine. The Eighth Circuit held that the district court justifiably relied on Lowe’s well-grounded opinion that the substance she sold was crack. Lowe’s real-life experiences enabled her to recognize crack cocaine when she saw it. Additionally, defendant’s failure to complain about the quality of the substance he received was “strong confirmation that [Lowe] was selling genuine crack.” Judge Heaney dissented, believing the witness had insufficient experience to rely on her identification of the December substance as crack. U.S. v. Marsalla, 164 F.3d 1178 (8th Cir. 1999).
8th Circuit affirms reliance on co-conspirator testimony to estimate drug quantity. (770) Defendant was arrested after selling methamphetamine to a government informant. He disputed the district court’s reliance on trial testimony to find him accountable for a total of 78 ounces of meth. The Eighth Circuit ruled that the court’s drug quantity calculation was supported by the testimony of defendant’s co-conspirators. A court is not limited to the actual amount of drugs seized when imposing a sentence, but can consider witness testimony and determine its credibility when calculating the total amount of drugs involved in the conspiracy. Witness credibility is an issue for the sentencing judge that is “virtually unreviewable on appeal.” U.S. v. Benitez-Meraz, 161 F.3d 1163 (8th Cir. 1998).
8th Circuit relies on agent’s testimony to determine relevant conduct began within 10-year window. (770) Defendant was sentenced as a career offender based in part on a sentence imposed in September 1986 for growing marijuana. Defendant challenged the court’s finding that his relevant conduct in the current offense began before September 1996. This finding was crucial to his career offender status, since § 4A1.2(e)(2) limits predicate offenses to those violent felonies and drug offenses for which the defendant had been sentenced within ten years of the commencement of the current offense. The court relied on testimony by a special agent about his May 1997 interview with defendant, which suggested that the relevant conduct began long before December 1996. The Eighth Circuit found no clear error in the court’s acceptance of the officer’s testimony regarding defendant’s admissions. Credibility determinations are squarely within the discretion of the district court. U.S. v. Peck, 161 F.3d 1171 (8th Cir. 1998).
8th Circuit attributes full amount of methamphetamine to defendants at center of ring. (770) Defendants were convicted of conspiracy to distribute methamphetamine. They argued that the sentencing judge failed to specifically rule or estimate the amount of drugs attributable to them. The Eighth Circuit disagreed, finding defendants were properly held accountable for all the meth in the conspiracy. Defendants were at the center of the large meth distribution ring. The sentencing judge could properly attribute the total amount of drugs in the conspiracy to these defendants. The government properly relied on the testimony of co-conspirators and immunized witnesses to establish the scale of the conspiracy because a relatively small amount of drugs was actually seized by law enforcement agents. Under these circumstances, the sentencing judge’s use of witnesses’ testimony to establish drug quantity was proper. Although a more detailed record addressing trial testimony and specific amounts would have been preferable, the court’s attribution of 10-30 kilograms of meth was supported by the evidence. U.S. v. Maggard, 156 F.3d 843 (8th Cir. 1998).
8th Circuit finds obstruction based on co-conspirator’s testimony of defendant’s threats. (770) Defendant complained that unreliable hearsay evidence was used to support an obstruction of justice enhancement. At sentencing, a co-conspirator testified that prior to trial defendant had contacted her twice through two different friends, first to tell her to return anything she received from federal agents unopened, and second to tell her he knew where she lived, that he had family living around the corner if he wanted to do anything to her, that he thought she was trying to send him away for a long time, and he just wanted to talk to her. The Eighth Circuit affirmed an obstruction of justice enhancement based on the co-conspirator’s testimony. Uncorroborated hearsay evidence may properly be considered by the court as long as the defendant is afforded an opportunity to explain or rebut the evidence. U.S. v. Jackson, 155 F.3d 942 (8th Cir. 1998).
8th Circuit relies on addicts’ testimony to estimate drug quantity. (770) Defendant objected to the district court’s reliance on testimony by 3 immunized witnesses who were admitted drug addicts. Defendant’s expert pharmacologist testified at sentencing that users can suffer hallucinations which can distort their estimates of drug quantities. The Eighth Circuit held that the court properly relied on the testimony of these witnesses to establish drug amounts. The sentencing court’s assessment of the credibility of witnesses is nearly unreviewable. There was nothing in the record to indicate that the witnesses had suffered memory loss or hallucinated about the amount of drugs they saw. U.S. v. Dierling, 131 F.3d 722 (8th Cir. 1997).
8th Circuit upholds consideration of suppressed statement after finding it was voluntary. (770) Defendant was arrested for being a felon in possession of a firearm. At the time of his arrest, defendant told police he knew that there was a sawed-off shotgun in the car. The district court suppressed this statement at trial because it concluded it was involuntary. Defendant argued that the district court erred in considering the suppressed statement at sentencing. The Eighth Circuit found it unnecessary to determine whether involuntary statements suppressed on constitutional grounds may be considered at sentencing, because defendant’s statement was voluntary. The court incorrectly ruled on a per se basis that a confession induced by a promise that there will be no prosecution is not voluntary. In fact, the promised nonprosecution is just one of circumstances to be considered in assessing the conduct of police and the characteristics of the accused. U.S. v. Larry, 126 F.3d 1077 (8th Cir. 1997).
8th Circuit uses hearsay concerning threats to support obstruction enhancement. (770) A co-conspirator testified at his own sentencing hearing that defendant had sent the co-conspirator threatening letters regarding the co-conspirator’s possible decision to testify, and that defendant spoke with the co-conspirator and threatened to assault a second co-conspirator because that co-conspirator cooperated with the government. The second co-conspirator asserted in an affidavit that defendant’s threats reached him and he was intimidated. The Eighth Circuit affirmed an obstruction of justice enhancement, holding that the court did not err in crediting the co-conspirators’ hearsay. The district court presided at the first co-conspirator’s sentencing and was in the best position to assess his credibility. The second co-conspirator’s affidavit was consistent with the first co-conspirator’s testimony, which lent it additional indicia of reliability. U.S. v. Drapeau, 121 F.3d 344 (8th Cir. 1997).
8th Circuit holds defendant accountable for more than 20 kilograms of cocaine. (770) Defendant argued that the district court erred in finding him responsible for the distribution of more than 20 kilograms of cocaine. The Eighth Circuit found no error. Authorities seized 20 kilograms shortly after its distribution from defendant to a co-conspirator. In addition, a witness testified that he obtained 46 kilograms of cocaine from defendant on the four trips he made to Los Angeles while he was a member of the conspiracy. The district court considered the witness’s credibility in light of the reduced sentence the witness received for his testimony, and specifically noted that the jury had reason to credit the testimony. U.S. v. Payne, 119 F.3d 637 (8th Cir. 1997).
8th Circuit relies on hearsay from DEA agent about wiretapped conversations and interviews. (770) In finding defendants accountable for the full amount of heroin in the conspiracy, the Eighth Circuit held it was proper for the district court to rely on the hearsay testimony of a DEA agent in which he referred to conversations from wiretaps and interviews with co-defendants. The government did not introduce transcripts of the wiretaps, notes of the DEA agent’s interviews or any other witness corroboration. But it provided defendants with the DEA reports, 200 hours of wiretaps, and wiretap affidavits. The government was not required to turn over the agent’s notes of his impressions from his interviews with co-defendants. U.S. v. Weekly, 118 F.3d 576 (8th Cir. 1997).
8th Circuit upholds 16‑pound determination supported by witness testimony. (770) Defendant argued that the district court erred in attributing 16‑pounds of methamphetamine to him, alleging that the witnesses on which the district court relied were unreliable and untrustworthy. The Eighth Circuit found no clear error. The district court found the testimony of the four witnesses to be accurate, reliable and supported by the evidence at trial. A recorded telephone call between defendant and one of the witnesses corroborated the witnesses’ testimony. The district court found that defendant was the leader of the conspiracy and thus accountable for the methamphetamine to which the witnesses testified. U.S. v. Garin, 103 F.3d 687 (8th Cir. 1996).
8th Circuit says testimony from former co-conspirators was not unreliable. (770) The district court attributed 6 pounds of methamphetamine to defendant based on the testimony of defendant’s former co-conspirators. Defendant argued that the testimony was unreliable because these individuals were looking to trade testimony for leniency. The Eighth Circuit held that the mere fact that the testimony came from defendant’s former partners did not make it unreliable. U.S. v. Kime, 99 F.3d 870 (8th Cir. 1996).
8th Circuit bases role increase on codefendants’ post‑arrest statements. (770) The Eighth Circuit upheld a supervisory role enhancement based on the co‑defendants’ post-arrest statements. The first co‑defendant stated that he was on a “dope run” for defendant and another man. The second co‑defendant told police that he was transporting drugs for two men, but could not name the men because they would kill him. The identities of the men were clearly implied by the totality of defendant’s statements. It was proper to consider these post‑arrest hearsay statements. Defendant was given a full opportunity to rebut the co‑defendants’ statements at the sentencing proceeding. He did not ask for an evidentiary hearing and said he would not submit any affidavits to rebut the post‑arrest statements. U.S. v. Edwards, 91 F.3d 1101 (8th Cir. 1996).
8th Circuit refuses to extend exclusionary rule to sentencing hearing. (770) The district court based its sentence in part on drugs that were suppressed at trial because they were illegally seized. The Eighth Circuit rejected defendant’s invitation to extend the exclusionary rule to sentencing hearings. Extending the exclusionary rule to sentencing would have a detrimental effect on the traditional judicial prerogative of sentencing an offender based on all relevant and reliable information. Whatever deterrence of police overreaching might result from excluding evidence at sentencing did not outweigh the cost of truncating the sentencing judge’s broad inquiry into all relevant and reliable information. U.S. v. Tauil‑Hernandez, 88 F.3d 576 (8th Cir. 1996).
8th Circuit says hearsay information supported drug quantity determination. (770) 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. The Eighth Circuit found ample evidence to support the court’s drug quantity findings. Three witnesses testified about their personal contacts with defendant and his couriers, identifying defendant as their primary source of cocaine. The witnesses all gave similar accounts of the various participants and their roles in the conspiracy. Defendant’s attempt to discredit this evidence, including the results of his polygraph test, merely challenged the credibility determinations of the district court. The guidelines permit the use of hearsay if it has sufficient indicia of reliability. The hearsay declarants were drug couriers who defendant himself confirmed had assisted him in distributing cocaine. As such, if the federal rules of evidence were applicable, these couriers would be deemed co‑conspirators and their statements would fit under an exception to the rule against hearsay. Furthermore, the accomplices had no reason to misrepresent the source of the drugs. U.S. v. Campos, 87 F.3d 261 (8th Cir. 1996).
8th Circuit rejects use of judicial experience, price of drugs, or origination point to determine type of meth. (770) Defendant challenged the court’s finding that all of the methamphetamine involved in his offense was D‑ rather than L‑methamphetamine. The judge noted several factors, including the fact that none of the numerous methamphetamine trials over which the judge had presided had involved L‑meth; the price for the drugs in this case was too high for L‑meth; the fact that L‑meth would not have been sent from California to Missouri, and that all of the methamphetamine recovered by the police was D‑meth. The Eighth Circuit agreed with defendant that the district court could not base its finding on judicial experience, the price of the drugs, or the fact that the drugs originated in California. The government presented no evidence about the relative prices of D‑ and L‑meth or the probability that L‑meth would be transported across the country. The court was, however, entitled to consider the fact that the seized drugs were D‑meth. Since the record was unclear about whether the court gave dispositive weight to any of the improper considerations, the case was remanded. U.S. v. McMullen, 86 F.3d 135 (8th Cir. 1996).
8th Circuit refuses to subpoena witnesses for sentencing. (770) Defendant challenged the court’s refusal to subpoena his co‑conspirator, an undercover officer and a DEA agent to testify at his sentencing hearing. Defendant wanted to question them about the different drug quantities referred to in trial testimony and in their statements in the PSR. The Eighth Circuit held that the refusal to subpoena the witnesses was not an abuse of discretion. The co‑conspirator’s statements about drug quantities did not so greatly increase the sentence as to trigger due process concerns. The undercover officer and the DEA agent testified at trial about the co‑conspirator’s statements and were subject to thorough cross‑examination. Moreover, the co-conspirator indicated through defense counsel that if subpoenaed, she would invoke the 5th Amendment and refuse to testify. U.S. v. Byrne, 83 F.3d 984 (8th Cir. 1996).
8th Circuit says PSR is not evidence when facts are challenged by defendant. (770) Defendant pled guilty to abusive sexual contact with a minor female. The PSR recommended that the offense level be increased because he sexually abused the victim. Defendant filed written objections to the PSR, objecting to the “fact” that he committed sexual abuse. At sentencing, the government offered no evidence to support the disputed fact and failed to correct the district court when it mistakenly said no objection had been made to the factual aspects of the report. The Eighth Circuit remanded, because when the facts in a PSR are challenged, the PSR itself is not evidence, and the government must prove those facts at sentencing. Defendant was not required to request en evidentiary hearing under local rules. Rather, it was the government that needed a hearing. The PSR’s recommendation was based on what the child victim told police and mental health professionals. It was likely these people made written reports summarizing their interviews. If the district court found these reports and live testimony reliable and credible, then this would be sufficient to establish the fact of sexual abuse. U.S. v. Burke, 80 F.3d 314 (8th Cir. 1996).
8th Circuit says considering facts outside stipulation did not breach plea bargain. (770) Defendant argued that the government violated its plea agreement with him by allowing the district court to consider conduct outside the stipulated facts, including uncharged conduct. The Eight Circuit held that the government’s introduction of facts outside the stipulation did not breach the plea agreement. First, several of the events mentioned by the government occurred after defendant entered his plea agreement. Second, nowhere in the plea agreement did the government agree to limit the information it would give the court for sentencing. Additionally, when the court asked defendant if anyone had made any other offer or promise, defendant said “No.” The district court did not err in using uncharged conduct to determine defendant’s sentence. The plea agreement did not limit the government or the district court to the stipulated facts. U.S. v. Griggs, 71 F.3d 276 (8th Cir. 1995).
8th Circuit finds evidence sufficient without relying on suppressed note. (770) Defendant argued that the district court improperly relied on a drug note suppressed at trial to hold him accountable for 120 grams of methamphetamine at sentencing. The Eighth Circuit found enough evidence in the record to support the drug quantity finding without reference to the suppressed note. Several credible witnesses testified that defendant distributed small quantities of methamphetamine to numerous individuals. Based on this, the district court concluded that defendant was responsible for at least 100 grams but less than 400 grams of methamphetamine. U.S. v. Kinshaw, 71 F.3d 268 (8th Cir. 1995).
8th Circuit upholds court’s choice between two permissible views of the evidence. (770) Defendant participated in a violent drug-trafficking enterprise. In the course of sentencing defendant for RICO charges, the district court found she was accountable for the murder of an associate. Defendant argued that the evidence relied on by the court was not credible. The Eighth Circuit found defendant’s argument was an attack on the credibility of a government witness and the court’s choice between two permissible views of the evidence. A co-conspirator testified that defendant was present at a meeting in her house in which the weapon used to murder the victim was loaded, and that defendant delivered it to another residence so that the killer could pick it up to use in the murder. The court chose to credit this testimony rather than the allegedly contradictory evidence noted by defendant. The district court was in the best position to evaluate the testimony of various witnesses. Judge Heaney dissented. U.S. v. Darden, 70 F.3d 1507 (8th Cir. 1995).
8th Circuit approves reliance on co-conspirator’s drug quantity estimates. (770) Defendant challenged the district court’s drug quantity determination, claiming that his co-conspirators’ testimony was not credible because it was rejected by the jury. The Eighth Circuit affirmed the district court’s reliance on the co-conspirators’ testimony. The district court’s quantity determination was based on its review of the evidence and credibility of the witnesses. Although the court noted that some of the witnesses exhibited credibility problems, the court went on to make specific findings concerning each witness’s testimony and the quantity attributed to determine the base offense level. The court considered all of the evidence presented, including credibility, and approximated a quantity of drugs attributable to defendant. Judge Bright concurred separately to protest the unreasonable sentence required by the guidelines. U.S. v. Hiveley, 61 F.3d 1358 (8th Cir. 1995).
8th Circuit relies on computer equipment not admitted at trial for counterfeiting enhancement. (770) Defendant was convicted of passing counterfeit money. The district court enhanced his sentence under § 2B5.1(b)(2) for manufacturing the counterfeit bills or possessing a counterfeiting device. Defendant argued that the district court improperly relied on computer equipment found in his home because the equipment was not admitted at trial. The Eighth Circuit held that the computer equipment, a co-conspirator’s testimony, defendant’s possession of the master bills, as well as the recovery of a copied portion of a counterfeit bill from defendant’s residence all constituted reliable evidence that defendant manufactured counterfeit bills. The court properly considered the computer equipment. The court only overruled the admission of computer equipment during trial because the government failed to disclose the evidence to the defense before trial. The issue of a witness’s credibility is “virtually unreviewable on appeal.” U.S. v. Malone, 49 F.3d 393 (8th Cir. 1995).
8th Circuit says defendant need not be warned that statements can be used at sentencing. (770) Defendant made incriminating statements to a DEA agent. Although the agent informed him of his Miranda rights, defendant argued that he was entitled to a specific warning that his statements could be used against him at sentencing. The Eighth Circuit held that a defendant is not entitled to a specific warning on the potential sentencing consequences of waiving the right to remain silent. The commonly given Miranda warning, which advises a defendant that his statements can be used against him in court, includes the sentencing court. U.S. v. Johnson, 47 F.3d 272 (8th Cir. 1995).
8th Circuit upholds consideration of evidence presented at sentencing hearing rather than at trial. (770) The Eighth Circuit summarily rejected defendant’s claim that it violated due process to base a drug quantity finding on evidence presented at his sentencing hearing, rather than at trial. U.S. v. Lopez, 42 F.3d 463 (8th Cir. 1994).
8th Circuit says hearsay testimony satisfied Wise requirements. (770) Defendant argued that the testimony relied on by the district court did not satisfy the requirements of the Confrontation Clause. The 8th Circuit rejected the argument, since the district court met the requirements in U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc). The district court carefully analyzed the testimony in open court and found, under a clear and convincing standard of proof, that the testimony was sufficiently reliable to support the finding that defendant was accountable for at least 1.5 kilograms of cocaine. The court’s use of a clear and convincing standard of proof satisfied any challenge that defendant might raise to the sentencing enhancement resulting from the application of the relevant conduct provisions of the guidelines. U.S. v. Matthews, 29 F.3d 462 (8th Cir. 1994).
8th Circuit says court not bound by information contained in stipulation of facts. (770) Defendant argued that the sentencing court improperly relied on information contained in his presentence report that was not included in the stipulation of facts in his written plea agreement. The 8th Circuit affirmed. Section 6B1.4(d) says a court is not bound by the stipulation of facts and may rely on the presentence report to determine the sentence. Defendant’s plea agreement and stipulation of facts cited § 6B1.4 is its caption. Defendant claimed he did not understand the plea agreement, but did not seek to withdraw his plea. U.S. v. Lutfiyya, 26 F.3d 1468 (8th Cir. 1994).
8th Circuit relies on defendant’s post-arrest statements to find drug quantities. (770) Defendant was arrested after a crack cocaine transaction. The district court relied upon defendant’s post-arrest statements to authorities describing his previous crack transactions to determine drug quantity. The 8th Circuit affirmed. The government introduced testimony corroborating the statements. Although defendant testified he had never engaged in any crack transactions before the day of his arrest, and that he did not remember making any statement to authorities, the court was entitled to discredit his testimony. U.S. v. Wyatt, 26 F.3d 863 (8th Cir. 1994).
8th Circuit relies on co-conspirator testimony to determine drug quantity. (770) Defendants argued that the co-conspirator’s testimony lacked credibility, reliability and corroboration. However, the 8th Circuit found that the record supported the district court’s finding that defendants were each responsible for between three and 10 kilograms of methamphetamine. Although the credibility of one witness was questionable, three co-conspirators described defendants’ involvement with a total of 9.5 kilograms of methamphetamine. In addition, three other individuals linked defendants to quantities of methamphetamine. 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 relies on detective’s testimony about jailhouse conversation with defendant. (770) A detective testified at trial that defendant made incriminating statements to him in jail about defendant’s drug trafficking activities. The 8th Circuit held that the detective’s testimony had sufficient indicia of probable accuracy to rely upon it at sentencing. First, the court had previously refused to suppress the statements. Second, defendant did not dispute the fact that the detective was at the jail on the day of his arrest or the fact that they had a conversation. U.S. v. Pugh, 25 F.3d 669 (8th Cir. 1994).
8th Circuit permits relying on evidence from co-defendants’ trial if sentencing judge presided. (770) Defendant argued that there was insufficient evidence to support a § 3B1.1(a) enhancement. No evidence was introduced at defendant’s sentencing hearing, and there was no trial because defendant pled guilty. The 8th Circuit found that there was sufficient evidence, because the government had introduced evidence concerning this issue at the trial of co-defendants. The court held that the sentencing court may consider evidence from a codefendant’s trial, without rehearing, if that evidence is relevant to the issue disputed at the sentencing phase, and if the sentencing judge also presided over the co-defendant’s trial. U.S. v. Fetlow, 21 F.3d 243 (8th Cir. 1994).
8th Circuit upholds estimate based on pouring cocaine into paper bag. (770) Defendant challenged a witness’s estimate of the quantity of cocaine she saw in defendant’s possession. The estimate was based on her watching a police officer pour cocaine into a paper bag. When the bag appeared to contain the amount of cocaine she had seen, she told the officer, and the officer weighed the cocaine in the bag. The 8th Circuit found no error in the district court’s consideration of this estimate. There was nothing inherently unreliable in it. Moreover, there was more than ample evidence to support the court’s finding that defendant was responsible for at least 525 grams of cocaine. U.S. v. West, 15 F.3d 119 (8th Cir. 1994).
8th Circuit considers testimony of witnesses who were not permitted to testify at trial. (770) Because some witnesses were left off the government’s trial witness list, they were not permitted to testify at trial. Defendant argued that they should have been excluded from the sentencing hearing as well. The 8th Circuit upheld the decision to allow the testimony of these witnesses at sentencing, noting that the defendant could hardly claim unfair surprise. U.S. v. West, 15 F.3d 119 (8th Cir. 1994).
8th Circuit holds that judge independently assessed credibility of witnesses. (770) Defendant contended that the district court failed to made an independent determination of the reliability of the testimony of two witnesses, relying solely on the jury’s verdict. The 8th Circuit rejected the claim, since the district court specifically stated at the sentencing hearing that it accepted their testimony. This statement demonstrated that the district court independently assessed the testimony and found that it contained sufficient indicia of reliability. The district court’s determination of witness credibility is virtually unreviewable on appeal. U.S. v. Behler, 14 F.3d 1264 (8th Cir. 1994).
8th Circuit refuses expert testimony on how substantial assistance provision might motivate government witness to lie. (770) Defendant argued that the district court erred in refusing to allow a criminal defense attorney to testify as an expert witness about the impact of the substantial-assistance reduction on witness credibility. The 8th Circuit found no error. The attorney’s proposed testimony was not suitable for expert opinion. It was within the realm of common sense that certain witnesses would have an incentive to incriminate the defendant in exchange for a lower sentence. U.S. v. French, 12 F.3d 114 (8th Cir. 1993).
8th Circuit relies on therapist’s testimony to affirm use of force enhancement. (770) Defendant pled guilty to abusive sexual contact with a child under 12. The 8th Circuit upheld an enhancement under section 2A3.4(a)(1) for using force or a threat, based upon the testimony of an experienced child therapist who provided the victim with 80 to 100 hours of counseling and therapy. The statements were corroborated in part by defendant’s later testimony, by medical records, and by the victim’s public conduct. The foundation laid might well have made the statements admissible at a trial, which strongly suggested that the testimony was sufficiently reliable to be considered at sentencing. Although defendant denied the victim’s accusations, and defense put on evidence attacking the victim’s credibility, the sentencing court’s decision to credit the therapist’s testimony was “virtually unreviewable” on appeal. U.S. v. Knife, 9 F.3d 705 (8th Cir. 1993).
8th Circuit holds that evidence presented at trial may be considered at sentencing. (770) Defendant claimed that his due process rights were violated when during sentencing, rather than holding an evidentiary hearing as to the number of marijuana plants involved in his offense. the district court relied on evidence presented at trial. The 8th Circuit held that the evidence presented at trial was properly considered at sentencing. Defendant did not challenge the evidence at trial. When the district court indicated its intent to rely upon this evidence at sentencing, defendant did not request the opportunity to call witnesses to rebut the evidence. U.S. v. Rose, 8 F.3d 7 (8th Cir. 1993).
8th Circuit relies on government agent’s testimony despite “confusing” cross-examination. (770) The 8th Circuit upheld the district court’s determination that defendant brought four ounces of cocaine with him on a trip to Colorado. The finding was based on a government agent’s testimony that defendant transported this quantity of cocaine into Colorado. The agent’s testimony was based on statements made by three co-defendants. Although the agent’s testimony on cross-examination was “somewhat confusing,” he did not clearly contradict his conclusion that the trip yielded four ounces. U.S. v. Kenyon, 7 F.3d 783 (8th Cir. 1993).
8th Circuit holds that hearsay evidence was reliable. (770) The 8th Circuit found that a witness’s hearsay testimony, as presented by a police detective, was sufficiently reliable to be considered by the district court at sentencing. The witness made her statements in the presence of her attorney while she was awaiting sentencing in state court. The detective testified that much of what she said was consistent with facts he discovered through his own investigation. The witness incriminated herself and did not attempt to shift the entire blame to defendant. Her statement was corroborated by other evidence, including defendant’s own testimony at sentencing. U.S. v. Cassidy, 6 F.3d 554 (8th Cir. 1993).
8th Circuit upholds reliance on recanted grand jury testimony. (770) A witness testified before the grand jury that he had sold crack cocaine for defendant. At defendant’s sentencing, the witness recanted, stating that he testified falsely before the grand jury because he had been coerced by a DEA agent. The 8th Circuit upheld the district court’s reliance upon the recanted grand jury testimony. The DEA agent testified that he had never threatened or coached the witness in any way, and had only interviewed the witness several weeks before the grand jury proceedings. Additionally, the witness’s brother testified that the witness had sold crack cocaine for defendant. The sentencing court was entitled to discredit the witness’s testimony at the sentencing hearing and rely upon the grand jury testimony. U.S. v. Matthews, 5 F.3d 1161 (8th Cir. 1993).
8th Circuit upholds reliance on testimony from trial of co-conspirators. (770) The 8th Circuit held that the district court did not violate defendant’s Confrontation Clause rights by relying on testimony from the trial of his co-conspirators to deny defendant a minor participant reduction. U.S. v. Rayner, 2 F.3d 286 (8th Cir. 1993).
8th Circuit directs government to stop including immunized information in PSR. (770) The 8th Circuit held that it was error for the presentence report to contain immunized information about defendant’s prior involvement in drug dealing. Once the government has agreed to a grant of immunity and the would-be defendant has testified, that testimony is useless against the testifier, and may not be used to affect a subsequent sentence of the testifier. While including the immunized facts in the PSR was error, it was not prejudicial, since those facts did not affect defendant’s sentence. The court directed the government to cease the practice of including immunized information in the PSR. U.S. v. Abanatha, 999 F.2d 1246 (8th Cir. 1993).
8th Circuit upholds estimate based on co-conspirator’s testimony despite effective cross-examination. (770) One coconspirator testified that he received about 30 kilograms of cocaine from defendants, a second testified that he received between 10 and 15 kilograms of cocaine, a third said he witnessed transactions involving at least four kilograms, and a fourth testified that he received four kilograms of cocaine from defendants. Based on this testimony, the 8th Circuit upheld the district court’s decision to attribute 45 kilograms of cocaine to defendants. The district court recognized that “forceful cross-examination of these witnesses was at times effective,” but on balance found the credibility of the witnesses sufficient to justify the 45 kilogram finding. U.S. v. Casas, 999 F.2d 1225 (8th Cir. 1993).
8th Circuit upholds reliance on cooperating witness despite some inconsistencies. (770) The 8th Circuit upheld the district court’s reliance on the testimony of a cooperating witness to determine the drug quantity involved in defendant’s offense, even though there were some inconsistencies in the testimony. The credibility of a witness’s testimony concerning drug quantities is an issue for the district court which is “virtually unreviewable on appeal.” The district court is free to believe all, some, or none of the witness’s testimony. Here, the district court believed some of the testimony of the cooperating witness. The court recognized there were some inconsistencies in the past and present testimony, but found that the present testimony was the most credible. U.S. v. Carter, 997 F.2d 459 (8th Cir. 1993).
8th Circuit affirms reliance on witness alleged to be unreliable by virtue of cocaine addiction. (770) Defendant argued that there was no reliable evidence tying him to marijuana sold by two dealers. The 8th Circuit affirmed the district court’s reliance on the testimony of a witness who said that defendant supplied the two dealers. It was not clear error for the court to credit the witness even though defendant argued the witness’s cocaine addiction rendered him unreliable. U.S. v. Wiley, 997 F.2d 378 (8th Cir. 1993), abrogation on other grounds recognized by U.S. v. Bieri, 21 F.3d 819 (8th Cir. 1994).
8th Circuit rejects finding that object of conspiracy was 150 pounds of marijuana. (770) A detective testified that when he was asked how much marijuana he wanted, he said 150 pounds. But when he discussed this with one of the defendants, the defendant stated he only had 30 pounds left. The presentence report for all four defendants indicated that a confidential informant had told an agent that 150 pounds were available. But a presentence report is not evidence. The confidential informant did not testify, and the government introduced no evidence to support the statement. Moreover, the government produced no evidence that the object of the conspiracy included 43 pounds of marijuana seized from one defendant’s house. Although that defendant could be held responsible based on his admission that he helped package the marijuana, the other co-defendants could not. U.S. v. Garrido, 995 F.2d 808 (8th Cir. 1993).
8th Circuit upholds consideration of transcript of interview with sexually abused minor. (770) Defendant was convicted of charges relating to producing and receiving photographs of a minor engaged in sexually explicit conduct. The 8th Circuit upheld the district court’s consideration of the transcript of an interview with the minor, in which she stated that defendant took pictures of her while she was undressed. There was no confrontation clause violation, since the statement had sufficient indicia of reliability. It was not credible that a nine-year old girl would take nude photos of herself (as defendant suggested) and then falsely state during an interview that defendant had taken the pictures. U.S. v. Jones, 994 F.2d 456 (8th Cir. 1993).
8th Circuit rejects Confrontation Clause challenge to consideration of hearsay. (770) At sentencing, the district court considered the transcript of a witness’s sworn testimony. The 8th Circuit affirmed that the consideration of this hearsay evidence did not violate the Confrontation Clause. The testimony had sufficient indicia of reliability to support its probable accuracy: the testimony was taken under oath at a sentencing hearing. U.S. v. Parker, 989 F.2d 948 (8th Cir. 1993).
8th Circuit upholds use of FBI agent’s testimony about defendant’s admissions of prior crimes. (770) The district court departed upward based on prior criminal conduct by defendant that did not result in a conviction. An FBI agent testified that defendant had admitted striking his ex-girlfriend, who fell to the ground, and then kicking her. The agent testified that defendant had admitted striking his ex-girlfriend at other times as well. The 8th Circuit held it was proper to consider the agent’s testimony. That testimony summarized statements made by defendant himself, which are not hearsay. Defendant had ample opportunity to cross-examine the agent about the reliability of his recollection of defendant’s statements and the circumstances under which they were made. The transcript made clear that the district court did not rely on hearsay accounts in defendant’s presentence report concerning his prior criminal conduct. U.S. v. Norquay, 987 F.2d 475 (8th Cir. 1993), abrogated on other grounds by U.S. v. Thomas, 20 F.3d 817 (8th Cir. 1994).
8th Circuit rules that court failed to resolve objection to money laundering enhancement. (770) Based on the grand jury testimony of two accomplices, defendant’s presentence report concluded that defendant received $458,000 from these accomplices for drugs he sold to them, and that this money was concealed and laundered. Defendant objected, arguing that the witnesses were not credible and that the $458,000 should have been reduced by the amount defendant paid his suppliers and other business expenses. The 8th Circuit found that the district court failed to properly resolve defendant’s objection. The hearsay statements in the presentence report did not have “sufficient indicia of reliability to support their probable accuracy.” There was nothing to support the conclusion that defendant laundered all of the $458,000 of the drug proceeds he received. Once alerted to defendant’s objections, the district court had an obligation to receive evidence other than the probation officer’s conclusions and to make a specific factual finding, based on a preponderance of the evidence. U.S. v. Mahler, 984 F.2d 899 (8th Cir. 1993).
8th Circuit holds that sentencing court was not required to consider hearsay evidence. (770) Based on U.S. v. Fortier, 911 F.2d 100 (8th Cir. 1990), the district court refused to consider certain hearsay evidence contained in the presentence report absent a showing that the declarant was unavailable. Later, the en banc 8th Circuit overruled Fortier, holding that the Confrontation Clause does not apply to sentencing proceedings and that hearsay evidence is admissible if it is sufficiently reliable and credible. The 8th Circuit found no abuse of discretion in the district court’s decision to exclude the hearsay testimony at sentencing. Neither the guidelines nor Circuit law requires a sentencing court to consider the sort of hearsay testimony proffered by the government. The record indicated that apart from Confrontation Clause concerns, the district court had doubts about the reliability of the grand jury testimony. U.S. v. Harris, 982 F.2d 317 (8th Cir. 1992).
8th Circuit refuses to consider objection to hearsay raised for first time on appeal. (770) Defendant argued for the first time on appeal that the victim’s written statement upon which the court relied to enhance his sentence was unreliable hearsay and defendant did not have a reasonable opportunity to object. The 8th Circuit refused to review this issue, since defendant made no showing of plain error. U.S. v. Merritt, 982 F.2d 305 (8th Cir. 1992).
8th Circuit concludes that court did not rely on hearsay to determine drug quantity. (770) The 8th Circuit rejected defendant’s argument that the district court erroneously relied on hearsay in determining the quantity of marijuana. The district court based its quantity determinations on testimony from the specific recollection of witnesses who were subject to cross-examination. The witnesses testified on the basis of first-hand observation, personal recollection and in one case from written records. One witness testified that he was present when loads had been weighed, and another testified that he was paid based on the weight he transported. U.S. v. Alexander, 982 F.2d 262 (8th Cir. 1992), appeal after remand, 12 F.3d 1103 (8th Cir. 1994).
8th Circuit upholds consideration of hearsay to impose leadership enhancement. (770) The district court imposed a two-level leadership enhancement based on hearsay testimony in the presentence report concerning defendant’s role in a bank robbery. Relying on U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc), the 8th Circuit rejected defendant’s claim that the district court’s reliance on the hearsay violated his constitutional rights. Due process was not implicated because the two level increase in offense level resulted in less than a two-fold increase in sentence. The hearsay was reliable since it was corroborated by the declarant’s testimony at defendant’s aborted trial. The declarant was subjected to vigorous cross-examination and the trial judge was able to assess his testimony. U.S. v. Pedroli, 979 F.2d 116 (8th Cir. 1992).
8th Circuit upholds consideration of hearsay statements of confidential informant. (770) Based on its recent decision in U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc), the 8th Circuit rejected defendant’s claim that the district court’s consideration of a hearsay statement of a confidential informant violated his 6th Amendment confrontation clause rights. U.S. v. Hale, 977 F.2d 455 (8th Cir. 1992).
8th Circuit, en banc, overrules Fortier and holds that Confrontation Clause does not apply to sentencing hearing. (770) In U.S. v. Wise, 923 F.2d 86 (8th Cir. 1991), an 8th Circuit panel reversed defendant’s sentence on the ground that the district court had improperly relied upon a probation officer’s hearsay testimony without undertaking the confrontation clause analysis required by U.S. v. Fortier, 911 F.2d 100 (8th Cir. 1990). In this case, the 8th Circuit, en banc, overruled Fortier and a similar holding in U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990) and held that the right to confront witnesses does not attach at a sentencing hearing. It is only where the sentencing phase constitutes “a separate criminal proceeding” that due process requires that a defendant have the opportunity to confront and cross-examine witnesses. The guidelines have not so changed the sentencing phase that it constitutes a separate criminal proceeding. The use of relevant conduct at sentencing does not transform sentencing into a new guilt phase. The guidelines’ provision that only information containing “sufficient indicia of reliability to support its probable accuracy” satisfies hearsay concerns. Judge Beam concurred specially and Chief Judge Arnold and Judges Lay and McMillian concurred in part and dissented in part. U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc).
8th Circuit, en banc, upholds reliance upon probation officer’s hearsay statements. (770) Defendant’s probation officer testified at his sentencing hearing that based on admissions of two persons who were placed on pretrial diversion and admissions by two others in connection with state court proceedings, he believed that defendant had given these four people counterfeit money. The 8th Circuit, en banc, affirmed that the probation officer’s hearsay testimony was sufficiently reliable to support a leadership enhancement. It was fair to assume that a condition of the pretrial diversion of the first two participants was their agreement to give truthful information. Any self-incriminating statements made by them was a statement against penal interest. The information obtained as a result of the state court proceedings against the last two participants was reliable because their admissions of guilt were made in open court. Although the probation officer never spoke with one of the men, the source of the probation officer’s information (the Secret Service and the prosecutor’s office) rendered it reliable. U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc),
8th Circuit upholds reliance on ringleader’s trial testimony as to drug quantity. (770) The 8th Circuit rejected defendant’s claim that the district court improperly relied upon his co-conspirator’ trial testimony as to the quantity of drugs involved in their drug conspiracy. The co-conspirator testified under oath and was vigorously cross-examined, so there was no hearsay or confrontation clause issue. The co-conspirator as ringleader was in the best position to quantify the conspiracy’s activities. Witness credibility is an issue for the sentencing judge that is virtually unreviewable on appeal. However, the case was remanded because the court did not explain how it reached its quantity determination. On remand, the district court was to specifically explain whether it found the co-conspirator’s testimony credible (a decision which would be virtually unreviewable), or whether because there was no other evidence, it felt bound to accept that evidence (which would be an error of law). Like any other fact finder, the sentencing judge is free to believe all, some, or none of a witness’s testimony. U.S. v. Candie, 974 F.2d 61 (8th Cir. 1992).
8th Circuit declines to consider propriety of hearsay under law-of-the-case doctrine. (770) Defendant received disability benefits on behalf of her infant granddaughter, and made false statements to the Social Security Administration in order to continue receiving those benefits after the granddaughter moved elsewhere. The 8th Circuit remanded for resentencing because the district court had imposed an incorrect enhancement. At resentencing, the district court sentenced defendant at the top of her newly calculated guideline range, based on hearsay statements of defendant’s daughter that defendant had misused the granddaughter’s benefits. On defendant’s second appeal, she challenged the district court’s reliance upon the hearsay to determine that she had misused the child’s benefits. The 8th Circuit refused to consider this argument under the law-of-the-case doctrine, because it had implicitly rejected it in the first appeal. U.S. v. Callaway, 972 F.2d 904 (8th Cir. 1992).
8th Circuit affirms consideration of defendant’s criminal record in rejecting his testimony. (770) Defendant received an enhancement for obstruction of justice based on a government agent’s testimony that during his investigation defendant threatened the agent’s family and girlfriend. Defendant denied making such a threat, but the district court credited the agent’s testimony over defendant’s in part because of defendant’s criminal record. Defendant contended that it was not proper to impeach his credibility with his prior convictions because they were too old to be considered for impeachment under Fed. R. Evid. 609(b). The 8th Circuit rejected the argument, noting that the Rules of Evidence do not apply at sentencing. Moreover, the allegedly stale convictions were not the only reason the court credited the agent’s testimony over defendant’s. At a previous hearing to revoke defendant’s bail, the court also credited the agent’s testimony over defendant’s, noting that it had always found the agent to be a truthful witness. U.S. v. Allmon, 972 F.2d 244 (8th Cir. 1992).
8th Circuit rejects use of “baseless conclusion” by probation officer to resolve disputed issue. (770) Defendant was indicted on various drug charges, but the government moved to dismiss two of the counts where the surveillance team had been unable to track a drug dealer. No evidence was introduced at trial relating to these transactions. Over objection, the court relied on the probation report’s inclusion of these drug quantities in sentencing. The 8th Circuit reversed. Once a defendant objects, the government must establish the fact by a preponderance of the evidence. Once alerted to defendant’s objections, the court had an obligation to receive evidence other than the probation officer’s conclusions and make specific factual findings regarding the disputed facts. It was error rely solely on a presentence report containing “a baseless conclusion” by a probation officer to resolve the fact in issue. U.S. v. Bluske, 969 F.2d 609 (8th Cir. 1992).
8th Circuit rejects drug calculation which relied on testimony of unreliable witness. (770) The 8th Circuit reversed the district court’s determination of drug quantity because it appeared to be based upon the testimony of an unreliable witness. The court relied upon the computation in defendant’s presentence report, however, the presentence report merely contained the vague statement that “information was developed at trial through witness testimony that [defendant’s] organization distributed at least 491.1 grams of crack cocaine.” In order to reach the 491.1 gram figure, the presentence report would have to have considered an interview with one witness who proved to be inherently unreliable. This witness lied about drug tests which were administered to her while on probation. She also admitted that her drug use caused memory impairment, and her testimony indicated that she did not clearly remember the number of occasions on which she had purchased drugs from defendant. Thus, this witness’ testimony lacked sufficient indicia of reliability to serve as a basis for calculating the quantity of cocaine base properly attributable to defendant. U.S. v. Simmons, 964 F.2d 763 (8th Cir. 1992).
8th Circuit upholds use of information contained in co-defendant’s cooperation agreement. (770) The 8th Circuit rejected the contention that in sentencing defendant it was improper for the district court to rely upon statements his co-defendant made to the government in the co-defendant’s cooperation agreement. Although defendant’s agreement with the government provided that the government could not use defendant’s statements against him in certain circumstances, nothing in the agreement or the 5th Amendment prevented the government from using a co-defendant’s statements against him. Moreover, the consideration of such information did not change defendant’s offense level and therefore any error was harmless. U.S. v. Summerfield, 961 F.2d 784 (8th Cir. 1992).
8th Circuit upholds reliance on testimony at trial of co-defendants where defendant failed to object. (770) Defendant challenged the quantity of drugs attributed to him at sentencing, arguing that because he objected to the presentence report, the government should have presented evidence other than the presentence report at sentencing. The 8th Circuit affirmed. Although sentencing a defendant solely on hearsay statements from a presentence report may violate a defendant’s 6th Amendment rights, here the district court also relied upon the live testimony it heard at the trial of defendant’s co-defendant’s. The court considered this evidence at sentencing and defendant made no objection. Judge Arnold concurred, finding it was proper to rely upon this evidence only because defendant made no objection to it at sentencing. He was bothered by the implication in the majority opinion that the procedure followed here was proper. In a footnote, the majority noted that had defendant made a proper objection to the evidence its opinion might have been different. U.S. v. Summerfield, 961 F.2d 784 (8th Cir. 1992).
8th Circuit affirms determination of drug quantity based upon trial testimony. (770) Defendant contended that there was insufficient evidence to support the district court’s finding that 38 ounces of cocaine were attributable to him. The 8th Circuit affirmed defendant’s sentence, since there was trial testimony attributing at least 19 ounces (538.65 grams) of cocaine to him. Because a base offense level of 26 applies to amounts of at least 500 grams but less than two kilograms of cocaine, it was unnecessary to determine whether the government proved the additional amounts. U.S. v. Galvan, 961 F.2d 738 (8th Cir. 1992).
8th Circuit upholds consideration of uncharged conduct in pre-guidelines case. (770) In a pre-guidelines case, defendant contended that his sentence was excessive because the district court considered inappropriate and irrelevant information connecting him to other uncharged conduct. Specifically, defendant objected to the portion of the presentence report which indicated that he had provided cash to an unindicted co-conspirator for the purchase of cocaine in California. The 8th Circuit rejected this claim, since at sentencing a judge is given broad discretion as to the type of information he may consider. Defendant was given the opportunity to rebut and explain the information contained in the presentence report. An evidentiary hearing was held to address defendant’s numerous objections to the presentence report. Defendant’s 15-year sentence was not excessive because it fell within the statutory limits of 21 U.S.C. sections 841(b)(1)(B) and 846. U.S. v. Dunlop, 960 F.2d 55 (8th Cir. 1992).
8th Circuit affirms leadership role where person was helping defendant sell drugs. (770) The 8th Circuit upheld a managerial enhancement under 3B1.1 despite defendant’s claim that it was based on unreliable hearsay in the presentence report. The evidence supporting the enhancement was that (1) defendant sold cocaine to undercover officers, (2) admitted he lived on the second floor of the apartment in which police founds guns, four ounces of cocaine, and over $8,000 in cash, (3) a person in the apartment when defendant was arrested stated he was helping defendant sell drugs, and (4) three months later, defendant possessed $3,300 in cash. The district court did not have to rely the person’s hearsay statement about helping defendant sell drugs, because defendant also volunteered this statement, on his recross-examination at trial. The sentencing court was entitled to rely on evidence presented at trial. U.S. v. Roberts, 953 F.2d 351 (8th Cir. 1992).
8th Circuit rules court did not rely upon hearsay. (770) The 8th Circuit rejected defendant’s claim that the district court sentenced him on the basis of unreliable hearsay. The district court based its findings on testimony presented at trial as to the amount of cocaine involved and defendant’s role in the offense. U.S. v. Simpkins, 953 F.2d 443 (8th Cir. 1992).
8th Circuit rules district court did not rely on hearsay in determining drug quantity. (770) The 8th Circuit rejected defendant’s claim that the district court improperly relied on hearsay to establish the amount of amphetamine involved in his offense. The district court heard direct testimony from a DEA agent and a chemist at the sentencing hearing, and this evidence was not hearsay. Therefore, U.S. v. Fortier, 911 F.2d 100 (8th Cir. 1990), which held that hearsay evidence cannot be used at the sentencing hearing to enhance a sentence, is not applicable. Moreover, Fortier has recently been called into question and may be overruled when the 8th Circuit decides en banc U.S. v. Wise, 923 F.2d 86, vacated upon granting of rehearing en banc, (8th Cir. March 15, 1991). U.S. v. Haren, 952 F.2d 190 (8th Cir. 1991).
8th Circuit affirms that defendant bought one pound of methamphetamine for resale, not personal use. (770) The 8th Circuit rejected defendant’s contention that it was error for the district court to determine that he purchased one pound of methamphetamine from his suppliers for resale, rather than personal use. Witnesses testified that he bought methamphetamine in one ounce quantities, that those quantities were too big for personal use, that defendant packaged the drugs in smaller quantities for resale, and that defendant frequently sold the drugs to others. The court also rejected defendant’s claim that the finding as to drug quantity should be set aside because he was denied the right to confront the witnesses against him. Although the presentence report and sentencing hearing contained many hearsay reports, the district court primarily relied upon the direct testimony of one witness. This witness testified that she was the bookkeeper of one of defendant’s buyers, and that this buyer bought at least one pound of methamphetamine from defendant. This witness’s statements were not hearsay and defendant was able to cross-examine her about them. U.S. v. Apfel, 945 F.2d 236 (8th Cir. 1991).
8th Circuit affirms reliance upon co-defendant’s statements in sentencing defendant. (770) Defendant objected to the district court’s consideration of 42 grams of cocaine involved in a trip he allegedly made to Aberdeen, South Dakota for the purpose of distributing the cocaine. The government learned of this trip from a co-defendant after defendant had entered into his plea agreement. Defendant contended that it was improper to use this information, claiming that his own guilty plea “forced” his co-defendant to plead guilty. Therefore, defendant argued that the government was using against defendant “indirect information gained by defendant’s cooperation.” The 8th Circuit found no impropriety in using a co-defendant’s statements against a defendant who has pled guilty. There was no merit in defendant’s argument that defendant’s guilty plea “forced” the co-defendant to plead guilty and prevented the co-defendant’s statements from being used against defendant. U.S. v. Hewitt, 942 F.2d 1270 (8th Cir. 1991).
8th Circuit reverses for reliance on hearsay in lab report to determine presence of cocaine base. (770) Defendant stipulated that he was pleading guilty to three counts involving 364.93 grams of cocaine. However, the presentence report attributed 432.24 grams of cocaine to him based on a lab report which indicated that .68 grams of the drugs were cocaine base. Defendant contended that the .68 grams of cocaine base belonged to his co-defendant. The 8th Circuit ruled that defendant could not challenge possession of the cocaine since he stipulated to 364.93 grams of cocaine in his guilty plea. However, the court found that the district court’s finding that the .68 grams were cocaine base was not supported by a preponderance of the evidence. The district court could not rely upon the hearsay in the lab report as a basis for its decision without establishing the reliability of the lab statement or finding an exception to the hearsay rule. U.S. v. Marshall, 940 F.2d 382 (8th Cir. 1991).
8th Circuit affirms firearm enhancement despite acquittal for using a firearm in connection with a drug trafficking crime. (770) The 8th Circuit rejected defendant’s contention that his acquittal for using a firearm in connection with a drug trafficking crime under 18 U.S.C. § 924(c) precluded a two-level enhancement under guideline § 2D1.1(b)(1) for possession of a firearm during a drug trafficking crime. The government’s burden on the weapons charge is to prove guilt beyond a reasonable doubt, while the guidelines enhancement applies “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S. v. Eberspacher, 936 F.2d 387 (8th Cir. 1991).
8th Circuit finds uncharged conduct was not proven by a preponderance of the evidence. (770) The district court included in defendant’s offense level cocaine found in a neighbor’s apartment. The 8th Circuit reversed. A confidential informant asserted that both apartments were used to store drugs for defendant’s half-brother, a reputed drug kingpin. But the investigation failed to corroborate critical aspects of the informant’s story. Most significantly, a search of defendant’s apartment failed to produce the alleged drug proceeds, which formed the only direct link between defendant and the purported drug dealings between the neighbor and defendant’s half-brother. The government did not call the confidential informant to explain the link, and produced no chemical evidence to establish that the cocaine found in the two apartments came from the same source. U.S. v. Townley, 929 F.2d 365 (8th Cir. 1991).
8th Circuit finds reliance on hearsay violated confrontation clause but was harmless error. (770) The probation officer prepared defendant’s presentence report based on files of the U.S. Attorney in charge of the prosecution. As a result, the officer reported statements of witnesses who he had not personally interviewed, and who did not testify or make the statements under oath. The only witness presented at sentencing was the probation officer, who testified to the manner of his preparation of the presentence report. The 8th Circuit found that this procedure violated defendant’s rights under the Confrontation Clause, but that the error was harmless. The district court failed to determine whether each hearsay statement objected to fit within an exception to the hearsay rule or bore some “particularized guarantees of trustworthiness.” The error however, was harmless because the district court had already heard adequate testimony at trial to support each sentence enhancement defendant received. U.S. v. Lowrimore, 923 F.2d 590 (8th Cir. 1991).
8th Circuit upholds enhancement based on finding that defendant was source of heroin that contributed to death. (770) Defendant complained that there was insufficient evidence to enhance his sentence based on the fact that heroin that he supplied contributed to a death. The 8th Circuit rejected this contention. The district court reviewed relevant portions of the trial transcript, the medical examiner’s report, a letter prepared by an investigator for the defendant, a medical reference, a statement by the dead man’s widow, and the autopsy report. The court adopted the pathologist’s report ruling that heroin was a contributing factor in the death. The district court found by a preponderance of the evidence that the heroin was traceable to defendant. There was no abuse of discretion or violation of due process. U.S. v. Nassif, 921 F.2d 168 (8th Cir. 1990).
8th Circuit upholds inclusion of drugs co-conspirator “fronted” to defendant’s intermediary. (770) Defendant contended that the district court improperly included, in the calculation of his offense level, three kilograms of cocaine that a co-conspirator testified he “fronted” to defendant’s intermediary. The 8th Circuit upheld the district court’s calculation. Although defendant argued that the co-conspirator was unreliable, matters of credibility are for the district court to determine. The co-conspirator’s testimony was uncorroborated, but a district court may consider uncorroborated evidence, provided the defendant is given an opportunity to rebut it. Since defendant admitted that the co-conspirator supplied defendant with cocaine through the intermediary, it was not clearly erroneous for the district court to conclude that the three kilogram transfer was reasonably foreseeable by defendant. U.S. v. Frondle, 918 F.2d 62 (8th Cir. 1990).
8th Circuit reverses upward departure based on hearsay about “organized crime.” (770) Three FBI agents testified at defendant’s sentencing hearing that defendant was a leader of a local organized crime group, and that he was involved with, and may have committed, two murders. The agents’ testimony was based upon information supplied by two different confidential informants and FBI files. The district court departed upward based upon defendant’s involvement in organized crime and its finding that defendant’s criminal history category underrepresented his involvement in crime. The 8th Circuit reversed, finding that the testimony of the FBI agents was unreliable hearsay because it lacked insufficient corroboration. The fact that each confidential informant corroborated the other did not make the hearsay reliable because this was merely “hearsay upon hearsay upon hearsay.” The court declined to decide whether, in appropriate circumstances, ties to organized crime might provide a basis for an upward departure. U.S. v. Cammisano, 917 F.2d 1057 (8th Cir. 1990).
8th Circuit reverses valuation of stolen property based upon hearsay opinion of owner. (770) Defendant’s offense level was increased by one under guideline § 2B2.1(b)(2)(B), based on the district court’s determination that the value of property stolen by defendant exceeded $2,500. The only evidence of the value of the property was the owner’s estimate. The 8th Circuit remanded, finding that the government failed to prove the value of the stolen goods by a preponderance of the evidence. The owner was unavailable to testify, and therefore her opinion was presented by a police officer who spoke with her on the phone. The testimony indicated that many of the stolen items were gifts, and that the owner’s estimate was based on conjecture or sentimental value. The fact that the victim was well educated and the president of a local college was insufficient to support a conclusion that the victim’s estimates were accurate. U.S. v. Rivers, 917 F.2d 369 (8th Cir. 1990).
8th Circuit finds that trial court’s failure to admit impeaching evidence was harmless error. (770) Defendant contended that the trial court incorrectly refused to admit into evidence or consider at sentencing a memorandum which impeached the trial testimony that defendant knew of three additional kilos of cocaine. The 8th Circuit found that even if it was error to fail to admit the memo, it was harmless error, since removing the three additional kilos from defendant’s total would not change defendant’s base offense level. U.S. v. Meggers, 912 F.2d 246 (8th Cir. 1990).
8th Circuit upholds use of hearsay testimony at sentencing hearing. (770) Defendant complained that the sentencing court found that he played a leadership role in a counterfeiting ring on the basis of double hearsay: defendant’s probation officer testified as to what an informant told a Secret Service agent. The 4th Circuit found that since the probation officer had also spoken directly with the informant, the testimony was not double hearsay. The hearsay was admissible because the defendant was given the opportunity to cross examine the probation officer and to testify himself to rebut or explain the evidence. U.S. v. Manuel, 912 F.2d 204 (8th Cir. 1990).
8th Circuit holds that use of post-arrest statements in sentencing defendant does not violate due process. (770) The 8th Circuit rejected defendant’s argument that he was denied due process at sentencing because his post-arrest statements were used against him. Since defendant willingly revealed pertinent details of his background, it was proper for the district court to consider these details at sentencing. U.S. v. Smith, 909 F.2d 1164 (8th Cir. 1990).
8th Circuit upholds reliance on hearsay at sentencing. (770) The defendant asserted that the evidence of the alleged threat presented at sentencing was not reliable because it was based on the hearsay testimony of the victim’s social worker. The district court found the social worker’s testimony to be reliable, and the 8th Circuit accepted that finding. See U.S.S.G. § 6A1.3(a). U.S. v. Fire Thunder, 908 F.2d 272 (8th Cir. 1990).
8th Circuit affirms firearm enhancement because defendant was allowed to rebut uncorroborated hearsay. (770) Defendant’s base offense level was increased by two for possession of a firearm during a drug offense. During the police raid, the weapon and drug items were found in the west bedroom. Defendant was arrested in an east bedroom. A confidential informant told police that defendant resided in the west bedroom, and it was this uncorroborated hearsay upon which the district court relied in making the increase. Because defendant was given an opportunity to rebut the evidence connecting him with the firearm, the 8th Circuit affirmed the district court’s finding. U.S. v. Weaver, 906 F.2d 359 (8th Cir. 1990).
8th Circuit allows District Court to consider unprosecuted criminal activity at sentencing. (770) Defendant pled guilty to being a felon in possession of a firearm, and charges of bank fraud in a separate indictment were dismissed. At sentencing, the District Court relied on defendant’s participation in the bank fraud scheme when it imposed sentence. The 8th Circuit affirmed, holding that at sentencing the court has wide discretion and “may consider criminal activity for which defendant has not been prosecuted, provided defendant is given a chance to rebut or explain it.” U.S. v. Lang, 898 F.2d 1378 (8th Cir. 1990).
8th Circuit reverses four level increase in assault case because it was based on misinformation. (770) Defendant was convicted of forcible rape and carnal abuse but acquitted of kidnapping. An erroneous prosecution summation of trial testimony was used to give a four level increase for use of force, and misinformation by the prosecution relied on to give a four level increase for abduction. The 8th Circuit held that the misinformation regarding use of force was not material because there was sufficient evidence to sustain defendant’s conviction under 18 U.S.C. § 2241(a). However, the victim had refuted at trial the statements used to justify the increase for abduction. Because this misinformation was material, the case was remanded to the district court to determine whether the upward departure was justified. The circuit court noted that the court could only consider information that has “sufficient indicia of reliability to support probable accuracy.” (Guidelines § 6A1.3(a)). U.S. v. Eagle Thunder, 893 F.2d 950 (8th Cir. 1990).
8th Circuit holds that chemist’s estimate was properly considered at sentencing even though he did not testify. (770) The presentence report relied on an estimate by a state chemist that the seized chemicals were sufficient to manufacture 22.5 pounds of methamphetamine. Although the chemist did not testify, the defendants were given an opportunity to explain or rebut the chemist’s statement. Moreover, the chemist’s estimate was corroborated by the testimony of an experienced drug enforcement agent. The 8th Circuit held that the sentencing court’s reliance on the chemist’s estimate did not deny due process. U.S. v. Evans, 891 F.2d 686 (8th Cir. 1989).
8th Circuit holds that conspiracy plea admits knowledge of elements of offense, and drugs specified in plea may be used to set offense level. (770) Defendant pled guilty to conspiracy to possess with intent to distribute cocaine, LSD and psilocybin mushrooms. He was also charged as an aider and abettor in the substantive counts, which alleged specific quantities. The 8th Circuit held that it was proper to set the offense level according to the aggregate quantities of cocaine, LSD and psilocybin, despite the defendant’s protestations that he had no knowledge of the LSD and psilocybin. The court held that “by pleading guilty defendant admits the material facts alleged in the charge.” Because the defendant’s guilty plea was valid, he thus admitted his knowledge of the drugs, and no further proof was required. The court noted that it would also have been proper to rely upon the quantities alleged in the dismissed counts under the relevant conduct section of the guidelines. U.S. v. Johnson, 888 F.2d 1255 (8th Cir. 1989).
8th Circuit holds acquittal on CCE count does not preclude 4 point enhancement for “organizer” status. (770) A convicted drug trafficker argued that the district court erroneously enhanced his offense level after it found him to be an “organizer” under § 3B1.1(a) on the ground that his acquittal on the CCE count collaterally estopped the government from relitigating his involvement. The 8th Circuit disagreed and affirmed the sentence enhancement based upon the guideline’s allowance for consideration of all “relevant conduct.” The two elements required under § 3B1.1(a) overlap with, but are different from, the five substantive elements of a CCE charge. U.S. v. Haynes, 881 F.2d 586 (8th Cir. 1989).
8th Circuit holds district court’s findings on disputed facts did not deny due process. (770) Defendant argued that he was denied due process because the presentence report was factually inaccurate. The 8th Circuit rejected his challenge, holding that he was afforded due process because the District Court made findings on his allegations as required by Fed. R. Crim. P. 32(c)(3)(D). The District Court’s findings that the defendant had obstructed justice, as alleged by the report, were not clearly erroneous, and a 2 point increase in the offense level was therefore proper. U.S. v. Sciacca, 879 F.2d 415 (8th Cir. 1989).
9th Circuit rejects claim that court’s comments during sentencing showed bias. (770) Defendant, an Armenian immigrant, pleaded guilty to defrauding Medicare. At sentencing, the district court stated that it was considering imposing a sentence at the high end of the guidelines range in part because “so many people come to this country . . . and . . . prey on this government’s institutions as their own personal piggybanks and direct the court to look at the terrible conditions from which they came as somehow an excuse or mitigating factor.” The Ninth Circuit held that the district court’s statement did not reflect such a high degree of antagonism as to make fair judgment impossible and rejected defendant’s claim that the statement showed a due process violation. U.S. v. Odachyan, 749 F.3d 798 (9th Cir. 2014).
9th Circuit says judge did not increase sentence because defendant couldn’t pay restitution. (770) Defendant was convicted of fraud offenses. At sentencing, the district court said it was ordering restitution but that it recognized that the long sentence would mean that defendant would probably not be able to pay restitution. The court added that imposing a lesser sentence probably would not result in greater restitution. The Ninth Circuit held that the district court’s comments did not show that it had increased defendant’s sentence based on his inability to pay restitution. Rather, it considered a lower sentence to enable defendant to pay restitution. U.S. v. Anekwu, 695 F.3d 967 (9th Cir. 2012).
9th Circuit finds no procedural error in failure to address arguments for lower sentence. (770) On appeal from his above-Guidelines sentence, defendant argued that the district court committed procedural error by failing to address all of his arguments for a lower sentence. Reviewing for plain error, the Ninth Circuit noted that the district court mentioned all of the arguments that defendant advanced in support of a lower sentence and found the court sufficiently justified the sentence imposed. U.S. v. Rangel, 697 F.3d 795 (9th Cir. 2012).
9th Circuit says court may rely on victims’ financial loss in imposing sentence. (770) At defendant’s sentencing for committing fraud and money laundering, the district court imposed an above-guidelines sentence. In explaining the sentence, the district court said that it had not taken defendant’s inability to pay restitution into consideration. On appeal, defendant argued that the district court had relied on his inability to pay restitution in imposing sentence. The Ninth Circuit held that the district court may rely on the financial impact that a defendant’s offenses cause his victims and that the court may consider the defendant’s inability to pay restitution in assessing that impact. U.S. v. Rangel, 697 F.3d 795 (9th Cir. 2012).
9th Circuit allows hearsay in sentencing and restitution hearings. (770) Defendant argued that the district court erred in relying on hearsay evidence that the bank wrote off the loan as uncollectible before going into conservatorship. The Ninth Circuit rejected the argument, noting that the Federal Rules of Evidence, including the rule against hearsay, do not apply to sentencing hearings, including restitution determinations. U.S. v. Yeung, 672 F.3d 594 (9th Cir. 2012).
9th Circuit reverses sentence that was based on unreliable testimony from inmate. (770) Defendant was a prison guard convicted of violating the civil rights of prison inmates. At sentencing, the government sought to rebut the Probation Office’s assertion that defendant was otherwise law-abiding by relying on assertions made by an inmate at the prison where defendant worked. The assertions were contained in FBI reports and the inmate’s testimony at the trial of another prison guard. The inmate alleged that defendant had used methamphetamine and smuggled drugs into the prison. The district court relied on this information, but on appeal, the Ninth Circuit held that the inmate’s allegations were not a sufficiently reliable basis for defendant’s sentence. The case was ordered to be reassigned to a different judge on remand for resentencing. U.S. v. McGowan, 668 F.3d 601 (9th Cir. 2012).
9th Circuit reverses where court may have improperly based sentence on need for rehabilitation. (770) In Tapia v. U.S., 131 S.Ct. 2382 (2011), the Supreme Court held that a sentencing court may not impose or lengthen a prison term to promote an offender’s rehabilitation. In explaining the reasons for imposing a sentence at the high-end of defendant’s guidelines range, the district court repeatedly cited defendant’s struggles with substance abuse and her need to be enrolled in a drug treatment program. The court specifically noted that one of the factors that affected the length of defendant’s sentence was the need to provide drug abuse treatment. The government conceded that the district court had improperly considered the need to rehabilitate defendant but argued that defendant was not prejudiced. The Ninth Circuit held that because there was a reasonable possibility that the court’s consideration of defendant’s rehabilitative needs affected the length of her sentence and vacated and remanded for resentencing. U.S. v. Tapia, 665 F.3d 1059 (9th Cir. 2011)
9th Circuit finds rap sheet sufficient to show date and sentence for prior conviction. (770) Defendant pleaded guilty to a drug-trafficking offense. At sentencing, the government relied on defendant’s rap sheet to argue that defendant had three prior convictions, but it could not produce the certified court records documenting those convictions. The rap sheet was matched to defendant using his fingerprints. Defendant argued that without the court records, there was insufficient evidence that the sentence he received on his prior convictions was of sufficient length to justify increasing his criminal history score by two points. Defendant also argued that without the court documents, the court could not determine whether the prior convictions were too old to be included in his criminal history category. The Ninth Circuit held that in the absence of any evidence suggesting that the rap sheet contained errors of fact, it was sufficient to allow the court to determine the date of the prior conviction and the sentence imposed. U.S. v. Langer, 618 F.3d 1044 (9th Cir. 2010).
9th Circuit finds spreadsheets sufficiently reliable to show loss to fraud victim. (770) Defendants executed a scheme to deprive Microsoft of the full price that it would have received for sale of its software by fraudulently obtaining the software at the lower prices offered to educational users. The district court calculated the loss from defendants’ scheme based on spreadsheets prepared by the government that approximated the difference between the full retail price of the software and the price that defendants paid for it. Both IRS agents and Microsoft consultants reviewed the information in the spreadsheets to determine its accuracy. The Ninth Circuit held that the spreadsheets were sufficiently reliable to show loss even though they were hearsay. U.S. v. Ali, 620 F.3d 1062 (9th Cir. 2010).
9th Circuit finds expert testimony on source of injuries admissible to decide restitution. (770) Defendant was convicted of assault. His victim received compensation from a state crime victims fund for his medical bills and his injury-related loss of income. At sentencing, defendant sought to introduce expert testimony showing that the assault did not directly result in the disability for which the victims fund paid compensation. The district court declined to allow the expert to testify, ruling that it could not second-guess the victims fund’s decision that the victim was entitled to compensation. The Ninth Circuit held that the district court abused its discretion in refusing to allow defendant to present expert testimony that defendant’s conduct was not the sole cause of the victim’s mental and physical condition. U.S. v. Andrews, 600 F.3d 1167 (9th Cir. 2010).
9th Circuit upholds striking victims’ letters from PSR in child porn case. (770) Defendant pleaded guilty to possession of child pornography, in violation of 18 U.S.C. § 2252A(a) (5)(B). The presentence report (PSR) included letters from children depicted in the images that defendant possessed. The letters detailed the harm that the victims had suffered and the suffering they felt when the images were distributed. The district court struck the letters from the PSR, and the government appealed, arguing that the district court had violated the provision of the Crime Victims’ Rights Act, 18 U.S.C. § 3771, guaranteeing victims the right to be reasonably heard at sentencing. Eighth Circuit Judge Bright, joined by Judges Pregerson and Gould, held that the district court had satisfied the CRVA by considering the letters and that neither the CRVA nor Federal Rule of Criminal Procedure 32 required that the letters be attached to the PSR. U.S. v. Burkholder, 590 F.3d 1071 (9th Cir. 2010).
9th Circuit finds that court’s comments did not show that sentence was based on unreliable information. (770) Defendant pleaded guilty to possession of child pornography. As part of his plea, he acknowledged that he had intentionally destroyed his computer and electronic storage material that contained additional child pornography. The presentence report stated, among other things, that shortly before defendant’s arrest, the mother of defendant’s children alleged that he had sexually molested his three-year-old son. At sentencing, the district court noted that defendant may have destroyed thousands of other child porn images when he destroyed his computer and that allegations of sexual misconduct with minors continue to “swirl around” defendant. The Ninth Circuit held that the district court did not impose sentence on defendant based on false or unreliable information. U.S. v. Vanderwerfhorst, 576 F.3d 929 (9th Cir. 2009).
9th Circuit finds rap sheet sufficient to establish criminal history. (770) In calculating defendant’s criminal history score at sentencing, the district court relied on a rap sheet obtained from the California Law Enforcement Telecommunications System database. The rap sheet, which was compiled based on fingerprint matching, listed four misdemeanor convictions for defendant. Except for the docket sheets, the court files for those misdemeanors had been destroyed. The docket sheets bore the same case numbers as the rap sheet, but they identified defendant by a different name. The district court compared the information on the rap sheet with the docket sheets and concluded that they showed that defendant had sustained the convictions listed on the rap sheet. The Ninth Circuit held that the rap sheet was sufficiently reliable to be used in calculating defendant’s criminal history score. U.S. v. Alvarado-Martinez, 556 F.3d 732 (9th Cir. 2009).
9th Circuit finds police reports that established factual basis for plea may be basis for aggravated felony finding. (770) Defendant, charged with illegal reentry after deportation, in violation of 8 U.S.C. § 1326, had a prior conviction under California Health and Safety Code § 11360(a), which makes it a crime to transport, sell, or offer to sell a controlled substance. A violation of § 11360(a) is not categorically an “aggravated felony” that would trigger a 16-level increase in offense level under the Guideline for § 1326, § 2L1.2(b)(1)(A). Instead, a violation of § 11360(a) constitutes an aggravated felony only if judicially noticeable documents establish that the defendant sold or offered to sell a controlled substance. At sentencing, the district court determined that defendant’s prior offense constituted an aggravated felony because the complaint charging the offense alleged that defendant sold marijuana and because the police reports underlying the offense showed that defendant sold marijuana. Defendant stipulated when he pleaded guilty to the violation of § 11360(a) that the police reports provided a factual basis for the pleas. The Ninth Circuit held that the district court properly relied on the police reports because the defendant had stipulated that they provided a factual basis for his plea to violating § 11360(a). U.S. v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008).
9th Circuit finds no plain error in district court’s reliance on BOP study without prior notice. (770) At defendant’s sentencing for setting forest fires, in violation of 18 U.S.C. § 1855, the court referred to a Bureau of Prisons study measuring how age and criminal history category affect an offender’s likelihood of recidivism. The court did not make the study part of the record or inform defendant prior to sentencing that it intended to rely on the study. The Ninth Circuit noted that the district court should have notified defendant of the study before the sentencing hearing, but held that the district court’s reliance on the study was not plain error. U.S. v. Warr, 530 F.3d 1152 (9th Cir. 2008).
9th Circuit finds no error in adopting marijuana quantity found by jury. (770) Defendant stole one of thirty bales of marijuana from a truck transporting marijuana into the U.S. that had been intercepted by law enforcement officers. The bale that defendant stole was never recovered, but the average weight of the remaining bales was 10.5 kilograms. At trial, the jury found beyond a reasonable doubt that the bale weighed 10 kilograms, and the district court adopted that weight in calculating defendant’s offense level under the Guidelines. On appeal, defendant argued that the court should have used the weight of the lightest bale. The Ninth Circuit held that the district court had not clearly erred in adopting the jury’s finding. U.S. v. Gonzalez, 528 F.3d 1207 (9th Cir. 2008).
9th Circuit upholds finding that defendant used drugs when he possessed illegal firearm. (770) The guideline for the offense of possession of a firearm with an obliterated serial number, 2K2.1(a)(6)(A), provides for an offense level of 14 if the defendant “was a prohibited person” at the time of the offense. A prohibited person is defined to include a any person “who is an unlawful user of or addicted to any controlled substances.” At defendant’s sentencing, the district court set his offense level using § 2K2.1(a)(6)(A) based on the presentence report’s assertion that defendant was a regular user of methamphetamine. Because defendant did not contest the PSR’s factual findings, and instead conceded that he “had a meth problem” when caught with the illegal firearm, the Ninth Circuit held that the district court had not erred in setting defendant’s offense level. U.S. v. Snipe, 515 F.3d 947 (9th Cir. 2008).
9th Circuit says government was not estopped from arguing loss amount based on codefendant’s plea agreement. (770) Defendant was convicted of conspiracy and bankruptcy fraud. At sentencing, the district court determined the loss based on the amount of debt that defendant discharged in the fraudulent bankruptcy. Her codefendant pleaded guilty to conspiracy and attempted tax evasion. In the codefendant’s plea agreement, the parties stipulated that the court should use the Sentencing Guideline for tax offenses, and that guideline resulted in a lower loss amount. Defendant argued that the government’s agreement to the lower loss amount in the codefendant’s plea agreement should estop the government from arguing that the same conspiracy resulted in a greater loss for defendant. The Ninth Circuit rejected this argument, holding that the government did not make any factual assertion in the codefendant’s plea agreement that directly contradicted a position it took at defendant’s sentencing. U.S. v. Bussell, 504 F.3d 956 (9th Cir. 2007).
9th Circuit says expert’s meth estimate lacked reliable evidentiary basis. (770) At defendant’s sentencing for manufacturing methamphetamine, the district court determined the quantity of meth involved in the offense based in part on an expert’s testimony. That testimony rested in part on the expert’s assessment of the quantity of meth that could be produced using a 5,000-milileter flask found in defendant’s meth lab, even though that flask was apparently still in its original packaging. Although methamphetamine precursor chemicals were found in the lab, no methamphetamine was recovered. The expert did not know the purity of those chemicals and admitted that he could not reliably estimate the amount of meth that could be produced unless he knew the purity. The expert also admitted that his estimate represented the maximum theoretical yield from the lab. The Ninth Circuit held that the expert’s estimate had no reliable evidentiary basis and that the district court erred in relying on it. U.S. v. Chase, 499 F.3d 1061 (9th Cir. 2007).
9th Circuit holds defense expert should have been appointed to assist in meth quantity determination. (770) Prior to his sentencing hearing on his conviction for methamphetamine manufacturing, defendant unsuccessfully requested the appointment of an expert to calculate the quantity of drugs that should be attributed to him. At sentencing, a government expert testified that approximately 500-750 grams of methamphetamine could have been produced using the equipment found at one of defendant’s meth labs. Based on the number of empty boxes of a precursor chemical, the expert conceded, however, that the quantity may have been as low as 40 to 60 grams. The district court attributed 500 grams of meth to defendant from the lab. On appeal, the Ninth Circuit held that the district court abused its discretion in failing to appoint an expert to assist defendant in calculating the quantity of meth and rebutting the government’s expert. U.S. v. Chase, 499 F.3d 1061 (9th Cir. 2007).
9th Circuit, in amended opinion, says that abstract of judgment may not be used in modified categorical approach. (770) Under § 4B1.1, a defendant is a career offender if he has at least two prior convictions for a crime of violence or a controlled substance offense. In Shepard v. U.S., 544 U.S. 13 (2005), the Court held that in determining whether a defendant’s prior convictions qualify as career offender predicates, the sentencing court may examine only the statutory definition, the charging document, written plea agreement, transcript of a guilty plea colloquy, and any explicit factual finding by the trial judge to which the defendant agreed. To establish that defendant had a prior predicate conviction under a burglary statute that does not categorically define a crime of violence, the government submitted the information charging the defendant with the crime and a minute order showing that defendant entered a nolo contendere plea to the offense. In U.S. v. Snellenberger, 480 F.3d 1187 (9th Cir. 2007), the court held that the minute order was not sufficient to establish the factual basis of defendant’s plea and therefore did not show that his burglary conviction was for a crime of violence. The government filed a petition for rehearing arguing that the court’s ruling meant that minute orders would be treated differently from abstracts of judgment in applying the modified categorical approach. In an amended opinion, the court held that abstracts of judgment may not be used in applying the modified categorical approach. U.S. v. Snellenberger, 493 F.3d 1015 (9th Cir. 2007).
9th Circuit finds harmless district court’s mistaken conclusion that defendant admitted prior conviction. (770) At defendant’s sentencing hearing, the district court mistakenly noted that defendant had admitted one of his prior convictions. The Ninth Circuit held that the district court’s error did not show that it relied on materially incorrect information because the fact of defendant’s conviction was not in dispute and defendant had not contested it. U.S. v. Flores-Sanchez, 477 F.3d 1089 (9th Cir. 2007).
9th Circuit says government can seek enhancements that it thought were barred by Blakely. (770) Defendant’s sentencing hearing occurred between the Supreme Court’s decisions in Blakely and Booker. Because the government had not alleged two potential sentencing enhancements in the indictment, it asked the district court not to apply those enhancements. The Ninth Circuit vacated defendant’s sentence and remanded for resentencing. The court of appeals held that the government was not judicially estopped from asking for the sentencing enhancements that it had asked the court not to apply at the prior sentencing because the government never took the position that the enhancements did not apply. U.S. v. Lence, 466 F.3d 721 (9th Cir. 2006).
9th Circuit holds that testimonial hearsay may be used during sentencing. (770) In Crawford v. Washington, 541 U.S. 36 (2004), the Court held that a prior testimonial statement may not be admitted at a criminal trial unless the defendant had a prior opportunity to cross-examine the declarant. The Court also held that statements made during police interrogation are “testimonial.” At defendant’s sentencing, the district court increased defendant’s offense level based on a statement that defendant’s wife had made to a law enforcement officer. The Ninth Circuit held that Crawford does not apply to sentencing and thus that the use of defendant’s wife’s statement at sentencing did not violate the Sixth Amendment. U.S. v. Littlesun, 444 F.3d 1196 (9th Cir. 2006).
9th Circuit finds that government did not breach plea agreement by calling witness at court’s request during sentencing. (770) The defendant and the government entered into a plea agreement in which the parties agreed to recommend a specific guidelines calculation. At sentencing, the district court questioned whether the agreement failed to take into account an enhancement that should apply. The court directed the government to call a witness, and after hearing the prosecutor question the witness and questioning the witness itself, the court applied the enhancement. The Ninth Circuit held that the government had not breached the plea agreement by acceding to the court’s request to call the witness and in participating in examining the witness. U.S. v. Allen, 434 F.3d 1166 (9th Cir. 2006).
9th Circuit upholds curtailment of cross-examination at sentencing hearing. (770) At sentencing, the government called a witness to establish the amount of methamphetamine that should be attributed to defendant. Defendant sought to cross-examine the witness on each transaction in which he claimed defendant participated. The district court curtailed cross-examination when defense counsel repeatedly questioned the witness on the same details of the transactions in an effort to undercut the witness’s reliability. The Ninth Circuit held that the district court had not violated defendant’s due process rights by cutting off the questioning. U.S. v. Cantrell, 433 F.3d 1269 (9th Cir. 2006).
9th Circuit holds that court adequately justified consecutive sentences. (770) The district court ordered defendant’s sentence for federal firearms violations to run consecutively to the sentences on his state convictions for assault with a deadly weapon and drug offenses. The court explained that it thought defendant “need[ed] to get the lesson about recidivism” and that defendant may not have committed the instant offense if he had been “whacked right off the bat” when being sentenced on a prior state offense. The Ninth Circuit held that although the district court did not specifically justify the choice of consecutive sentences, it adequately discussed the factors on which the court relied to impose sentence. U.S. v. Fifield, 432 F.3d 1056 (9th Cir. 2005).
9th Circuit holds that defendant has right to testify about prior conviction at Three Strikes hearing. (770) At defendant’s California sentencing hearing, the State sought to have him sentenced under the Three Strikes law. One of defendant’s prior “strikes” was a 1976 conviction for assault with a deadly weapon. That conviction qualified as a strike only if defendant personally inflicted great bodily harm or used a weapon. In determining that the 1976 conviction counted as a strike, the trial court considered the record of the conviction as well as statements defendant made to the probation department. It refused to let defendant testify about the circumstances of the conviction. On federal habeas review, the Ninth Circuit held that the failure to allow defendant to testify violated due process, that the error was not harmless, and that defendant was entitled to be resentenced. Gill v. Ayers, 342 F.3d 911 (9th Cir. 2003).
9th Circuit finds failure to prove statute of prior conviction is plain error. (770) In finding that defendant had a prior crime of violence that required a sentence enhancement under § 2L1.2, the district court relied solely on the presentence report, which did not identify the statute defining the prior conviction. The Ninth Circuit held that the failure to provide documentary proof of the offense of conviction amounted to plain error requiring a remand. On remand, the court directed the district court to use the “categorical approach” used in other contexts to determine whether a prior conviction may be used to enhance a sentence. Under that approach, the court may look only to the statutory definition of the prior offense and not to the underlying facts of the defendant’s conviction. U.S. v. Pimentel-Flores, 339 F.3d 959 (9th Cir. 2003).
9th Circuit says that prior convictions may be proved by uncertified records. (770) The Ninth Circuit held that in determining whether defendant’s prior conviction constituted an aggravated felony for purposes of enhancing his sentence under 8 U.S.C. § 1326 and § 2L1.2(b)(1) (A), a court is not limited to certified copies of the defendant’s prior convictions and instead may rely on uncertified copies of those convictions. U.S. v. Chavaria-Angel, 323 F.3d 1172 (9th Cir. 2003).
9th Circuit finds sufficient evidence of prior conviction. (770) Defendant contended that the government had failed to prove beyond a reasonable doubt that he had a prior conviction that increased his statutory maximum sentence. Without considering whether proof beyond a reasonable doubt was required, the Ninth Circuit held that the government had proved the conviction by (1) a certified copy of the conviction in defendant’s name; (2) evidence that the birth date on the conviction matched the date on defendant’s passport; (3) evidence that defendant’s social security number was on the conviction; and (4) defendant’s admission that he had a prior narcotics conviction. U.S. v. Okafor, 285 F.3d 842 (9th Cir. 2002).
9th Circuit, en banc, holds court may not rely solely on PSR to decide if priors are violent felonies, but resentencing is on “open record.” (770) The PSR said that defendant was an Armed Career Criminal because he had prior convictions for burglary and attempted burglary. The PSR gave a description of these priors, but did not cite the specific statutes of conviction or include certified copies of the judgments. Sitting en banc, the Ninth Circuit held that in deciding whether a statute qualifies as a violent felony under the ACCA, the court may not rely “merely on the PSR,” but may use a “variety of sources, including the statutes of conviction themselves,” “copies of the judgments of conviction,” or “other documentary evidence that ‘clearly establishes’ the statutes under which [defendant] was convicted or the elements of those statutes.” The en banc court rejected the panel’s limitation on remand to “the record as it now stands.” Instead, the court held that “as a general matter, if a district court errs at sentencing, [it] will remand for resentencing on an open record – that is, without limitation on the evidence that the district court may consider.” The court noted, however, that it may limit the issues that a court considers on remand and that it may be appropriate to limit the evidence on remand “if the government engaged in deceptive, obstructive, or otherwise inappropriate conduct.” U.S. v. Matthews, 278 F.3d 880 (9th Cir. 2002) (en banc).
9th Circuit says government objection did not bar restitution from kickback payers and employee who received payments. (770) Defendants participated in a scheme to obtain subcontracts to repair U.S. Navy vessels by paying kickbacks to an employee of the prime contractor. Over the objection of defendants and the government, the district court allowed the prime contractor to present evidence at sentencing concerning its losses from the scheme. The court then ordered defendants to pay restitution to the prime contractor. The Ninth Circuit found that although the statutes authorizing the district court to order restitution, 18 U.S.C. §§ 3663 and 3664, contemplate that the government will prove the amount of restitution, the district court has discretion to identify victims and order restitution by a preponderance of the evidence. The district court did not violate separation of powers clause by refusing to follow the terms of a plea agreement between the government and the defendant that did not provide for restitution. The district court properly ordered the prime contractor’s employee (who received the kickbacks) to pay the prime contractor restitution in the amount of the kickbacks he received from two unindicted companies on the theory that the employee acted as the prime contractor’s agent in these transactions. U.S. v. Gamma Tech Indus. Inc., 265 F.3d 917 (9th Cir. 2001).
9th Circuit holds district court may rely on hearsay at sentencing if it bears indicia of reliability. (770) Affirming a role increase for being an organizer or leader, the Ninth Circuit held that § 6A1.3(a) permits a district court to rely on hearsay at sentencing if it bears “some minimal indicia of reliability.” The court found that the hearsay statements bore sufficient indicia of reliability because they were consistent with and corroborated each other. U.S. v. Berry, 258 F.3d 971 (9th Cir. 2001).
9th Circuit does not require express findings on reliability of co-defendants’ hearsay statements. (770) Defendant pleaded guilty to possession of stolen mail. Based on information obtained from co-defendants, the presentence report recommended a four-level enhancement for being the leader or organizer of criminal activity. The defendant countered with his own declaration stating that his co-defendants had actually organized the scheme, and he objected to the district court’s reliance on hearsay, but he did not request an evidentiary hearing. Relying on the information in the presentence report, the district court found that the defendant was an organizer or leader under § 3B1.1. On appeal, the Ninth Circuit found no violation of Rule 32(c)(1). Although the Ninth Circuit stated that it “encourage[s] and appreciate[s] express findings by a district court regarding the reliability of hearsay statements introduced at sentencing,” it held that such findings are not required “where the reliability of the hearsay statements is apparent from the record.” U.S. v. Berry, 258 F.3d 971 (9th Cir. 2001).
9th Circuit finds plain error in relying on hearsay statements for findings by a preponderance. (770) 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 upholds relying on testimony about tape recording rather than the recording itself. (770) At sentencing, a police officer testified that Strahan, a target of the methamphetamine investigation who had agreed to cooperate with law enforcement officers, gave him a micro-cassette from a telephone answering machine. He testified that on the recording, defendant threatened to harm Strahan for cooperating with the police. The officer did not produce the tape at the hearing but testified that when he listened to the tape he recognized defendant’s voice. He said the tape was “very menacing, very profane” and that he heard defendant call Strahan a “narc” and threatened to “thrash [Strahan] within an inch of [his] life.” The Ninth Circuit found no error in relying on the officer’s testimony about the tape recording rather than the recording itself. Under the guidelines the court may consider relevant information without regard to the rules of evidence, if it has sufficient indicia of reliability. See § 6A1.3. The officer’s testimony about what he heard defendant say on the tape was not hearsay because it was not offered to prove the truth of the matter asserted but merely to prove that defendant made the threatening statements. The testimony was not unreliable and defendant had an opportunity to cross-examine the officer. U.S. v. Scheele, 231 F.3d 492 (9th Cir. 2000).
9th Circuit says hearsay may be considered at sentencing but must be corroborated. (770) A sentencing judge is generally not restricted to evidence that would be admissible at trial. However, “inadmissible evidence cannot be considered [at sentencing] if it lacks sufficient indicia of reliability to support its probable accuracy.” U.S. v. Hopper, 27 F.3d 378, 382 (9th Cir. 1994). The Ninth Circuit held that this requirement means there must be extrinsic corroborating evidence that supports the hearsay statement. In this case, the district court did not rely solely on the hearsay statement in concluding that there were five participants in the offense. Rather, it also relied on the testimony at trial, and the Ninth Circuit held that the trial testimony supported the conclusion that there were five or more participants. “Thus, although [the witness’s] hearsay statement was not corroborated, that statement was a superfluous basis for the district court’s ultimate holding.” U.S. v. Egge, 223 F.3d 1128 (9th Cir. 2000).
9th Circuit says jury and judge were entitled to find some testimony credible and some not. (770) Defendant argued that two of the witnesses were so unreliable that the jury was compelled to disbelieve their testimony as a matter of law. The Ninth Circuit rejected the argument, stating that although both witnesses had criminal records “long enough to qualify them for black sheep status in most families,” the jury was entitled to find their testimony credible. Moreover, the judge’s decision at sentencing to discredit a portion of one of the witness’s testimony did not make the jury’s decision to believe or portions of her testimony irrational, “particularly where the district court credited portions of the testimony itself.” U.S. v. Egge, 223 F.3d 1128 (9th Cir. 2000).
9th Circuit reaffirms that court may rely on unchallenged PSR at sentencing. (770) In U.S. v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998), the Ninth Circuit held that a district court may rely on an unchallenged PSR at sentencing to find by a preponderance of the evidence that the facts underlying the sentencing enhancement have been established. The sentencing guidelines also allow judges to rely on any information “so long as it has sufficient indicia of reliability to support its probable accuracy.” Id. at 894-95. In this case, the court found “no discernible reason why the officer who prepared the PSR should be dishonest, and the report listed the sources of the probation officer’s information: computer checks from the FBI, CII, Bureau of Prisons, INS and other state and federal government agencies. The fact that the information in the PSR resulted in a severe 16-level sentence enhancement did not justify a different rule. U.S. v. Romero-Rendon, 220 F.3d 1159 (9th Cir. 2000).
9th Circuit upholds reliance on hearsay and unchallenged statements in PSR. (770) “Federal law is clear that a judge may consider hearsay information in sentencing a defendant.” U.S. v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988). Although the use of hearsay evidence may “violate[ ] due process . . . if the sentencing judge relied upon information which is materially false or unreliable,” the defendant here did not object to any of the facts set forth in the PSR regarding the offenses he allegedly committed while on escape status. Under U.S. v. Romero-Rendon, 220 F.3d 1159 (9th Cir. 2000), a sentencing court may rely on an unchallenged PSR to find that the facts underlying a sentence enhancement have been established by a preponderance of the evidence. U.S. v. Charlesworth, 217 F.3d 1155 (9th Cir. 2000).
9th Circuit reverses where it was unclear that court found defendant made threats. (770) The presentence report said defendant threatened to shoot the bank tellers. Defendant’s objection was unclear whether he was arguing that the threats were never made, or that the threats simply did not constitute a “express threat of death.” At the sentencing hearing itself, however, he unequivocally denied making the statements. In response, the prosecutor simply argued that the statements constituted an express threat of death. The district court said that it agreed with the prosecutor’s “analysis concerning the threats.” On appeal, the Ninth Circuit reversed, holding that the district court failed to comply with Rule 32(c)(1), Fed. R. Crim. P., because it was unclear whether the district court ever understood that there was a dispute about whether the statements were in fact made. The court emphasized that on remand the district court could rely on the teller’s statements as recounted in the PSR as long as that information bears “some minimal indicia of reliability.” Contrary to defendant’s argument, “he has no right to an evidentiary hearing regarding the dispute over attribution of the statements.” Under Rule 32(c)(1) the court is left to its “discretion” whether it “permit[s] the parties to introduce testimony or other evidence on the objections.” Fed. R. Crim. P. 32(c)(1). U.S. v. Houston, 217 F.3d 1204 (9th Cir. 2000).
9th Circuit reverses exclusion of marijuana plants to punish government misconduct. (770) In a 2-1 opinion, the Ninth Circuit reversed the district court’s exclusion of 2,200 marijuana plants, which reduced the mandatory minimum sentence from ten years to five years. Relying on a leading sentencing treatise, the majority held that the court lacked the authority to refuse to impose the ten-year mandatory minimum. In pleading guilty, the defendants acknowledged responsibility for 1,000-4,000 plants. The majority found no case sanctioning the suppression of lawfully seized evidence at sentencing as a remedy for government misconduct. And it found no authority for applying the exclusionary rule to sentencing proceedings. Finally, “the Koon rationale for departure from a guideline range, see Koon v. U.S., 518 U.S. 81 (1996), has no application in a statutory minimum case.” Judge Reinhardt dissented, arguing that the district court had discretion to exclude the 2,200 marijuana plants at sentencing as a sanction for government misconduct. U.S. v. Haynes, 216 F.3d 789 (9th Cir. 2000).
9th Circuit says district court may consider evidence ruled inadmissible at trial as relevant conduct. (770) At sentencing, the district court considered evidence that defendant knew methamphetamine was being manufactured on his property and held him responsible for this relevant conduct under § 1B1.3. The evidence had been excluded at trial, but the Ninth Circuit held that a district court may consider evidence ruled inadmissible at trial in determining relevant conduct at sentencing. The evidence was supported by a witness who was now cooperating with the government, who testified that he had worked in the defendant’s laboratory. U.S. v. Mattarolo, 209 F.3d 1153 (9th Cir. 1999).
9th Circuit includes sixty-three illegally obtained marijuana plants as relevant conduct. (770) The district court ruled before trial that sixty-three marijuana plants found in defendant’s basement were illegally obtained in a warrantless seizure. Nevertheless, the court counted these sixty-three plants as relevant conduct at sentencing. On appeal, the Ninth Circuit affirmed, relying on U.S. v. Kim, 25 F.3d 1426 (9th Cir. 1994), which held that illegally obtained evidence must be included as relevant conduct at sentencing. However Kim reserved the question of whether there is an exception to the rule where the use of the illegally seized evidence would provide a substantial incentive for unconstitutional searches and seizures, Verdugo v. U.S., 402 F.2d 599 (9th Cir. 1968) (objective test) or where the officers obtained evidence expressly to enhance a sentence, U.S. v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992). In this case, defendants failed to satisfy either the “objective” or “subjective” exceptions, because at the time of the search it was not clear that sufficient admissible evidence existed to convict defendants on any drug related charge and therefore there was no incentive to obtain evidence illegally for sentencing. U.S. v. McIver, 186 F.3d 1119 (9th Cir. 1999).
9th Circuit reverses revocation of supervised release based on unreliable hearsay. (770) A person charged with violating supervised release is entitled to confront and cross-examine adverse witnesses at a revocation hearing unless the government shows good cause for not producing the witnesses. See Morrissey v. Brewer, 408 U.S. 471 (1972) and Fed. R. Crim. P. 32.1(a)(2)(B). Here, the district court failed to weigh the releasee’s interest in his constitutionally guaranteed right to confrontation against the government’s good cause for denying it. See U.S. v. Walker, 117 F.3d 417, 420 (9th Cir. 1997). The weight to be given the right to confrontation in a particular case depends on two primary factors: the importance of the hearsay evidence to the court’s ultimate finding and the nature of the facts to be proven by the hearsay evidence. U.S. v. Martin, 984 F.2d 308, 311 (9th Cir. 1993). In this case, the hearsay testimony was indisputably important to the finding of the violation. Defendant was charged with using his girlfriend’s credit cards and checks without her permission. Although government counsel asserted that the girlfriend refused to appear at the hearing because she was afraid of defendant, the government offered no evidence of any such fear. Moreover, the corroborative evidence noted by the government was insufficient. U.S. v. Comito, 177 F.3d 1166 (9th Cir. 1999).
9th Circuit says court did not rely on incorrect information from the probation officer. (770) The sentencing form attached to the final judgment erroneously said the imprisonment range for an offense level of 12 is up to six months, whereas the actual range is 10-16 months. The form also said that the maximum supervised release period was six years when it was actually only one year. However, the Ninth Circuit found that these errors were clerical and did not play a role in defendant’s sentencing. At the sentencing hearing, the district court correctly stated the guideline range, and only imposed a sentence of six months in custody and six months of supervised release. Moreover, although the probation officer initially said the minimum sentence had to be served in prison, she later corrected herself by saying that one-half of the minimum term could be served in imprisonment. The district court did not rely on the incorrect information. U.S. v. Hanousek, 176 F.3d 1116 (9th Cir. 1999).
9th Circuit reverses where court “probably relied” on unreliable double hearsay. (770) The probation officer relied on a co-defendant’s unreliable double hearsay statement in recommending an upward role adjustment and rejecting a mitigating role adjustment. The defense objected to the use of the unreliable hearsay but the district court followed the probation officer’s recommendations. On appeal, the government conceded that the hearsay was unreliable, but argued that because the judge did not expressly state he was relying on the hearsay, it was not “demonstrably” made the basis for the sentence. The Ninth Circuit rejected the argument, holding that reliance on impermissible information is a due process violation and in this case the sentencing judge “probably did rely on the unreliable hearsay.” Accordingly, the sentence was vacated. U.S. v. Corral, 172 F.3d 714 (9th Cir. 1999).
9th Circuit relies on computerized criminal history where hard copy had been purged. (770) The probation report included two prior misdemeanor sentences for which there were no accompanying hard copy records because the records had been purged. The probation officer had to rely on a computerized criminal history which was matched to defendant by a fingerprint identification. The Ninth Circuit found this information sufficiently reliable, particularly because defendant never denied he was convicted of these misdemeanors. The Ninth Circuit has previously held that an investigative report prepared by secret service agents is admissible at sentencing. See U.S. v. Burns, 894 F.2d 334, 336-37 (9th Cir. 1990). Other circuits are in accord. See U.S. v. Aymelek, 926 F.2d 64, 68 (1st Cir. 1991) (detention officer’s affidavit); U.S. v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir. 1989) (probation officer’s testimony). U.S. v. Marin-Cuevas, 147 F.3d 889 (9th Cir. 1998).
9th Circuit says information in Tribal Court file was sufficiently reliable for departure. (770) Information is reliable if it comes from percipient witnesses during trial or from evidence presented at a sentencing hearing. U.S. v. Ponce, 51 F.3d 820, 828 (9th Cir. 1995). Although a “prior arrest record” by itself is not reliable, a “police record”¾which “covers all aspects of a prosecuted offense” and “detail[s] [ ] underlying conduct during [an] offense”¾is reliable information. U.S. v. Durham, 995 F.2d 936, 938 & n.1 (9th Cir. 1993). In this case, the court’s data on the assault charge came from a detailed Tribal Court file. Indeed, it appeared that defendant was convicted on the assault charge, but was not sentenced pending disposition of the present charges. Defendant did not object to the reliability of this information at sentencing. U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit upholds reliance on hearsay corroborated by defendant’s own admissions. (770) At sentencing, the district court relied on hearsay statements made to the probation officer by the assault victim. In addition, however, the court found that because of defendant’s own admissions to the police, it did “not need to rely upon” the victim’s statements. On appeal, the Ninth Circuit found no error. Even though the defendant was denied the opportunity to question the victim about her statements, the district court’s finding that defendant’s own statement supported its findings made a remand unnecessary. U.S. v. Chee, 110 F.3d 1489 (9th Cir. 1997).
9th Circuit upholds use of hearsay to determine number of guns defendant possessed. (770) Defendant challenged the district judge’s use of hearsay to determine how many guns he possessed while he was out of prison. Relying on U.S. v. Sustaita, 1 F.3d 950, 952 (9th Cir. 1993), the Ninth Circuit held that the district judge was within her discretion in using hearsay evidence in sentencing. U.S. v. Casterline, 103 F.3d 76 (9th Cir. 1996).
9th Circuit suggests that court could rely on proffer of expert on Nepalese culture. (770) The court denied a defense motion to present expert testimony about defendant’s religious beliefs and the culture of Nepal, including lack of knowledge of Western culture or of drug trafficking among the Nepalese, and neighborly obligation in Sherpa culture. The expert would also have corroborated defendant’s testimony that the small spoon he was carrying was a “naptul” a device for cleaning the ears, and not a narcotics spoon as the government alleged. In a footnote, the Ninth Circuit noted that while the court’s decision to exclude the expert testimony was not an abuse of discretion, “it is clear that the district judge was privy to information not shared by the jury that permitted him to assess the case against [defendant] differently for sentencing purposes.” Thus, even though the jury found that defendant knew he was carrying drugs, the record supported the district court’s conclusion that defendant “was culturally sheltered in such a way as to prevent his awareness of the questionable nature of his task.” U.S. v. Sherpa, 97 F.3d 1239 (9th Cir. 1996).
9th Circuit reverses district court’s drug quantity finding as clearly erroneous. (770) Two defendants were arrested in a hotel room. One had 7.8 grams of heroin in a condom in his alimentary canal, and the room contained 46 empty condoms that had been passed through some person’s digestive system. The second defendant told the officers that it had taken the first defendant two days to swallow the contents of his alimentary canal. Nevertheless, the district court based the sentence on only 7.8 grams of heroin. The government appealed, and the Ninth Circuit reversed, finding the district court’s factual finding was clearly erroneous. The second defendant’s statement was substantial evidence that more than 7.8 grams of heroin was involved. This could be used against the other defendant because it was (1) reliable, (2) against the second defendant’s interest, and (3) corroborated by the physical evidence. “Some substantial volume of heroin above 7.8 grams would appear to be unavoidable, given [the second defendant’s] statements to the effect that he had supervised two days of swallowing and the collection of 46 or 47 condoms containing the merchandise.” Judge Pregerson dissented. U.S. v. Asagba, 77 F.3d 324 (9th Cir. 1996).
9th Circuit says state immunity for murder did not prevent federal judge from departing upward based on it. (770) The defendants were given transactional immunity for all offense related an apparent homicide. In return, one defendant led police to the body. An investigation indicated that the defendants were responsible for the murder. Thereafter, defendants were convicted in federal court of attempting to rob an armored truck. At sentencing the district court departed upward on the ground that their criminal history categories did not adequately reflect the seriousness of their past criminal conduct under § 4A1.3 because their role in the homicide was not taken into account. The Ninth Circuit originally reversed, but after reconsideration, that opinion was withdrawn and a new opinion was filed upholding the departure. The court found inapplicable Murphy v. Waterfront Commission, 378 U.S. 52, 79 (1964), because the immunity agreement did not compel self-incrimination. U.S. v. Camp, 72 F.3d 759 (9th Cir. 1995).
9th Circuit upholds basing conspirator’s sentence on quantities in drug ledger. (770) The drug ledgers listed 59 kilograms of cocaine, but only 71 kilograms was seized. Defendant argued that it was error for the court to rely on the ledgers “some of which wee never identified as to authorship, and none of which directly implicated [defendant] other than by supposition.” Judges Hawkins, Browning and D.W. Nelson said defendant’s argument had some “emotional appeal” because his codefendant was sentenced only for 71 kilograms. But the court nevertheless found the ledgers were sufficiently reliable to uphold the sentence. U.S. v. Gil, 58 F.3d 1414 (9th Cir. 1995).
9th Circuit says post-arrest hearsay statements of accomplice were not reliable. (770) During negotiations with the government, defendant’s accomplice said that in one bank robbery both he and defendant carried guns, and in another, only defendant was armed. Based on the accomplice’s statement, the PSR concluded there was a “possibility” that defendant carried a gun during some of the robberies. Both defendant and the government objected, but the district judge found a probability” that defendant had a gun. On appeal, the Ninth Circuit reversed, holding that the accomplice’s post-arrest hearsay statement was not sufficiently reliable. It was not corroborated, and bore no indicia of reliability. Therefore the upward departure based on the gun was improper. U.S. v. Huckins, 53 F.3d. 276 (9th Cir. 1995).
9th Circuit says hearsay statements must be corroborated by extrinsic evidence. (770) A district court’s evaluation of the reliability of evidence is reviewed for an abuse of discretion. In this case, as to defendants Ponce and Monroy, the only evidence of their prior marijuana trafficking was the uncorroborated hearsay statements of a codefendant. “While hearsay statements may be considered at sentencing, due process requires that such statements be corroborated by extrinsic evidence.” U.S. v. Petty, 982 F.2d 1365, 1369 (9th Cir.), amended, 992 F.2d 887, 992 F.2d 1015 (1993). As to one defendant, the error was harmless because their was no doubt that the district court would have imposed a life sentence anyway. The other defendant’s sentence was reversed. U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).
9th Circuit finds co-defendant’s unsupported allegations violated due process. (770) The Ninth Circuit found that the district court’s reliance on materially false or unreliable information at sentencing violated defendant’s due process rights. The district court discounted favorable letters written by attorneys on defendant’s behalf based on a single uncorroborated allegation by the co-defendant that defendant gave marijuana to law students and lawyers at a party. It allowed the co-defendant’s own attorney to examine him at defendant’s sentencing hearing while allowing the co-defendant to invoke the Fifth Amendment 38 times during the government’s cross-examination. It found that the co-defendant benefited society by coming forward, even though defendant was the first to come forward and the co-defendant, unlike defendant, never cooperated with the prosecution. The co-defendant presumably wanted revenge after defendant fingered him and his brother in the marijuana growing operation and received a lighter sentence as a result of his cooperation with the court. U.S. v. Hanna, 49 F.3d 572 (9th Cir. 1995).
9th Circuit relies on double hearsay in finding obstruction. (770) The district court’s finding that defendant obstructed justice was based on an affidavit from codefendant’s counsel stating that defendant had attempted to dissuade the codefendant from cooperating, and that the codefendant feared retaliation from the defendant and had absconded. The Ninth Circuit found no error in relying on this double hearsay, because it bore “sufficient indicia of reliability to support its probable accuracy.” The codefendant made the statement in an effort to obtain protection from the government as part of his plea agreement. There is no requirement that the affidavit be corroborated. U.S. v. Alonso, 48 F.3d 1536 (9th Cir. 1995).
9th Circuit applies abuse of discretion standard to decision to consider particular evidence. (770) Reaffirming its ruling in U.S. v. Petty, 982 F.2d 1365, 1369 (9th Cir.), amended on other grounds, 992 F.2d 1015 (1993), cert. denied, 114 S.Ct. 683 (1994), the Ninth Circuit held that “[t]he district court’s determination whether a particular item of evidence is sufficiently reliable to be considered at sentencing is reviewed under an abuse of discretion standard.” U.S. v. Pinto, 48 F.3d 384 (9th Cir. 1995).
9th Circuit reverses where judge relied on double hearsay and refused to consider contrary evidence. (770) In a letter to the judge at the first sentencing, defendant’s ex-wife wrote that defendant’s four-year-old son told her that defendant had made fireworks in his home in the presence of the son. Based on these double hearsay statements, the judge enhanced defendant’s sentence by three levels for risking public safety under § 2K2.14. The defendant vainly attempted to induce the court to consider a letter from county juvenile court service officers stating that defendant’s ex-wife was “erratic, unstable and inconsistent in her parenting abilities,” and that “she would stop at nothing to ensure that [defendant] be erased from any scenario involving their mutual child.” The 9th Circuit found that district court’s wholesale rejection of the defendant’s statement that he never made fireworks in the presence of his son appeared to be “arbitrary.” The sentence was vacated and the case was remanded to a different judge. U.S. v. Williams, 41 F.3d 496 (9th Cir. 1994).
9th Circuit upholds sentence for conspiracy despite acquittal of one co-conspirator. (770) Defendant was convicted of conspiracy and murder for hire. The person who allegedly hired him was acquitted, but defendant and another person who did the actual killing were convicted and sentenced for conspiracy. On appeal, defendant argued that the agreement between himself and the killer was not proved and the jury’s acquittal of his alleged employer precluded a finding that the alleged employer was involved. The 9th Circuit rejected both arguments, finding no clear error in the district court’s finding that defendant conspired with both. The alleged employer’s acquittal did not prevent the district court from finding, by a preponderance of the evidence, that the employer was involved. Moreover, the indictment charged that “others unknown” were involved in the conspiracy, and it was clear that some other person was involved, even if the alleged employer was not. U.S. v. Dota, 33 F.3d 1179 (9th Cir. 1994).
9th Circuit holds that ex parte communications by probation officer with court are proper. (770) In a footnote, the 9th Circuit reiterated its holding in U.S. v. Belgard, 894 F.2d 1092, 1099 n.7 (9th Cir. 1990), that “ex parte communications of the probation officer with the court are proper.” U.S. v. Sifuentez, 30 F.3d 1047 (9th Cir. 1994).
9th Circuit upholds reliance on unsworn statements to find obstruction of justice. (770) The district court did not indicate whether it relied on the unsworn statements to conclude that defendant had obstructed justice. However, the 9th Circuit said that even if the court considered the unsworn statements, “it did not err.” Defendant also admitted his obstructive conduct by signing a plea memorandum which expressly stated that he burned evidence and attempted to buy false alibis. In determining the facts at sentencing, judges are not restricted to evidence that would be admissible at trial. U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).
9th Circuit allows illegally-obtained evidence at sentencing unless it was obtained to enhance sentence. (770) Relying on pre-guidelines precedent, the 9th Circuit held that illegally obtained evidence may be relied on at sentencing unless law enforcement authorities seize it for the express purpose of enhancing the sentence of a suspect already under indictment or investigation. This is in accord with other circuits. See U.S. v. Arango, 966 F.2d 64, 67 (2nd Cir. 1992); U.S. v. McCrory, 930 F.2d 63, 68-69 (D.C. Cir. 1991); see also U.S. v. Jewel, 947 F.2d 224, 236, n.18 (7th Cir. 1991). The court noted that in this case the DEA’s discovery of additional quantities of methamphetamine in defendant’s hotel room was “more by chance than by design.” The illegal search and seizure “was quite plausibly motivated by a desire to apprehend [defendant] outstripping any incentive to compound the evidence against him.” Judge Schroeder concurred separately. U.S. v. Kim, 25 F.3d 1426 (9th Cir. 1994).
9th Circuit says claim to mental impairment must be viewed with “lenity.” (770) The 9th Circuit said that in resolving disputed facts concerning mental impairment the court’s inquiry into the defendant’s mental condition and the circumstances of the offense must be undertaken “with a view to lenity, as section 5K2.13 implicitly recommends.” The defendant bears the burden of proving the appropriateness of a downward departure, but it is unnecessary for a defendant who requests a departure under section 5K2.13 to undergo a mental health examination of the type used in determining guilt or innocence. The district court must tailor its fact-finding process to “the nature of the dispute, its relevance to the sentencing determination, and applicable caselaw.” Judge Canby concurred in the result. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).
9th Circuit sustains reliance on hearsay at sentencing. (770) Defendant argued that the sentencing judge’s reliance on hearsay testimony violated his confrontation and due process rights. The Ninth Circuit rejected the challenges, finding that the use of hearsay testimony did not violate due process. Here, the district court followed the procedures of Fed. R. Crim. P. 32(c)(3)(D) by making findings on disputed matters. The district court did not rely on materially false or unreliable information. U.S. v. Sustaita, 1 F.3d 950 (9th Cir. 1993).
9th Circuit finds that transcript of interview with victim was reliable. (770) A defendant challenging information used in sentencing must show that such information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence. Here, the defendant argued that one of the transcripts of the sexual abuse victim’s interview with two social workers omitted some questions and answers and reflected the biases of the social worker who prepared it. The 9th Circuit rejected the argument, ruling that the evidence suggested there were no material errors or omissions. U.S. v. Fulton, 987 F.2d 631 (9th Cir. 1993).
9th Circuit says sentence was not based on defendant’s refusal to testify against himself. (770) The petitioner in this habeas case argued that the state judge improperly relied on the fact that petitioner had not identified the location of the victim’s body until several weeks into the trial. He argued that use of this information at sentencing punished him for refusing to testify against his own interests in violation of the 5th and 14th Amendment. The 9th Circuit rejected the argument, noting that a criminal defendant is obliged to assist the authorities “[u]nless his silence is protected by the privilege against self incrimination.” Roberts v. U.S., 445 U.S. 552, 558 (1980). Here the petitioner did not invoke the 5th Amendment privilege until he raised it on appeal. The 9th Circuit held that the sentencing court was simply suggesting that petitioner could have made known the location of the body even before he was apprehended by the FBI, in a way that would not have incriminated him. Therefore his sentence was not based on his refusal to testify against his own interests. Dallas v. Arave, 984 F.2d 292 (9th Cir. 1993).
9th Circuit says judge may consider evidence beyond what the jury considered. (770) In this non-guidelines habeas corpus case, the 9th Circuit held that the due process clause does not restrict the sentencing judge to the information received by the jury in open court. Williams v. New York, 337 U.S. 241, 252 (1949). Nor does it prevent the sentencing court from taking its own view of the evidence presented in open court. See, U.S. v. Grayson, 438 U.S. 41, 53-54 (1978). A sentencing judge is free to determine whether the defendant’s testimony contained willful and material falsehoods and consider such falsehoods “for whatever light [they] may shed on the sentencing decision.” Id. at 53. Here, the sentence imposed and the factual findings made by the sentencing judge were not inconsistent with petitioner’s acquittal on first degree murder charges. His sentence was affirmed. Dallas v. Arave, 984 F.2d 292 (9th Cir. 1993).
9th Circuit relies on sworn post-arrest admissions of unavailable coconspirator in sentencing others. (770) As part of plea negotiations, the kingpin of a cocaine conspiracy proffered a statement under oath to the government. Thereafter, the negotiations failed, and he and his coconspirators were convicted. At sentencing, the kingpin not only refused to testify, but made another sworn statement casting doubt on the accuracy of his first statement. Nevertheless, the court considered his statement in sentencing the coconspirators. On appeal, the 9th Circuit reviewed the law in other circuits, and concluded that the confrontation clause does not preclude a court from considering hearsay evidence at sentencing. Although the kingpin’s statement was presumptively unreliable, “the presumption of its unreliability was rebutted by extrinsic corroborating evidence, which the district court properly considered.” Judge Noonan dissented at length. U.S. v. Petty, 982 F.2d 1365 (9th Cir. 1992), amended, 992 F.2d 1015 (1993).
9th Circuit holds that not all procedural protections available at trial are necessary at sentencing. (770) Defendant argued that his rights were violated when the district court permitted the government to prove that he had committed an aggravated assault by calling witnesses at the sentencing hearing. The 9th Circuit rejected the argument, noting that “not all of the procedural protections available in the guilt phase of a trial are necessary components of a sentencing hearing.” Moreover, defendant did not object when the government offered to prove the assault by calling witnesses. The defense thoroughly cross-examined the witnesses and refused the opportunity to call witnesses for the defense. Defense counsel “was not prevented in any way from acting as an effective advocate.” U.S. v. Humphries, 961 F.2d 1421 (9th Cir. 1992).
9th Circuit holds that plea bargain prevents judge from considering dismissed or uncharged counts in sentencing. (770) Relying on its amended opinion in U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990), the 9th Circuit reiterated that under guideline § 6B1.2, “a district judge may not first accept a plea bargain and then consider dismissed charges in calculating defendant’s sentence.” The court also rejected the government’s argument that the sentence could be based on uncharged bank robberies. Although guideline § 1B1.4 permits a court to consider “any information” unless otherwise prohibited by law, the limitations imposed on departures by guidelines § 5K2.0 “also bar an upward departure on account of the eight [robberies] either not charged or dismissed as a result of the plea bargain.” U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991).
9th Circuit says that defendant must show that court actually relied on false information in sentencing. (770) Defendant argued that the district court “may have relied” on the inaccurate information in imposing the maximum sentence within the guideline range. However, relying on U.S. v. Columbus, 881 F.2d 785, 787 (9th Cir. 1989), the 9th Circuit held that this was insufficient. The defendant must show that the court “did rely on the challenged information in imposing his sentence.” Since he failed to object in the district court, he could not rely on Fed. R. Crim. P. 32 which requires the sentencing court to make factual findings concerning disputed statements in the presentence report or to make clear on the record that the disputed facts were not taken into account in the sentencing. U.S. v. Caperell, 938 F.2d 975 (9th Cir. 1991).
9th Circuit upholds finding of quantity of drugs even though jury did not determine the quantity. (770) Relying on U.S. v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989), the 9th Circuit held that the sentencing judge’s determination of quantity of drugs was not affected by the fact (1) that the jury did not determine the quantity of drugs involved in the offense or (2) that it was possible that the jury had found that less drugs than the quantity required for the enhanced sentence had been involved. The amount required to enhance had been alleged in the indictment and the evidence showed that the defendant was in constructive possession of a sufficient quantity to warrant the enhanced penalty. U.S. v. Powell, 932 F.2d 133 (9th Cir. 1991).
9th Circuit holds that destruction of chemicals did not prejudice defendant’s sentence. (770) Chemicals seized from defendant’s labs were destroyed before he or the government had a chance to weigh them. Defendant argued that this denied him due process at sentencing because he had no way of disproving the amount the government claimed it found. Because “sentencing courts are not limited to evidence that would be admissible at trial” the 9th Circuit said it was “uncertain” whether the suppresion rule of U.S. v. Loud Hawk, 628 F.2d 1139, 1151 (9th Cir. 1979) (en banc) applies in the sentencing context. Assuming that it was applicable, however, the court found no evidence of government misconduct and that defendant failed to show any prejudice. “He had an opportunity at the sentencing hearing to present his own experts, to refute the estimated capacity of the lab based on the physical characteristics and equipment and to cross examine the government witnesses.” U.S. v. Lillard, 929 F.2d 500 (9th Cir. 1991).
9th Circuit says court should not accept plea bargain and then later consider dismissed charges in sentencing. (770) Guideline § 6B1.2(a) (policy statement) says that where a plea agreement includes the dismissal of any charges, the court may accept the agreement if it determines that the “remaining charges adequately reflect the seriousness of the actual offense behavior.” The 9th Circuit stated that the “plain implication of this section is that if the sentencing court believes that the remaining charges do not adequately reflect the seriousness of the defendant’s behavior, the court should not accept the plea agreement.” Accordingly the court held that “the sentencing court should reject a plea bargain that does not reflect the seriousness of the defendant’s behavior and should not accept a plea bargain and then later count dismissed charges in calculating the defendant’s sentence.” The court acknowledged that its holding was in conflict with two other circuits, U.S. v. Kim, 896 F.2d 678, 684 (2nd Cir. 1990), and U.S. v. Zamarripa, 905 F.2d 337, 341 (10th Cir. 1990), but said that its holding was “faithful not only to the guidelines but to the fundamental concept of plea bargaining.” “To let the defendant pled to certain charges and then be penalized on charges that have, by agreement, been dismissed is not only unfair; it violates the spirit if not the letter of the bargain.” U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990).
9th Circuit rules that sentencing court did not rely on information which defendant claimed was inaccurate and improper. (770) The 9th Circuit stated that “consideration of evidence outside the record of conviction for sentencing purposes is reviewed for an abuse of discretion.” Reliance on materially false or unreliable information is an abuse of discretion. However, if the court did not rely on the inaccurate information, the sentence will be affirmed. Here the district court clearly stated that it was not considering the prosecution’s version of the presentence report. The court also indicated that it would not consider the allegations of drug trafficking in this tax case. These statements were sufficient to satisfy the substantive requirements of Rule 32 Fed. R. Crim. P. U.S. v. Ayers, 924 F.2d 1468 (9th Cir. 1991).
9th Circuit reverses sentence based on appellant’s statements made under assurance of confidentiality. (770) During a state-ordered psychiatric evaluation, appellant made incriminating remarks. The Oregon statute provided that “[n]o statement made by a defendant under this section “shall be used against the defendant in any civil proceeding or in any other criminal proceeding.” Nevertheless, the district court concluded that it could consider the evaluation “as it deems fit.” The 9th Circuit reversed, holding that the district court’s use of the Oregon psychiatric evaluation violated appellant’s “constitutional privilege not to have incriminating statements used against him without his consent.” U.S. v. Harrington, 923 F.2d 1371 (9th Cir. 1991).
9th Circuit holds that judge may consider out-of-court observations of the defendant in sentencing. (770) At sentencing, the judge noted that the defendant had testified in a “mild, meek voice like Mr. Milktoast.” The judge then said he had seen the defendant out in the hall with some “repeater defendants” who were waiting outside another courtroom, and defendant “had the voice of a platoon sergeant in directing them.” The judge said “I think its something I can consider, just like I consider all the information from the presentence report.” The 9th Circuit upheld the judge’s reliance on the out-of-court observations, stating that while judges “as a general matter should not be overly influenced by out-of-court observations in making sentencing decisions, we hold the present circumstances do not give rise to a Sixth Amendment violation.” Taylor v. Kincheloe, 920 F.2d 599 (9th Cir. 1990).
9th Circuit upholds inference of drug activity in sentencing given defendant’s failure to object. (770) After defendant’s conviction for evading reporting requirements regarding currency transactions, the sentencing judge speculated that defendant had been involved in drug-related activities. Defendant argued that the judge should not have relied on that inference in sentencing because “there was no evidence of drug-dealing in the record.” Judges Noonan, Browning, and Fernandez disagreed. The court distinguished prior Ninth Circuit precedent, in which defense counsel objected to the sentencing judge’s characterization of the defendant as a drug trafficker. Because defendant did not object, he could not appeal on this ground. U.S. v. Hoyland, 914 F.2d 1125 (9th Cir. 1990).
9th Circuit permits reliance on evidence introduced in accomplice’s separate trial. (770) In recommending upward adjustments for obstruction of justice and more than minimal planning, the presentence report relied on evidence introduced at the separate trial of defendant’s accomplice. Defendant objected to reliance on such testimony, since defendant had not had the opportunity to cross-examine or confront the witnesses in his accomplice’s trial. The 9th Circuit rejected defendant’s argument, noting that the presentence report put defendant on notice as to which facts were relied upon and gave defendant an opportunity to contest those facts. The guidelines do not require that sentencing decisions be based on facts admissible at trial so long as they have sufficient indicia of reliability to support their probable accuracy. The court found pre-guidelines Supreme Court cases to support the conclusion that defendant’s rights had not been violated. U.S. v. Notrangelo, 909 F.2d 363 (9th Cir. 1990).
9th Circuit permits consideration of victim impact statement in noncapital sentencing. (770) In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court barred consideration of victim impact statements by a jury during the capital punishment phase of a state murder trial. Relying on Booth, defendant argued that the sentencing judge violated the Eighth Amendment in considering a victim impact statement in sentencing defendant for bank robbery. In a per curiam opinion, the 9th Circuit disagreed, holding Booth applicable only to capital punishment cases and noting that Fed. R. Crim. P. 32 requires inclusion of victim impact information in the presentence report. U.S. v. Santana, 908 F.2d 506 (9th Cir. 1990).
9th Circuit sees no plain error in judge’s reliance on nonrecord characteristics of typical drug deal. (770) In concluding that defendant was the leader in a drug transaction, the sentencing judge found that defendant’s efforts to avoid being personally present at the deal’s consummation “is typical of leaders.” Though defendant failed to object at sentencing, he appealed on the ground that the judge employed a fact not in evidence — the typical conduct of leaders of drug transactions. Judges Wallace, Alarcon, and Leavy found no plain error. Even if defendant had objected, he would have had to show that the information used (1) was false or unreliable and (2) was demonstrably the basis for the sentence. Because defendant made no showing that the judge’s information was false or unreliable, he did not establish any error. U.S. v. Carvajal, 905 F.2d 1292 (9th Cir. 1990).
9th Circuit finds trial judges’ findings of fact unsupported by the record. (770) The district court made written findings that the defendant was involved in approximately twelve cocaine sales, based upon the government informant’s “trial testimony.” Because the government informant testified at trial as to only approximately six to twelve cocaine sales, Judges Fletcher, Browning and Schroeder held that the district court “clearly erred” in finding that the defendant was involved in twenty sales based on the informant’s trial testimony. Although there was other testimony as to twenty occasions, it did not occur in the informant’s trial testimony. The sentence was vacated and the case was remanded for sentencing. U.S. v. Turner, 898 F.2d 705 (9th Cir. 1990).
9th Circuit holds facts underlying dismissed counts may be considered by sentencing court. (770) Defendant argued that the presentence report erroneously contained factual information related to the dismissed counts. Judges Ferguson, Hall and Kozinski rejected the argument, ruling that “[d]ue process principles pose no obstacle to a district court’s consideration of facts underlying dismissed counts of an indictment.” U.S. v. Columbus, 881 F.2d 785 (9th Cir. 1989).
9th Circuit holds judge’s resolution of disputed facts at sentencing need only be supported by “some minimal factual basis.” (770) Judges Ferguson, Hall and Kozinski held that to successfully challenge alleged factual errors in the presentence report, the defendant “must demonstrate that the disputed information lacked some minimal indicium of reliability beyond mere allegation.” Due process requires only that sentencing information be “supported by some minimal factual basis.” U.S. v. Columbus, 881 F.2d 785 (9th Cir. 1989).
9th Circuit rules statements of anonymous informant are not sufficient to support a finding of fact at sentencing. (770) “The mere statements of an anonymous informant, standing alone, do not bear sufficient indicia of reliability to support a finding of fact by even a preponderance of the evidence.” U.S. v. Kerr, 876 F.2d 1440 (9th Cir. 1989).
9th Circuit holds judge’s reliance on information from civil proceeding in sentencing defendant was proper. (770) “A sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of information which he may consider or the source from which it may come.” In this case the settlement of the underlying civil action before appeal left unanswered the question of defendant’s civil liability, but the Ninth Circuit held that the defendant “has not shown that the district judge’s conclusions in that regard are materially false, or that the sentence is disproportionately harsh as a result.” FTC v. American Nat’l Cellular, 868 F.2d 315 (9th Cir. 1989).
9th Circuit rules sentencing judge may consider evidence of counts for which an indictment has been dismissed. (770) The trial judge has broad latitude in sentencing and may properly take into account evidence from a wide variety of sources. “A sentencing judge may consider evidence of counts for which an indictment has been dismissed by the government.” Thus the trial court could properly consider the testimony on the killing charge in determining the 25-year sentence on the bank larceny convictions. U.S. v. Lewis, 862 F.2d 748 (9th Cir. 1988).
9th Circuit holds hearsay may be relied on in sentencing hearing. (770) The 9th Circuit held that federal law is clear that a judge may consider hearsay information in sentencing a defendant. Only when hearsay is so inadequately supported that “the factual basis for believing it is almost nil” can it be argued that the evidence should not have been considered. Here the officer’s hearsay testimony about defendant’s participation in the distribution of cocaine charged in the other count of the indictment was properly considered. The inconsistencies between the officer’s testimony and the informant’s were minor. U.S. v. Fernandez-Vidana, 857 F.2d 673 (9th Cir. 1988).
10th Circuit upholds reliance on uncharged conduct to determine crack quantity. (770) Defendant was convicted of crack cocaine charges, and the district court attributed 26.91 grams of cocaine base to him. Defendant argued that he was convicted of distributing only 1.49 grams of cocaine base, and could not be sentenced for additional quantities because (1) he was not charged with conspiracy or aiding and abetting, and the jury made no such findings, and (2) the district court impermissibly relied on unreliable hearsay. The Tenth Circuit affirmed. First, the district court could sentence defendant based on uncharged conduct. The government need not charge the conduct or present it to a jury. Second, the court relied on trial evidence to attribute 26.91 grams of cocaine base to defendant. Based on that evidence, the district court found that (a) defendant was “a lieutenant” in the overall drug operation, (b) defendant and Hayes “were acting in concert in using a lot of [the] same people to sell from residences around Topeka,” and (c) the additional sales were reasonably foreseeable to defendant in view of his joint operation with Hayes and others. U.S. v. Thomas, __ F.3d __ (10th Cir. Apr. 29, 2014) No. 13-3046.
10th Circuit upholds reliance on hearsay to prove defendant possessed firearms in connection with stolen property. (770) Defendant was convicted of unlawful possession of a firearm. Relying on hearsay testimony, the district court found that defendant had kept the guns in connection with his concealment of stolen property at his home, and applied a § 2K2.1(b)(6) enhancement. The Tenth Circuit affirmed. The district court could reasonably infer the reliability of the hearsay from the existence of at least some corroboration. For example, Sears told investigators that they would find a .270 Winchester rifle (with some unique characteristics) at defendant’s home, and they did. Moreover, apart from the out-of-court statements, authorities were able to confirm from documents that many of the items in defendant’s home had been stolen. From the volume of stolen property, guns, and ammunition at the home, the sentencing judge could reasonably infer that defendant kept the guns in connection with his transportation of stolen property. The court could also reasonably have inferred that defendant kept the guns for protection. The theft ring involved hundreds of thousands of dollars, and defendant had 60 stolen items in his home. U.S. v. Basnett, 735 F.3d 1255 (10th Cir. 2013).
10th Circuit upholds reliance on hearsay at sentencing for supervised release violation. (770) While on supervised release, defendant committed an assault. The district court revoked his supervised release and sentenced him to 18 months. There was conflicting testimony from various parties about what transpired the night of the incident. The court did not believe defendant’s version of events, instead crediting the version contained in the Supervised Release Violation Report, which relied on the statements of three witnesses. Defendant argued for the first time on appeal that the evidence was unreliable because it consisted of hearsay from a police report. The Tenth Circuit upheld the court’s reliance on the hearsay. The corroborating statements of three relatively neutral witnesses helped establish the reliability of the victim’s statement to the police officer. The victim’s daughter and the other female passenger in defendant’s car contemporaneously confirmed the victim’s version of the events, while an uninvolved passerby saw defendant throw the victim to the ground twice and yell at her, an observation entirely consistent with the victim’s version of events. These additional witnesses, dispelled any doubt that might otherwise be raised about the out-of-court testimony of a witness with an axe to grind. U.S. v. Ruby, 706 F.3d 1221 (10th Cir. 2013).
10th Circuit upholds reliance on indictment to find prior convictions were crimes of violence. (770) Defendant was convicted of illegal reentry, and received a 16-level increase under § 2L1.2(b)(1)(A)(ii) based on the district court’s finding that his prior Arizona convictions for aggravated assault were felony crimes of violence. He argued that the court erred in relying on the indictment underlying his prior Arizona convictions. The indictment revealed he used a dangerous weapon, a knife, in connection with those convictions. The Tenth Circuit found no error, because the indictment was incorporated by reference in the judgment, and was therefore reliable evidence of the elements of defendant’s prior convictions. By referring to the indictment and plea agreement, the judgment necessarily incorporated those documents by reference. Further, the indictment, plea agreement and judgment revealed defendant was convicted under parts of Arizona’s aggravated assault statutes that constituted crimes of violence. U.S. v. Antonio-Agusta, 672 F.3d 1209 (10th Cir. 2012).
10th Circuit finds no error in refusal to consider co-defendants’ relevant conduct. (770) Defendant participated in a conspiracy to defraud a state government by submitting overbillings for the construction of a county courthouse. At defendant’s sentencing on fraud offenses, defendant sought to show that his co-defendants had been involved in a similar scheme to defraud the state in connection with other public construction projects. Defendant sought to introduce this evidence to show that he had played a minor role in the fraudulent conduct of his co-defendants over many years. The district court excluded this evidence of the co-defendants’ relevant conduct because it had not been used to calculate the co-defendants’ offense levels. The Tenth Circuit held that the district court properly refused to hear evidence of prior co-conspirator conduct that was never alleged in the indictment or used to sentence the co-conspirators. U.S. v. Martinez, 610 F.3d 1216 (10th Cir. 2010).
10th Circuit holds that California sexual battery was crime of violence. (770) The PSR recommended a 16-level enhancement based on defendant’s prior California conviction for sexual battery. The PSR did not quote or cite the California statute under which defendant had been convicted, but it did describe the facts in detail. In its sentencing memo, the government quoted the California statute, and provided a citation to California Penal Code § 243. The Tenth Circuit upheld the 16-level enhancement, holding that the record demonstrated that defendant violated Cal. Penal Code § 243.4(a), and that the offense was a crime of violence. Because defendant did not object to the application of the crime of violence enhancement, he had the burden of showing that the court’s failure to require the government to present appropriate judicial documents establishing which subsection of § 243.4 he was convicted under affected his substantial rights. Defendant did not proffer any evidence on this matter. The violation of § 243.3(a) is categorically a crime of violence. That section of the statute applies only “if the touching is against the will of the person touched.” That is enough to make it a crime of violence. U.S. v. Gonzalez-Jaquez, 566 F.3d 1250 (10th Cir. 2009).
10th Circuit holds that Shepard does not limit the evidence used to enhance present offense. (770) Defendant pled guilty to being a felon in possession of a firearm, 18 U.S.C. §922(g)(1). Based on evidence that defendant had pulled the firearm out in the presence of others, the district court applied a four-level enhancement under §2K2.1(b)(6) for felony menacing with the firearm. The court had the following documentary evidence supporting the enhancement: (1) the affidavit of the arresting police officer; (2) the officer’s narrative remarks in a police report, describing the events surrounding defendant’s arrest; and (3) an ATF report. Defendant argued that these documents could not be considered for purposes of enhancing his sentence after Shepard v. U.S., 544 U.S. 13 (2005). The Tenth Circuit held that Shepard was inapplicable. Shepard limits the evidence that can be used in determining whether a prior conviction was for an enhancing offense. It does not limit the evidence that can be used in determining whether defendant’s conduct during the present offense justifies a sentencing enhancement. U.S. v. Cook, 550 F.3d 1292 (10th Cir. 2008).
10th Circuit rejects large departure/variance based on uncharged conduct that was not related to current offense. (770) The FBI began to investigate defendant after an adult dancer reported defendant had discussed with her in detail his desire to kidnap, rape and kill young girls. The FBI investigated defendant for several months. Although there was some evidence that he had approached a young girl in Wal-Mart, and had been interrupted by the girl’s mother, the FBI was unable to find any additional evidence in this regard. Therefore, it shifted the focus of its investigation to defendant’s illegal drug activity. He pled guilty to a single count of possession of methamphetamine with intent to distribute. Although his guideline range was 120-135 months, the district court sentenced defendant to 360 months, finding that the advisory guideline range was “vastly inadequate.” The Tenth Circuit reversed. The horrific sexual abuse and murder that defendant either contemplated or took steps toward committing were not relevant conduct because they were completely unrelated to his sale of meth. The court could not have departed under the guidelines on the basis of these facts. When a § 5K2.0 departure is based on acts of misconduct not resulting in conviction, those acts must still relate meaningfully to the offense of conviction. Section 4A1.3(a)(2) also was unavailing, because the uncharged conduct was not similar adult criminal conduct. Finally, in an exercise of Booker discretion, a sentencing court may not discard the advisory guideline range and impose a sentence based on evidence of the defendant’s uncharged, unrelated misconduct, whether actually committed or contemplated for the future. U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007).
10th Circuit holds that extreme upward deviation was reasonable. (770) Defendant pled guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His advisory guideline range was 15-21 months, but the district court, after considering the sentencing factors in 18 U.S.C. § 3553(a), found this insufficient, and imposed a sentence of 120 months’ imprisonment. The Tenth Circuit held that the extreme upward deviation was reasonable. The district court’s reference to defendant’s prior arrest record was not improper – the court did not rely on the arrest record itself, but it extrapolated from the uncontested facts in the PSR (including the number, frequency, and seriousness of defendant’s various arrest and convictions) to draw conclusions about characteristics relevant to sentencing factors. The court also did not err by comparing defendant’s history to that of an armed career criminal, 18 U.S.C. § 924(e). The court properly sought guidance from the provision as to the appropriate length of sentence given defendant’s criminal history. The magnitude of the variance, although large, was reasonable, given defendant’s exceptional history and the fact that the advisory guideline sentence did not fully reflect the serous nature of his criminal record. Defendant had had significant contact with the criminal justice system over a short period of time, and indicated “a commitment to a criminal lifestyle.” U.S. v. Mateo, 471 F.3d 1162 (10th Cir. 2006).
10th Circuit holds that judge can determine whether prior crimes were committed on separate occasions under the ACCA. (770) Under the Armed Career Criminal Act, a person who violates 18 U.S.C. § 922(g) is subject to an enhanced penalty if he has three previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” § 924(e). Defendant argued that the district court violated his Sixth Amendment rights by determining that his prior crimes were committed on different occasions. The Tenth Circuit disagreed, holding that the “prior conviction exception” outlined in Apprendi v. New Jersey, 530 U.S. 466 (200) includes the issue of whether the prior crimes were committed on separate occasions. See U.S. v. Michel, 446 F.3d 1122 (10th Cir. 2006). The separateness of prior crimes is inherent in the fact of conviction. The district court had sufficient evidence from which to conclude that the defendant’s prior convictions were committed on separate occasions. The court had before it some of the court records from defendant’s prior crimes. Moreover, defendant’s failure to object to the PSR created a factual basis for the court to enhance his sentence under the ACCA. U.S. v. Harris, 447 F.3d 1300 (10th Cir. 2006).
10th Circuit says that post-Booker, unobjected-to facts in PSR can still be relied upon to apply guidelines. (770) Post-Booker, the 10th Circuit has refused to treat unobjected-to PSR facts as admitted for Sixth Amendment Booker purposes. See U.S. v. Bass, 411 F.3d 1198 (10th Cir. 2005). Here, the court clarified that that Bass did not overturn pre-Booker precedent addressing the application of the guidelines that specifically permitted the district court to rely on unobjected-to facts in the PSR to apply those guidelines. U.S. v. Wolfe, 435 F.3d 1289 (10th Cir. 2006).
10th Circuit holds that California weapons offense was not firearms offense. (770) Defendant pled guilty to illegally entering the U.S. after deportation. Several years before, defendant had been convicted of violating California Penal Code § 12020(a)(1), which prohibits possession of a long list of weapons. The list includes firearms, but also includes weapons that are not firearms, such as knives, swords and hand grenades. According to the police report, defendant’s weapon was a sawed-off shotgun. Section 2L1.2 (b)(1)(A)(iii) provides for a 16-level increase if the defendant previously was deported after “a conviction for a felony that is … a firearms offense.” Using a categorical approach, the Tenth Circuit held that the California weapons offense was not a firearms offense under § 2L1.2. The California statute prohibits possession of a variety of weapons, some of which are not firearms. In addition, the official judicial records did not shed any light on what type of weapon defendant possessed. The police report could not be considered under Shepard v. U.S., 125 S.Ct. 1254 (2005). While Shepard interpreted only the Armed Career Criminal Act, its rational would seem to apply to guideline enhancements as well as statutory enhancements. U.S. v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. 2005).
10th Circuit says information from informant in PSR was sufficient to support obstruction increase. (770) The PSR recommended an obstruction of justice increase because defendant colluded with Sanchez to present false testimony. The report noted that an FBI report identified an individual who was serving time with defendant in jail. During this time, Sanchez admitted to the informant that he, defendant and a third party committed the robbery, and that Sanchez’s girlfriend was supposed to have gotten rid of the evidence of the robbery but failed to do so, and that the girlfriend was in touch with defendant and had participated in a plan to present a false defense. Defendant objected, arguing that the information in the PSR was unreliable because the prosecution had not disclosed the FBI report, the identity of the informant, or the informant’s criminal record. The Tenth Circuit held that the district court properly determined that the informant’s statement was sufficiently reliable to support the obstruction increase. First, the informant had the opportunity to talk to defendant, since they were housed together twice. Second, the trial received no publicity, making it highly unlikely that the informant could have learned of the details he described unless he had talked to defendant. Defendant did little to challenge the reliability of the information. U.S. v. Espinoza, 338 F.3d 1140 (10th Cir. 2003).
10th Circuit finds witness statement supported increase for possession of gun in connection with another felony. (770) Police, responding to a report of shots being fired, were informed by a neighbor that he saw defendant fire a handgun several times before leaving in his car. Defendant was taken into custody. A passenger in defendant’s car reported that defendant had fired the gun at an unknown individual who ran behind his residence. Police also found several shell casings on the ground, and a semi-automatic gun under the passenger seat of defendant’s car. He was convicted of being a felon in possession of a firearm. The district court applied a four-level increase under § 2K2.1(b)(5) for possession of a firearm in connection with another felony offense, the firing of the gun at the unknown individual. Defendant argued that contrary to the statement of the passenger in his vehicle, he did not fire the gun at anyone, and the witness statement did not provide a sufficient factual basis for the enhancement. The Tenth Circuit disagreed, noting that defendant failed to provide any support for his position that he did not fire at anyone, and the district court specifically commented on the reliability of the witness’ statement. U.S. v. Norris, 319 F.3d 1278 (10th Cir. 2003).
10th Circuit finds unsworn statement by unidentified acquaintance was insufficient to support increase. (770) Defendant attempted to cash a forged check. When police confronted him, he pulled a gun from his waistband and shot the officer three time. In federal court, defendant pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In return, the government agreed not to use the shooting as relevant conduct for sentencing. The district court applied a four-level enhancement under § 2K2.1(b)(5) for possession of a firearm in connection with another felony offense. The PSR noted that “[d]uring the investigation of the shooting, acquaintances of the defendant reported having knowledge of the defendant’s possession of the gun at least three days prior to the shooting … and to his possession of the gun during the transaction of stolen checks.” The Tenth Circuit reversed. The only factual basis for the enhancement was a vague hearsay statement in the PSR that “acquaintances” had “knowledge” that he possessed the gun during a transaction involving stolen checks. The vague, unsworn statement by an unidentified witness in the PSR was insufficient to constitute a preponderance of the evidence. U.S. v. Hurlich, 293 F.3d 1223 (10th Cir. 2002).
10th Circuit says no evidence supported finding that quantity of crack decreased over time. (770) Defendant presented expert testimony that the weight of his cocaine totaled only 49.81 grams. The government countered with a report by the Kansas Bureau of Investigation that the drugs totaled 53.15 grams. The court noted that case law suggested four reasons why drug quantity may decrease over time: static cling, consumptive testing, evaporation, and/or particular atmospheric conditions. The court then concluded that because defendant’s expert weighed the drug sample eight months after the KBI, the government’s measurement should be credited because it was recorded earlier than that of defendant’s expert. The Tenth Circuit reversed, finding no evidence in the record supporting the court’s finding that the quantity of a given drug sample will decrease over time. The government did not introduce any evidence suggesting that an earlier-in-time measurement was more likely to be accurate than one performed later. There was no evidence that static cling, consumptive testing, evaporation and/or particular atmospheric conditions accounted for any, much less all, of the relevant drug quantity differential in this case. The district court erred in taking judicial notice of the alleged fact that drug quantity decreases over time. Such a decrease was neither “generally known within the territorial jurisdiction of the trial court,” nor “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” U.S. v. Boyd, 289 F.3d 1254 (10th Cir. 2002).
10th Circuit upholds sentencing consideration of illegally obtained evidence. (770) Defendant challenged the district court’s refusal to apply the exclusionary rule at sentencing to bar the consideration of drugs and firearms seized in violation of the Fourth Amendment. The Tenth Circuit ruled that the district court did not err in considering the illegally obtained evidence at sentencing, since there was no evidence that the officers’ actions in violating defendant’s rights were done with the intent to secure an increased sentence. Previous Tenth Circuit cases have refused to extend the exclusionary rule to sentencing. See U.S. v. Graves, 785 F.2d 870 (10th Cir. 1986) (pre-guidelines case); U.S. v. Jessup, 966 F.2d 1354 (10th Cir. 1992). Moreover, all nine other circuits to have considered this issue have determined that, in most circumstances, the exclusionary rule does not bar the introduction of the fruits of illegal searches and seizures during sentencing proceedings. Here, there was no evidence that officers’ were motivated by an intent to increase defendant’s sentence. First, there was no case pending at the time of the search. Second, although the officers did not have reasonable suspicion to conduct the search, this was not a case where the officers egregiously violated defendant’s rights. The officers believed they had reasonable suspicion based on defendant’s nervousness, his hesitation in refusing to give consent to search, and their knowledge of his alleged drug trafficking. U.S. v. Ryan, 236 F.3d 1268 (10th Cir. 2001).
10th Circuit upholds reliance on lab report to determine weight of methamphetamine. (770) Defendant contended that the district court erred in relying on the government’s lab reports to determine the weight of the methamphetamine that was seized. He argued that his expert, Dr. Lott, found the procedures used by the lab to weigh the evidence were unreliable. The Tenth Circuit ruled that the district court did not err in finding the lab report reliable. As Lott’s report explains, some of the irregularities in the way the meth was weighed was due to the fact that the evidence was initially analyzed for a state trial. When the trial was moved to federal court, it was necessary to reweigh the evidence for the percentage purity to get the actual weight of the meth. It appeared from Lott’s report that the actual weight of the meth was not necessary for the state trial. Thus, different data was required for the state trial versus the federal trial, thereby accounting for many of the “irregularities” cited by the defense. Further, Lott’s report stated that although parts of the procedure followed by the lab were not the most desirable approach, it was understandable why the procedure was used “since the amount of material was small.” Nowhere in the report did Lott state that the tests used by the lab were unreliable or that the drug quantity would be different if alternative procedures had been followed. U.S. v. Ryan, 236 F.3d 1268 (10th Cir. 2001).
10th Circuit holds that marijuana plants from crops grown by third party were relevant conduct. (770) The district court included 2494 marijuana plants from a crop grown by a third party, Hodges, as relevant conduct in determining defendant’s sentence. Hodges testified that this crop was grown with defendant in mind and was intended for his receipt. Defendant argued that the district court improperly relied on the representation of a special agent to evaluated Hodges’ credibility, and that Hodges’ testimony was fraught with inconsistency. The Tenth Circuit found no error. Despite the fact that defendant was acquitted of conspiracy, the trial court was empowered to determine, as it did by a preponderance of the evidence, that the marijuana from the 1997 crop was reasonably foreseeable to defendant and “part of the conspiracy.” U.S. v. Keeling, 235 F.3d 533 (10th Cir. 2000).
10th Circuit upholds reliance on defendant’s initial drug quantity admission. (770) At the time of her arrest, defendant told police she had received between two and four ounces of methamphetamine per month beginning in May 1997 and continuing until January 1998. At sentencing, defendant recanted that story, alleging her prior statements were made under duress, and alleging a much small drug quantity. The district court found that defendant’s initial statement to police was more credible than her testimony at sentencing, and her earlier statement was corroborated by her supplier’s testimony at the hearing. The Tenth Circuit agreed that defendant’s initial statement, the supplier’s testimony, and the drug ledgers were more than sufficient evidence to support the district court’s conclusion that defendant received an average of two ounces (57.7 grams) of meth every two weeks for eight months and on occasion received larger quantities. The quantity of meth in these transactions totaled at least 1000 grams. U.S. v. Asch, 207 F.3d 1238 (10th Cir. 2000).
10th Circuit upholds use of testimony from co-conspirator’s sentencing hearing. (770) Defendant argued that the district court violated her right to be present at the presentence hearing in Spear’s case, at which Duroy gave testimony supporting the district court’s finding that defendant was an organizer or leader of the conspiracy. The Tenth Circuit found no error because defendant had an opportunity to call Duroy to testify in her own case before she was sentenced. Spears called Duroy to testify in a presentence hearing on September 17. On October 1, based on Duroy’s testimony, the probation officer prepared the revised PSR recommending the sentencing enhancement. Defendant filed objections on October 23, arguing that she should have been given an opportunity to cross-examine Duroy at the hearing. Defendant did not, however, call Duroy as a witness at her own sentencing hearing October 26. Because defendant did not show that the district court prevented her from calling Duroy to testify, she did not show that the district court violated her right to be present at all stages of her trial. The use of testimony from a co-defendant’s sentencing proceeding is analogous to the use of testimony from a co-defendant’s trial. U.S. v. Spears, 197 F.3d 465 (10th Cir. 1999).
10th Circuit relies on government report about attempted escape to impose obstruction enhancement. (770) The district court applied an obstruction of justice enhancement based on defendant’s attempt to escape from the county detention center after his trial and before the sentencing hearing. Defendant argued that the evidence that he participated in the attempted escape was unreliable. The government submitted a report to the court concerning the alleged escape attempt. Defendant objected to the report and asked the judge to require testimony at sentencing to establish the factual underpinning of the report. The report was not part of the appellate record. The Tenth Circuit found no basis for reversing the district court’s ruling that the report had sufficient indicia of reliability to use for sentencing purposes. At sentencing, defendant merely made the bald assertion that the report did not have sufficient indicia of reliability to be considered by the court, and gave no indication of the reasons for this position. On appeal, defendant merely recited the fact that he made this assertion in the district court. U.S. v. Wiseman, 172 F.3d 1196 (10th Cir. 1999).
10th Circuit affirms obstruction enhancement for calls made to informant before arrest. (770) Defendant and her two sons were convicted of drug charges based on controlled buys made by an informant and an undercover agent. At 11 p.m. the night before they were arrested, the informant received an anonymous threatening phone call. At about 2 a.m. in the morning defendant called the informant to tell him that telephone records from the hotel where the undercover agent was staying showed calls to the sheriff’s office. She asked defendant whether the agent was an undercover agent. The Tenth Circuit affirmed an obstruction of justice enhancement based on the phone calls. Although the informant was not the most credible witness as to some matters, his testimony regarding the phone calls was substantially corroborated. Defendant admitted that she made the 2 a.m. phone call, and that she and her son had the hotel records at her residence, where they were recovered by police. Although defendant did not directly threaten the informant, the phone calls were made with the intent to obstruct justice. U.S. v. Vaziri, 164 F.3d 556 (10th Cir. 1999).
10th Circuit relies on testimony related to acquitted counts. (770) Defendant was indicted on three counts of threatening a federal law enforcement officer. One count was based on a recorded conversation with a cooperating co-conspirator, and the other two counts were based on threats defendant allegedly made to the co-conspirator on two other occasions. A jury convicted defendant of the count involving the threat documented on tape, and acquitted him of the other two counts. In additional to testifying about the threats, the co-conspirator also testified at trial that: (1) defendant asked the co-conspirator to purchase ammunition for his gun and drive to the police department to case the site; (2) defendant devised a detailed plan for killing the detective; and (3) defendant exchanged a .38 revolver for a .380 semi-automatic weapon to increase his firepower in a potential shootout with the detective. The district court applied a § 2A6.1(b)(1) enhancement for conduct showing an intent to carry out his threats. Defendant argued that the court relied on testimony that the jury did not find credible. The Tenth Circuit held that the sentencing court’s reliance on testimony related to acquitted counts did not constitute error. A sentencing court has discretion to make credibility determinations for sentencing purposes. U.S. v. Martin, 163 F.3d 1212 (10th Cir. 1998).
10th Circuit says court may consider probation officer’s opinion in deciding to depart. (770) The district court based a three-level departure on a combination of 11 factors, including the fact that the probation office concluded that it was appropriate to depart in this case. The Tenth Circuit found no error. Although the unsupported opinion of a probation officer cannot serve as the basis for a departure, in this case, the probation officer considered the facts identified by defendant, and explained how those facts supported a departure. The district court simply indicated that it had favorably considered the probation officer’s opinion. While it would be inappropriate for the sentencing court to rely solely on the unsubstantiated opinion of a probation officer, it was not impermissible for the court to consider the probation officer’s opinion on the appropriateness of a departure. U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit says using defendant’s statements to DEA did not violate Rule 11(e)(6) or § 1B1.8. (770) Defendant agreed to cooperate with DEA agents, and revealed details of prior drug transactions, including his involvement in the purchase and distribution of three kilograms of cocaine during the previous three months. At the U.S. Attorney’s office, he confirmed his earlier statements but refused to provide the government with the names of his courier or local contacts. The government then terminated the interview. The district court held him accountable at sentencing for the three kilograms of cocaine he had admitted to previously distributing. The Tenth Circuit affirmed, concluding that neither Rule 11(e)(b) nor guideline § 1B1.8 barred the use of his statements. Even if his conversation qualified as plea discussions, Rule 11(e)(6) does not apply to sentencing proceedings. Section 1B1.8 applies only where the defendant agrees to cooperate with the government by providing the government with the requisite information, and the government agrees not to use that information against the defendant. Although the DEA might have promised defendant that his cooperation would be helpful to him, they did not promise that incriminating statements he made in the course of cooperation would not be used against him. U.S. v. Roman-Zarate, 115 F.3d 778 (10th Cir. 1997).
10th Circuit says failure to appeal was not ineffective assistance where appeal lacked merit. (770) In a § 2255 motion, defendant argued that his counsel was ineffective for failing to advise defendant to appeal. The Tenth Circuit rejected the ineffective assistance claim, since there was no indication that defendant’s claims would have prevailed on direct appeal. Defendant could not prove that the government failed to introduce sufficient evidence to hold him accountable for at least 15 kilograms of cocaine. His only basis for disputing the sentencing court’s calculation was that it relied on the hearsay testimony of an FBI informant who was the brother of defendant’s co‑defendant. The informant reported that over three years he had traveled regularly to California to obtain cocaine directly from defendant. The PSR relied on this to attribute 43 kilograms to defendant. Hearsay statements need only contain minimal indicia of reliability to be used at sentencing. The informant’s wife corroborated several specific cocaine transaction between defendant and the informant. U.S. v. Lopez, 100 F.3d 113 (10th Cir. 1996).
10th Circuit finds defendant possessed gun in connection with assault. (770) Police responding to a call about a fight involving a gun were told by the victim that defendant had confronted her and threatened her with a gun. They located defendant three blocks away, carrying a knife, a loaded gun and ammunition. He was convicted of being a felon in possession of a firearm. The Tenth Circuit upheld a § 2K2.1(b)(5) enhancement for possession of the gun in connection with the assault. An officer testified that he received a call that a fight involving a gun was in progress, and that when he arrived, the victim said defendant had threatened her with a gun. A witness testified that defendant yelled at the victim and kicked her car. This hearsay evidence was distinguishable from that found unreliable in U.S. v. Fennell, 65 F.3d 812 (10th Cir. 1995). The victim’s hearsay statement was made immediately after the crime, and the officer was able to observe the victim’s demeanor. Moreover, defendant had the opportunity to cross-examine the officer at trial. Partial corroboration was provided by the witness’s testimony that defendant was screaming at the victim and kicking her car. U.S. v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996).
10th Circuit relies on last minute affidavit to support D-methamphetamine finding. (770) Defendant objected to the PSR’s use of the guidelines for D‑rather than L‑methamphetamine. At sentencing, the government admitted it bore the burden of proving the substance was D‑methamphetamine, but stated that as of the date of sentencing the lab results were not available. The district court, over defendant’s objection, granted the government a three hour continuance. At the continued hearing, the government presented a notarized affidavit from the lab that it had received by fax which stated that the substance was D‑methamphetamine. The Tenth Circuit upheld the court’s use of the last‑minute affidavit to base defendant’s sentence on D‑methamphetamine. The district court had discretion to grant or deny the government’s request for a continuance of the sentencing hearing. Moreover, even if the court abused its discretion in granting the continuance and admitting the affidavit, there was no indication that defendant suffered prejudice. The grounds on which defendant would have attempted to impeach the affidavit were “flimsy” at best. U.S. v. Miller, 84 F.3d 1244 (10th Cir. 1996), overruled on other grounds by U.S. v. Holland, 116 F.3d 1353 (10th Cir. 1997).
10th Circuit affirms district court’s credibility determination. (770) Defendant challenged the court’s finding that 1000 marijuana plants were attributable to him since it relied on information provided by a co-defendant with whom the court “had serious credibility problems.” The Tenth Circuit affirmed, refusing to second guess the district court’s credibility determination. Although the court found one co‑defendant’s credibility doubtful at one point, and the government admitted that another co‑defendant was a pathological liar, credibility determinations are for the district court. The court changed its opinion regarding the co‑defendant’s credibility, at least with respect to her statement regarding the number of marijuana plants attributable to defendant. U.S. v. Silvers, 84 F.3d 1317 (10th Cir. 1996).
10th Circuit upholds co‑conspirator’s estimate where there was ample corroborating evidence. (770) In finding defendant accountable for more than 20 kilograms of crack, the district court relied on an FBI agent’s testimony that defendant distributed between 20 and 50 kilograms of crack cocaine. He based this estimate on a co‑conspirator’s statement that she and another conspirator personally distributed 20 kilograms of crack cocaine that they had received from defendant, and that additional amounts defendant distributed through others approached 30 kilograms. Defendant argued that the estimate lacked sufficient indicia or reliability. The Tenth Circuit upheld the estimate, finding ample corroborating evidence. The ideal method for proving drug quantity is an estimate from a credible, identified witness, plus concrete evidence that a reviewing court can use to reconstruct the factual basis for the estimate. Here, several witnesses stated that 12‑15 individuals sold between one and three ounces of crack per week for defendant for three years. This clearly supported the 30‑kilogram estimate. U.S. v. Ivy, 83 F.3d 1266 (10th Cir. 1996).
10th Circuit considers statements made during withdrawn guilty plea. (770) Defendant originally pled guilty to drug charges. However, after a dispute regarding the anticipated sentence and the recommendations in the PSR, defendant was permitted to withdraw his plea and new counsel was appointed. Defendant then was convicted at trial, despite his testimony denying his involvement in the offense. The district court, relying on the statements defendant made at his first plea hearing, found that defendant committed perjury and imposed a § 2D1.1(b)(1) enhancement. Defendant argued that Fed. R. Evid. 410 and Fed. R. Crim. P. 11(e)(6) prohibit the admission of evidence relating to pleas of guilty which are later withdrawn in any civil or criminal proceeding. The Tenth Circuit upheld the consideration at sentencing of the statements made during defendant’s plea hearing, even though the plea was later withdrawn. Under U.S. v. Ruminer, 786 F.2d 381 (10th Cir. 1986), these rules are not applicable at sentencing. No limitation shall be placed on the information a court may consider at sentencing concerning the background, character, or conduct of defendant. U.S. v. Medina‑Estrada, 81 F.3d 981 (10th Cir. 1996).
10th Circuit upholds reliability of witnesses over government’s objection. (770) The government and defendant agreed that he was accountable for between 100‑500 grams of cocaine. The government contended that two witnesses who reported that defendant was involved with far larger quantities were unreliable; however, the district court found them reliable. The Tenth Circuit upheld the court’s determination that the witnesses were reliable. The two testified only as to their personal knowledge of specific facts relating to defendant’s drug transaction. They sufficiently corroborated each other’s statements, as well as the statements they made to the probation officer. Moreover, the judge found their testimony reliable after observing their demeanor in court. Finally, courts may use out‑of‑court statements not independently corroborated when the informant is identified. U.S. v. Garcia, 78 F.3d 1457 (10th Cir. 1996).
10th Circuit permits consideration of time-barred acts as relevant conduct. (770) Defendant argued that the statute of limitations should have precluded any consideration at sentencing of checks she forged more than five years ago. The Tenth Circuit held that the statute of limitations does not bar consideration of relevant conduct for sentencing purposes. Defendant did not contend that the time-barred conduct was irrelevant to the charges on which she was properly convicted. U.S. v. Jaynes, 75 F.3d 1493 (10th Cir. 1996),the same type of drug that formed the basis of the instant offense. U.S. v. McKneely, 69 F.3d 1067 (10th Cir. 1995).
10th Circuit upholds estimate based on co-conspirator’s testimony. (770) Undercover agents agreed to sell powder cocaine to a crack dealer. The dealer brought defendant with him to cook the powder into crack. A co-conspirator testified that he had witnessed defendant cook an ounce of powder cocaine into crack on two occasions at the dealer’s residence. Defendant argued that the co-conspirator’s testimony was not reliable because he did not provide the exact dates he observed her cook the crack and was motivated by a favorable plea agreement. The Tenth Circuit upheld the finding that the co-conspirator’s testimony was reliable. The district court observed the co-conspirator’s testimony and demeanor during direct and cross-examination, and specifically found that he was a credible witness. U.S. v. Hooks, 65 F.3d 850 (10th Cir. 1995).
10th Circuit rejects enhancement based on unsworn allegations made by witness over the phone to probation officer. (770) Defendant pled guilty to possessing an automatic machine gun. The district court applied a § 2K2.1(b)(5) enhancement for using the gun in connection with a felonious assault. The court relied on the PSR and the testimony of the probation officer who prepared the report. The report and testimony simply recounted statements made by defendant’s girlfriend to the probation officer during a telephone interview. The Tenth Circuit held that the unsworn allegations made over the phone, which lacked any other corroboration, lacked sufficient indicia of reliability for the enhancement. Although the statements might be credible, they lacked almost any indicia of reliability. The girlfriend did not prepare a sworn affidavit in support of the allegations. The probation officer did not have the opportunity to observe her demeanor and therefore could not form any opinion as to her veracity. Moreover, the facts surrounding defendant’s arrest suggested defendants actions constituted a misdemeanor rather than a felony. U.S. v. Fennell, 65 F.3d 812 (10th Cir. 1995).
10th Circuit upholds use of hearsay where nothing in record suggested it was unreliable. (770) Defendant argued that the district court erred in admitting certain hearsay statements at sentencing. The 10th Circuit upheld the use of the hearsay. Although hearsay statements must possess some minimal indicia of reliability before being used at sentencing, there was nothing in the record to suggest that the hearsay involved here was inherently unreliable. U.S. v. Browning, 61 F.3d 752 (10th Cir. 1995).
10th Circuit says findings were not sufficient to support supervisorial enhancement. (770) The presentence report concluded that defendant was second in charge of a drug operation, based on information obtained by a government agent from witnesses. Defendant argued that he was not a supervisor, relying on witness interviews that identified another individual as second in command and defendant as a middleman or delivery man. The district court imposed a supervisorial enhancement, finding it not “critical” to determine whether defendant was second in command only part of the time. The Tenth Circuit held that the court’s findings were insufficient to support the supervisorial enhancement. The grand jury testimony introduced by the government was hearsay, and was contradicted by an undercover agent’s report that another conspirator was second in command. Although a court may use reliable hearsay, the court here did not identify what particular hearsay it was relying on or make any assessment of reliability. U.S. v. Pelliere, 57 F.3d 936 (10th Cir. 1995).
10th Circuit relies on defendant’s statement made to police to determine drug quantity. (770) When defendant was arrested, he told police that he had traveled from New Mexico with three ounces of methamphetamine to sell, that he had sold two ounces, and had a one ounce stash hidden in a community bathroom. Police recovered a total of 23.4 grams, about one ounce, from defendant’s person and the exact location he described. Defendant argued that his sentence should be based on the 23.4 grams seized rather than the three ounces he discussed with police. He argued that the only evidence of the additional methamphetamine was his uncorroborated hearsay statement. The Tenth Circuit upheld the district court’s reliance on the police officers’ testimony about defendant’s statement. Defendant’s statement was sufficiently corroborated when police searched the community bathroom and found the methamphetamine hidden in the exact location identified by defendant. U.S. v. Clark, 57 F.3d 973 (10th Cir. 1995).
10th Circuit relies on co-conspirator’s incriminating statements to government. (770) Defendant and an associate used stolen credit cards to finance a trip across the country. In preparing defendant’s presentence report, the probation officer relied on a statement the associate gave to the government summarizing the events of the trip. The district court relied on the presentence report to calculate loss. The Tenth Circuit affirmed the district court’s consideration of the associate’s statement. Hearsay can be used in sentencing if it is reliable. The co-conspirator’s statements were against his own interest because he admitted his own involvement in the scheme. U.S. v. Moore, 55 F.3d 1500 (10th Cir. 1995).
10th Circuit relies on unsworn statement to probation officer to deny acceptance reduction. (770) The 10th Circuit approved the district court’s reliance on defendant’s unsworn statement to the probation officer to deny defendant a reduction for acceptance of responsibility. The court concluded that instead of admitting guilt, the statement contained excuses by defendant, and attempts to shift blame from himself. U.S. v. McAlpine, 32 F.3d 484 (10th Cir. 1994).
10th Circuit relies on co-conspirator’s testimony to uphold organizer enhancement. (770) Defendant challenged an organizer enhancement under § 3B1.1(c), claiming he and his co-conspirator had equal culpability. The 10th Circuit upheld the enhancement, concluding the district court properly relied on the co-conspirator’s testimony during an evidentiary hearing to dismiss the conspiracy indictment. The co-conspirator testified that defendant gave him $11,000 to go to California to buy 17 ounces of cocaine and to deliver it to defendant in Utah. Others did the same thing for defendant. A taped telephone conversation between defendant and the co-conspirator corroborated the co-conspirator’s testimony. U.S. v. Tovar, 27 F.3d 497 (10th Cir. 1994).
10th Circuit finds witness’s testimony too vague to support 80 gram estimate. (770) At sentencing, a government witness testified that she regularly purchased heroin from defendant from January to April, 1991. The 10th Circuit found this testimony was not sufficiently reliable to support the finding that 80 grams of heroin were involved in these sales. Although the witness testified as to the weekly sales of heroin, her testimony was “extremely vague” as to quantities. She testified that amounts varied from week to week, sometimes one or two grams and sometimes four or five. She also testified that the DEA agents essentially came up with an “estimate” or “guess” of 80 grams, on the assumption that she purchased five grams per week for 16 weeks. Her testimony concerning drug quantity was “flatly contradictory,” and no other corroborating evidence was presented. U.S. v. Richards, 27 F.3d 465 (10th Cir. 1994).
10th Circuit holds government witness was reliable where corroborated by informant. (770) The 10th Circuit upheld the district court’s reliance on a government witness’s testimony about the amount of drugs defendant distributed. The district court expressed reservations about the witness’s reliability, but concluded that his testimony was sufficiently reliable to be used for sentencing. The witness accurately described the exterior of defendant’s house, as well as some things on the interior. The witness’s statements regarding his transactions with defendant were highly self-incriminating. Most importantly, the witness’s testimony was consistent with the information provided by a confidential informant. U.S. v. Ortiz, 25 F.3d 934 (10th Cir. 1994).
10th Circuit says court did not improperly rely on information protected by prior plea bargain. (770) Defendant argued that the presentence court improperly revealed information to the district court which the government had agreed in an unrelated plea bargain would not be used against him. In the previous case, defendant had pled guilty to two counts, and the government agreed to dismiss the remaining counts and agreed that defendant would suffer no adverse consequences from the dismissed counts. The presentence report here referred to the facts in the dismissed counts. The 10th Circuit concluded that the district court did not rely on improper information. The court was aware of the plea bargain, and expressly stated that in sentencing defendant for the instant offense, it was considering only the fact that defendant was convicted on two counts. The court’s consideration of this information was clearly not barred by the plea bargain. U.S. v. Allen, 24 F.3d 1180 (10th Cir. 1994).
10th Circuit relies on bank teller’s testimony that defendant carried firearm during robbery. (770) Defendant robbed a bank. He received an enhancement under § 2B3.1(b)(2) for brandishing or displaying a firearm based on a teller’s testimony that he carried a gun during the robbery. The 10th Circuit affirmed, despite defendant’s testimony that he did not carry a firearm. The district court found the teller was a credible witness, and in effect, adopted her version of the events. There also was testimony from an FBI agent which tended to corroborate the teller’s testimony. U.S. v. Fetherolf, 21 F.3d 998 (10th Cir. 1994).
10th Circuit finds evidence used for drug quantity estimate had minimum indicia of reliability. (770) The 10th Circuit held that the evidence the district court relied upon to make a drug quantity determination had a minimum indicia of reliability. The determination was based on the probation officer’s estimates of the drugs involved in defendant’s offense, evidence presented by an FBI agent, and the testimony of one of defendant’s former suppliers. U.S. v. Roederer, 11 F.3d 973 (10th Cir. 1993).
10th Circuit says court did not rely on faulty witness to determine drug quantity. (770) Defendant was convicted of drug offenses. He challenged the district court’s determination of his drug quantity by claiming that the court relied on a witness whose testimony was so internally inconsistent as to make it untrustworthy. The 10th Circuit disagreed that the district court had relied on the witness, noting that the court set defendant’s drug quantity as a lower figure than the one testified to by the witness. Moreover, the appellate court disputed defendant’s claim that the witness’s testimony was internally inconsistent. Finally, the court found the evidence sufficient to attribute to defendant drugs found in a hotel room occupied by defendant even though another person claimed ownership of the drugs. U.S. v. McIntyre, 997 F.2d 687 (10th Cir. 1993).
10th Circuit upholds finding of possession of crack based on witness’s testimony. (770) The defendant argued that the district court should have presumed all untested cocaine attributed to him was simple cocaine rather than cocaine base, or crack, which carries a heavier penalty. Relying on a witness’s consistent reference to defendant’s possession of “crack,” the 10th Circuit found no clear error in the district court’s conclusion. U.S. v. McIntyre, 997 F.2d 687 (10th Cir. 1993).
10th Circuit rejects agent’s estimate of “average” drug shipment. (770) While defendant was shown to have participated in two drug shipments, no direct evidence indicated the size of those shipments. The district court calculated their size by relying on a government agent’s testimony that shipments from El Paso to Oklahoma City “average” between sixty and 100 pounds; the court used the sixty-pound figure. The 10th Circuit concluded that the finding was clearly erroneous. Though estimates of drug quantity have been upheld in the past, in all those cases, the estimate “had some basis of support in the facts of the particular case.” U.S. v. Garcia, 994 F.2d 1499 (10th Cir. 1993).
10th Circuit upholds drug quantity determination despite discrepancies in testimony. (770) The 10th Circuit rejected defendant’s claim that the testimony relied on to determine drug quantity lacked credibility and specificity. Although there were discrepancies as to the total amount attributable to defendant, the testimony of several witnesses supported a finding that it exceeded 15 kilograms. Due regard was given to the district court’s opportunity to judge the credibility of witnesses. U.S. v. Chatman, 994 F.2d 1510 (10th Cir. 1993).
10th Circuit rejects reliance on reliable but unidentified informant absent corroboration. (770) Defendant’s drug quantity was based on an informant’s hearsay statements. Though defendant’s motion to learn the identity of the informant was denied, the district court relied on the hearsay. The 10th Circuit rejected the calculation, noting that the commentary to 6A1.3 requires “corroboration” when an unidentified informant is relied upon. Though part of the informant’s report was corroborated, that corroboration did not satisfy the guidelines requirement, for it did not speak directly enough to the issue of drug quantity. Nor did informant’s past reliability displace the corroboration requirement. U.S. v. Ortiz, 993 F.2d 204 (10th Cir. 1993).
10th Circuit affirms reliance on testimony that was “internally consistent.” (770) The 10th Circuit rejected defendant’s claim that the district court relied upon false and unreliable information linking defendant to several different marijuana transactions. The testimony relied upon was internally consistent and was consistent with the testimony of other witnesses. Although some inconsistencies could be found, this did not mandate that the testimony be thrown out entirely. The sentencing judge’s findings were also supported by the testimony of law enforcement officials. The district court had the opportunity to view all the testimony during the two days of hearings on the sentencing issues raised by defendant. Deference should be granted to the judge’s findings. U.S. v. Garcia, 987 F.2d 1459 (10th Cir. 1993).
10th Circuit upholds leadership enhancement based on government agent’s hearsay testimony. (770) Defendant received a four level enhancement for being the leader of criminal activity involving five or more participants. The district court properly relied on a government agent’s hearsay testimony concerning the role of one of the alleged participants in the scheme. The agent testified that one witness told him that he was acting under defendant’s direction when he drove a vehicle with defendant and a co-conspirator to a rival’s house. The agent testified that the witness told him that defendant had said they intended to throw pipe bombs at the rival’s house and car. The information was corroborated by defendant’s guilty plea. There was also sufficient evidence that defendant led another co-conspirator. U.S. v. Roach, 978 F.2d 573 (10th Cir. 1992).
10th Circuit upholds reliance on hearsay statements of postal inspectors. (770) The enhancement for obstruction of justice was based on the testimony of two postal inspectors who described defendant’s attempt to influence the testimony of trial witnesses. One inspector testified that he had been contacted by two different witnesses, who related that defendant had called them from prison to threaten then. One of the witnesses also reported that defendant had called his sister. Another inspector testified that he had spoken with the sister and she told him that defendant had called and blamed her brother for defendant’s inability to spend Christmas with his son. The 10th Circuit rejected defendant’s contention that it was improper to rely on this hearsay information without any indication as to why the declarants were unavailable. The right to confront witnesses does not extend to sentencing. Moreover, the testimony was consistent with tapes of the conversations made by the prison. U.S. v. Powell, 973 F.2d 885 (10th Cir. 1992).
10th Circuit relies on documents to prove relationship between defendant and accomplice. (770) Defendant argued that the district court erroneously considered at sentencing two pieces of hearsay evidence that lacked sufficient indicia of reliability. The first item was a series of promissory notes between defendant and an accomplice and ranged in amount from one to 27 million dollars. The second item was a handwritten letter from defendant to the accomplice. The 10th Circuit affirmed the consideration of such items. First, the items were not hearsay under the rules of evidence since they were not offered to prove the truth of the matters asserted therein, but to prove that a relationship existed between defendant and the accomplice. The letter from defendant also constituted an admission against interest. Second, the items, which were seized from the accomplice at his arrest, had sufficient indicia of reliability. U.S. v. Johnson, 971 F.2d 562 (10th Cir. 1992).
10th Circuit upholds consideration of information presented at trial of co-defendants. (770) Defendant contended that in determining he was a leader under section 3B1.1(a), the district court erred by relying in part upon information presented at the trial of his co-defendants. The 10th Circuit upheld the consideration of such information. In making its findings, a district court can use any reliable evidence, including hearsay testimony from a separate trial. U.S. v. Bernaugh, 969 F.2d 858 (10th Cir. 1992).
10th Circuit upholds use of illegally obtained evidence to deny reduction for acceptance of responsibility. (770) Defendant was convicted of transporting a minor across interstate lines for the purpose of engaging in prohibited sexual conduct. The district court denied him a reduction for acceptance of responsibility because he continued to engage in sex with minors while on bail. The identities of the minors were obtained after FBI agents told one of defendant’s friends, in violation of state law, that defendant was infected with the AIDs virus. The 10th Circuit affirmed that the district court could properly rely upon the illegally obtained information to deny defendant a reduction for acceptance of responsibility. The possible deterrent effect of applying the exclusionary rule at sentencing did not outweigh the costs of withholding accurate information from the sentencing judge. There was no evidence that the FBI agents’ actions were intended to secure an increased sentence. U.S. v. Jessup, 966 F.2d 1354 (10th Cir. 1992).
10th Circuit affirms modest upward departure despite failure to state reasons for extent. (770) Defendant pled guilty to one count of bank fraud, with a guideline range of 15-21 months. The court departed upward by five months based on two automobile burglaries which defendant admitted and other criminal conduct that defendant did not admit. The 10th Circuit affirmed the departure, even though the district court failed to state its reasons for the extent of the departure. It was proper for the court to rely on information in the presentence report concerning the uncharged criminal conduct. The government was not required to produce evidence to prove this conduct since defendant did not contest the presentence report at sentencing. The degree of departure, only five months, was clearly reasonable in light of defendant’s substantial additional criminal conduct. Under Williams v. U.S., 112 S.Ct. 1112 (1992), no remand is required if the appellate court is satisfied that the district court would impose the same sentence if required to articulate its reasons. U.S. v. O’Dell, 965 F.2d 937 (10th Cir. 1992).
10th Circuit orders resentencing because probation officer relied on letters without disclosing them to defendant. (770) After defendant plead guilty to various conspiracy and bank fraud charges, the court found two letters from the FDIC alleging that defendant had tampered with witnesses, was capable of paying $6 million restitution with money hidden overseas, was responsible for the brutal rape of a former girl friend, and had laundered money through casinos. The court forwarded the letters to the probation officer but defendant did not receive copies. Prior to sentencing, the court conferred with the probation officer who “promoted” restitution in the amount of $6 million. The court ordered immediate restitution in the amount of $6 million. After sentencing, defendant learned of the letters and moved for resentencing. In denying the motion, the district court specifically stated that the two letters in dispute were not used in determining defendant’s sentence. Nonetheless, the 10th Circuit ordered resentencing, since even if the district court did not rely on the letters, the probation officer clearly relied on them in “promoting” the restitution order. U.S. v. Burger, 964 F.2d 1065 (10th Cir. 1992).
10th Circuit reaffirms that confrontation clause analysis does not apply to sentencing hearing. (770) The 10th Circuit, declining to following the 8th and 6th Circuits, reaffirmed that it did not believe that constitutional provisions regarding the confrontation clause are required to be applied during sentencing proceedings. To hold otherwise would be contrary to the wording of the guidelines and its commentary, and would be an unwarranted and unnecessary burden on the trial court. Reliable hearsay evidence may be used during the sentencing phase without the right of confrontation and cross-examination. As an officer of the court, the probation officer may be considered a reliable source. Also, bankers who furnished information as to possible or probable loss which defendant was attempting to inflict by fraudulent loan applications could be considered reliable sources. In addition, the trial judge was entitled to use the knowledge acquired while presiding over defendant’s trial. U.S. v. Hershberger, 962 F.2d 1548 (10th Cir. 1992).
10th Circuit upholds reliance on co-conspirator’s testimony to estimate drug quantity. (770) Defendant contended that it was error for the district court to base its estimation of the amount of cocaine attributable to defendant upon information from a co-conspirator who was not credible. The 10th Circuit affirmed the drug estimate, ruling that information had sufficient indicia of reliability for the district court to rely on it. The probation officer testified at the sentencing hearing that he relied on the information provided by the co-conspirator on three different occasions to determine that defendant sold between $1,000 and $2,000 worth of cocaine daily. The co-conspirator’s testimony was consistent throughout the proceedings. Moreover, the co-conspirator had previously relayed the same information in an interview with the Assistant U.S. Attorney, and had attested to the veracity of her presentence report, containing the same figures. U.S. v. Cook, 949 F.2d 289 (10th Cir. 1991).
10th Circuit affirms determination of laboratory capacity based on hearsay in presentence report. (770) To establish the lab’s capacity, the presentence report noted that a 22-liter flask and heating mantle were seized from the lab. The report then quoted a DEA chemist, who said that it is “customary” to half-fill a flask with liquid because a heating mantle heats only one-half of the flask. Based on the chemist’s statements, the report then concluded that the lab could manufacture 2.3 kilograms of methamphetamine at a time. Defendant offered no evidence that contradicted the presentence report, nor did he present an expert of his own. The figures were supported by the trial testimony of a DEA expert who identified the flask found in defendant’s home as a 22-liter, round-bottom cook flask that is used with a heating mantle and other equipment to produce methamphetamine. The 10th Circuit affirmed, ruling that because the presentence report figures were supported by trial testimony, the district court’s reliance on those figures did not violate due process. U.S. v. Short, 947 F.2d 1445 (10th Cir. 1991).
10th Circuit says court, not jury, determines drug quantity for mandatory minimum sentencing purposes. (770) Defendant argued that the evidence used in imposing a mandatory minimum sentence under 21 U.S.C. section 841(b)(1)(A) must be presented at trial, and thus it was improper for the district court to determine drug quantity based upon his presentence report. The 10th Circuit found no error. The court noted that the district court had properly relied on the drug quantities in the presentence report in determining the guideline sentence. “We see no meaningful distinction between the [g]uidelines and the drug control statute for purposes of district court findings concerning drug amounts for sentencing purposes.” U.S. v. Short, 947 F.2d 1445 (10th Cir. 1991).
10th Circuit upholds estimating drug quantity based upon testimony of government witness. (770) Defendant argued that the court erred by basing its ruling that he was involved with 500 grams of crack cocaine upon the “speculative and inherently unreliable testimony” of a government witness. The witness testified that defendant and his co-conspirators were awaiting a shipment of approximately five kilograms of crack cocaine and heroin. The 10th Circuit upheld the district court’s ruling since it was supported by testimony other than the disputed testimony. The same government witness also testified that he and defendant had transported “about half a kilo or 18 ounces each time” of crack and that they made about four trips. Any half kilogram, or 500 gram amount, could have satisfied the weight requirement for a base offense level of 36. “Though an estimate, this testimony about the shipments in general comprised the type of evidence of historical transactions that is not inherently unreliable.” The trial judge specifically found the witness to be credible and reliable. U.S. v. Coleman, 947 F.2d 1424 (10th Cir. 1991).
10th Circuit reverses inclusion of uncharged drugs where information was not reliable. (770) The district court held defendant responsible for 3.8 grams of heroin outside the offense of conviction. Although the presentence report detailed defendant’s involvement in several other drug transactions, they did not amount to 3.8 grams. The 10th Circuit remanded for resentencing, since the source of information for the 3.8 grams did not appear in the record. Although hearsay information may be used, some indicia of reliability is required. The court rejected the government’s claim that because defendant did not specifically challenge the reliability of the information, the issue was not preserved for appeal. Defendant did object to the use of the 3.8 grams, and even if defendant did not specifically challenge the reliability of the information, the court should have made an independent determination on the reliability of the evidence. U.S. v. Padilla, 947 F.2d 893 (10th Cir. 1991).
10th Circuit affirms calculation of cocaine based on drug records. (770) When defendant was arrested, agents found two notebooks containing entries appearing to be cocaine sales according to a government agent’s testimony. Defendant’s offense level was calculated based upon the sales represented in the notebooks. Defendant contended that the agent’s interpretation of the entries was “too speculative and conjectural” to sentence him on this basis. The 10th Circuit disagreed. The agent also testified that he had contacted over a dozen of the entries in the notebook and many of the people had admitted that they had purchased the cocaine listed in the notebook from defendant. Although several people also denied buying cocaine from defendant, the evidence was sufficient to corroborate the agent’s theory. U.S. v. Ross, 920 F.2d 1530 (10th Cir. 1990).
10th Circuit finds that use of codefendants’ statements did not breach plea agreement or violate Confrontation Clause. (770) Defendant and the government stipulated that defendant distributed 10 ounces of cocaine. Defendant and his each of his two codefendants later revealed to the probation officer that a significantly larger quantity of cocaine was involved. Defendant’s plea agreement specified that nothing defendant told the government would be used against him. The sentencing judge found that 36 ounces were involved, an amount within the range mentioned by the codefendants and only a small fraction of the quantity disclosed by the defendant. The 10th Circuit found that the use of codefendants’ statements to determine the actual quantity of cocaine involved did not breach defendant’s plea agreement. There was no indication that the codefendants’ statements were elicited as a result of defendant’s plea agreement, and there was no evidence that if defendant had refused to cooperate, his codefendants would have refused to provide information about the correct quantity of drugs involved. The 10th Circuit also rejected defendant’s argument that the use of his codefendants’ statements violated the Confrontation Clause. Defendant was given the opportunity to object to the judge’s determination of the quantity of cocaine involved, and declined to do so. U.S. v. Davis, 912 F.2d 1210 (10th Cir. 1990).
10th Circuit finds that use of codefendants’ statements did not breach plea agreement or violate Confrontation Clause. (770) Defendant and the government stipulated that defendant distributed 10 ounces of cocaine. Defendant and his each of his two codefendants later revealed to the probation officer that a significantly larger quantity of cocaine was involved. Defendant’s plea agreement specified that nothing defendant told the government would be used against him. The sentencing judge found that 36 ounces were involved, an amount within the range mentioned by the codefendants and only a small fraction of the quantity disclosed by the defendant. The 10th Circuit found that the use of codefendants’ statements to determine the actual quantity of cocaine involved did not breach defendant’s plea agreement. There was no indication that the codefendants’ statements were elicited as a result of defendant’s plea agreement, and there was no evidence that if defendant had refused to cooperate, his codefendants would have refused to provide information about the correct quantity of drugs involved. The 10th Circuit also rejected defendant’s argument that the use of his codefendants’ statements violated the Confrontation Clause. Defendant was given the opportunity to object to the judge’s determination of the quantity of cocaine involved, and declined to do so. U.S. v. Davis, 912 F.2d 1210 (10th Cir. 1990).
10th Circuit upholds obstruction of justice on the basis of multiple hearsay. (770) In finding that defendant obstructed justice, the district court relied upon a statement in the presentence report that the probation officer had reviewed an affidavit by a government agent which contained an inmate’s statement that the defendant had threatened two trial witnesses. According to the report, the inmate contacted one of the witnesses, who in turn contacted the government. The 10th Circuit found that the multiple hearsay had sufficient indicia of reliability to be relied upon by the district court. First, the inmate was aware of the witnesses by name, which suggested that the defendant was the source of the threat. Second, the inmate contacted the witness, not the government. It was only when the witness complained to the government that the government became involved. Finally, the statement was consistent with defendant’s denial of involvement in drug distribution, notwithstanding overwhelming evidence to the contrary. U.S. v. Reid, 911 F.2d 1456 (10th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Cruz Camacho, 137 F.3d 1220 (10th Cir. 1998).
10th Circuit upholds denial of acceptance of responsibility for defendant who obstructed justice. (770) Defendant challenged the district court’s failure to reduce his base offense level for acceptance of responsibility. The 10th Circuit found that the district court’s determination was supported by the defendant’s obstruction of justice. Although the evidence that he had threatened certain witnesses was hearsay, the 10th Circuit found that the sentencing court may consider hearsay evidence during sentencing so long as it does not “rely on ‘misinformation of constitutional magnitude.’” U.S. v. Johnson, 911 F.2d 1394 (10th Cir. 1990).
10th Circuit upholds denial of acceptance of responsibility for defendant who obstructed justice. (770) Defendant challenged the district court’s failure to reduce his base offense level for acceptance of responsibility. The 10th Circuit found that the district court’s determination was supported by the defendant’s obstruction of justice. Although the evidence that he had threatened certain witnesses was hearsay, the 10th Circuit found that the sentencing court may consider hearsay evidence during sentencing so long as it does not “rely on ‘misinformation of constitutional magnitude.’” U.S. v. Johnson, 911 F.2d 1394 (10th Cir. 1990).
10th Circuit requires disclosure of summary of in camera material relied upon by court in sentencing. (770) In response to defendant’s motion for exculpatory material, the government provided the district court with material for in camera review. The court found that the in camera material was inculpatory, rather than exculpatory, and denied defendant the opportunity to review it. The court then relied upon the in camera material in sentencing defendant. The 10th Circuit held once a district court decides to rely upon in camera material, defendant must be provided with at least a summary of the material. “Fairness to the defendant in this case requires that he be apprised in detail of the nature of the adverse information on which the court relied in passing sentence. Proper steps can be taken to safeguard the identity of the informant, if that is necessary . . . .” U.S. v. Alvarado, 909 F.2d 1443 (10th Cir. 1990).
10th Circuit holds that review of reasonableness of departure requires district court to explain criteria relied upon. (770) In sentencing a felon in possession of a firearm, the district court imposed a sentence twice the maximum sentence allowed by the guidelines. The court failed to explain why 4 years as opposed to 24 months was a necessary sentence. In a 2-1 decision, the 10th Circuit reversed, holding that for an appellate court to be able to review a departure sentence for reasonableness, it must “have an explanation of why the district court chose the particular magnitude of departure.” The reasoning underlying a departure sentence is required because the appellate court “will not speculate as to how a particular sentence was chosen.” U.S. v. Dean, 908 F.2d 1491 (10th Cir. 1990).
10th Circuit holds testimony from another trial may be used in sentencing hearing. (770) The district court relied on testimony given during the trial of defendant’s co-conspirators to find that the defendant was an “organizer or leader” of a criminal activity. Although defendant did not object at the sentencing hearing, defendant argued on appeal that considering testimony from a separate trial as evidence at defendant’s sentencing was fundamental error. The 10th Circuit disagreed, holding that “reliable hearsay – including testimony from a separate trial – may be used at sentencing to determine the appropriate punishment.” The testimony introduced bore sufficient indicia of reliability to warrant its use at sentencing. The court rejected the holding in U.S. v. Castellanos, 882 F.2d 474 (11th Cir. 1989) in which the 11th Circuit held that testimony from the trial of another could not be used in sentencing a defendant. In support of its holding, the 10th Circuit commented that a defendant at sentencing does not have an absolute right to confront witnesses, the sentencing guidelines do not require exclusion of testimony from a separate trial and the Federal Rules of Evidence do not apply at sentencing. U.S. v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990).
11th Circuit holds that Florida false imprisonment conviction was not crime of violence. (770) Defendant received an enhancement based on the district court’s finding that his prior Florida conviction for false imprisonment was a crime of violence under §2L1.2(b)(1) (A)(ii). The Eleventh Circuit reversed. False imprisonment under Florida law encompassed several distinct crimes, some of which qualified as crimes of violence and others of which did not. The documents provided by the government did not establish that defendant’s offense was a crime of violence. Such documents must “be confined to records of the convicting court approaching the certainty of the record of conviction.” Shepard v. United States, 544 U.S. 13 (2005). Thus, the court could not rely on the Florida arrest affidavit, which was originally intended only to assess probable cause for a prosecution. The court also could not rely on the PSR, since defendant clearly objected to the factual accuracy of its description of the conduct underlying his false imprisonment conviction. The remaining documents introduced by the government were insufficient to support a crime of violence finding since they simply recited the elements of the offense. U.S. v. Rosales-Bruno, 676 F.3d 1017 (11th Cir. 2012).
11th Circuit says asking defendant if he still maintained he did nothing wrong was not plain error. (770) At sentencing, after defendant’s allocution, the district court asked him whether he still “maintain[ed] that [he] did nothing wrong?” Through counsel, defendant declined to respond. Defendant contended that the court’s question infringed upon his Fifth Amendment privilege against self-incrimination. The Eleventh Circuit did not address that question because the alleged error did not affect defendant’s substantial rights. In his allocution, defendant attempted to portray himself in a favorable light, alluding to what he had learned from his experience in custody, and his plan to leave prison a better person. Conspicuously absent from his allocution was any acknowledgment of the offenses for which he had been convicted, or any semblance of remorse. That, coupled with defendant’s trial testimony in which he maintained he had done nothing wrong, prompted the court’s inquiry. Defendant’s lack of remorse, coupled with his false trial testimony, obstructive conduct during the investigation, and what the court described as his “arrogance and contempt for the law,” justified the sentence imposed, which was at the low end of the Guidelines range. U.S. v. Barrington, 648 F.3d 1178 (11th Cir. 2011).
11th Circuit affirms refusal to give dispositive weight to third polygraph that contradicted jury’s verdict. (770) The district court applied an obstruction of justice increase, finding that defendant “blatantly lied” during her testimony at trial. She argued that the district court erred by refusing to consider the exculpatory results of a post-verdict polygraph examination. The Eleventh Circuit found no error. The district court did not “refuse to consider” the polygraph test. The court’s ruling was better understood as a refusal to give dispositive weight to the results of defendant’s third polygraph test. It was not a blanket prohibition on considering the exams, but instead a finding that the evidence that defendant gave perjured testimony was so overwhelming that no polygraph could sway the district court’s decision, especially not a third exam taken after the first two were inconclusive. The court did not err in refusing to give the third polygraph dispositive weight when it directly contradicted the jury’s verdict. U.S. v. Mateos, 623 F.3d 1350 (11th Cir. 2010).
11th Circuit rejects challenge to use of hearsay evidence and voice identification testimony. (770) The Eleventh Circuit rejected defendant’s challenge to the district court’s consideration of three types of evidence. First, defendant argued that the court should not have considered the voice identification testimony of two couriers used to pick up and transfer the proceeds from two different frauds. However, the couriers’ voice identification was merely corroborative of defendant’s statements and unnecessary to the court’s finding that defendant perpetrated these frauds. The court also properly considered statements of Sena that came into evidence through the testimony of an investigative agent. Sena acted as a conduit for one of the frauds, and told the agent about deposits into his bank account and subsequent transfers to defendant. The court found these statements were sufficiently reliable because they were corroborated by deposit records, photos from the bank’s surveillance cameras, and defendant’s own statements. Finally, the court properly considered the written statements from two convicted felons, who described their relationship with defendant. The government offered the statements for the limited purpose of showing that defendant knew the felons. U.S. v. Ghertler, 605 F.3d 1256 (11th Cir. 2010).
11th Circuit bars use of police reports to determine if crimes were committed on different occasions. (770) The PSR found that defendant was an armed career criminal under § 924(e)(1) based on three prior Alabama drug convictions. To prove that the offenses occurred on occasions separate from one another, the government submitted a copy of the state indictments. None of the counts contained dates, times or locations for the offenses, but the government also submitted copies of police reports for each state offense. The police reports indicated that each of the three offenses occurred on two different dates and at three different times. The government argued that under U.S. v. Richardson, 230 F.3d 1297 (11th Cir. 2000), the district court could examine police report to determine whether qualifying predicate felonies were separate for purposes of the ACCA. The Eleventh Circuit found that Richardson was abrogated by Shepard v. U.S., 544 U.S. 13 (2005), and ruled that the court could not use the police report to determine whether defendant’s prior convictions were committed on different occasions. Although Shepard involved the “violent felony” phrase in § 924(e) and did not address the “different occasions” phrase, it nonetheless undermined Richardson’s approval of the use of police reports. U.S. v. Sneed, 600 F.3d 1326 (11th Cir. 2010).
11th Circuit relies on hearsay to support obstruction increase for threatening phone call. (770) Defendant argued that the court erred when it enhanced his sentence based on obstruction of justice. The enhancement was based on a threatening phone call defendant made to a co-conspirator’s girlfriend. In addition to the testimony of the co-conspirator at trial about the threat, a government agent testified at sentencing that he spoke with the co-conspirator and his girlfriend about the phone call. Defendant admitted in his sentencing memo and at sentencing that he contacted the girlfriend twice by telephone and was upset about his best friend testifying against him. However, defendant denied making any threats. The Eleventh Circuit found this evidence sufficient to support the obstruction increase. The reliability of the hearsay evidence about defendant’s threat was apparent from the record. The agent’s testimony about his conversation with the girlfriend was corroborated by the co-conspirator’s testimony during trial, and this evidence was bolstered by defendant’s admissions that he made two phone calls to the girlfriend, and apologized in the second call for what was said during the first conversation. U.S. v. Docampo, 573 F.3d 1091 (11th Cir. 2009).
11th Circuit finds insufficient evidence that defendant was responsible for 300 guns and a stolen gun. (770) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Eleventh Circuit agreed with defendant that there was insufficient evidence to support the district court’s findings that he was responsible for over 300 firearms and a stolen firearm. The government relied on various documents seized at defendant’s property. However, none of these documents were made part of the record at sentencing. The only other evidence related to the number of firearms was hearsay from a confidential informant. However, to rely on hearsay at sentencing, the district court must make explicit findings as to the credibility and reliability of these statements. The district court failed to make any findings regarding these hearsay statements. Similarly, the government failed to present any evidence that one of defendant’s firearms was stolen. Thus, the district court committed clear error by improperly calculating defendant’s sentencing range. U.S. v. Anton, 546 F.3d 1355 (11th Cir. 2008).
11th Circuit says court did not err in relying on undisputed facts in PSR to determine burglaries were violent felonies. (770) The district court sentenced defendant under the Armed Career Criminal Act based in part on the court’s finding that his prior Georgia burglary conviction was a violent felony. Defendant argued that because Georgia’s burglary statute was non-generic, the court was required by Shepard v. U.S., 544 U.S. 13 (2005) to find that his prior convictions contained all of the elements of generic burglary using only appropriate court records from those prior convictions. He contended that the PSR relied on by the court was not a permissible source under Shepard. The Eleventh Circuit held that the district court properly relied on the PSR to classify the burglaries as violent felonies. The PSR indicated that court documents of defendant’s prior burglaries showed that his burglaries were of either residential or commercial buildings, and defendant never disputed that the court documents showed these facts. Because defendant never objected to the facts of his prior convictions as contained in his PSR and addendum, he was deemed to have admitted those facts. The Eleventh Circuit held that the district court did not err in relying on the undisputed facts in defendant’s PSR to determine that his prior convictions were violent felonies under the ACCA and, therefore, that he was an armed career criminal. U.S. v. Bennett, 472 F.3d 825 (11th Cir. 2006).
11th Circuit holds that court erred in relying on information where defendant pled guilty to different offense than charged in the information. (770) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced as an armed career criminal, 18 U.S.C. § 924(e)(1). He argued that his 1989 burglary conviction should not be considered a conviction for a violent felony, noting that while he was charged with second-degree burglary and the information stated that he unlawfully entered a structure with intent to commit a theft, he was not convicted of that crime. Instead, he pled guilty to third-degree burglary, which under Florida law could be committed by entry into an unoccupied structure, including the curtilage of that unoccupied structure. The Eleventh Circuit held that the district court erred in relying on the information to find that the conviction was for generic burglary. The information charged a crime (second degree burglary) which was different than the one to which defendant pled guilty (third degree burglary). U.S. v. Day, 465 F.3d 1262 (11th Cir. 2006).
11th Circuit holds that drug amounts were not derived from defendant’s debriefing. (770) Defendant argued that the drug quantity attributed to him at sentencing was derived from information he provided to the government as part of his plea agreement, in violation of U.S.S.G. § 1B1.8. He claimed that § 1B1.8 required that any corroboration of his statements given pursuant to a plea agreement must have been before the entry of the agreement and therefore, because the government’s evidence of drug weight was the same as the statements given by defendant, his sentence must be vacated. The Eleventh Circuit held that so long as the information is obtained from independent sources or separately gleaned from co-defendants, it may be used at sentencing without violating § 1B1.8. The government offered a DEA agent’s testimony which showed that, while defendant told authorities about the drug quantities transferred to North Carolina, that information was not provided in any way to Nguyen, who later corroborated defendant’s statement regarding drug quantity in an interview. There was no evidence that the DEA agent induced Nguyen to discuss those drug quantities by using defendant’s statements or that Nguyen would not have told authorities about those drug quantities absent defendant’s cooperation and agreement. The district court did not clearly err by finding that the drug quantity was based on statements other than defendant’s. U.S. v. Pham, 463 F.3d 1239 (11th Cir. 2006).
11th Circuit holds that prosecutor’s breach of plea agreement met plain error test. (770) Pursuant to a plea agreement, defendant pled guilty to being a felon in possession of a firearm, and the court dismissed a count of possession of a destructive device. The probation officer recommended two enhancements which the parties had not contemplated in the plea agreement because they related to the dismissed count. At sentencing, the prosecutor acknowledged that, in negotiating the plea agreement, the parties had not contemplated that defendant’s base offense level would be enhanced for conduct that related to the dismissed count, but nonetheless urged the court to apply the two guideline enhancements, and the court did so. On appeal defendant argued, and the government conceded, that the prosecutor breached the plea agreement by urging the court to consider information wholly unrelated to the count of conviction. However, the government pointed out that defendant failed to raise this issue before the district court. The Eleventh Circuit found that the error was plain, that the use of the higher guideline range affected defendant’s substantial rights, and seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Therefore, it vacated and remanded for further proceedings. U.S. v. Romano, 314 F.3d 1279 (11th Cir. 2002).
11th Circuit rejects downward departure where only support was defense counsel’s allegations. (770) Defendants stole over $800,000 in rare coins from a dealer. The parties sought to reach plea agreements whereby defendants would receive reduced sentences in exchange for a return of the remaining coins. Defendants missed the deadline for returning the coins, and eventually pled guilty to all charges. Before sentencing, some of the stolen coins were returned to a police station by a person or persons unknown. Defendants then filed motions for downward departures, claiming that they were responsible for arranging the return of the coins via a third party. The district court agreed that defendants’ voluntary restitution and return of stolen property post-adjudication was extraordinary, and granted them a two-level downward departure. The Eleventh Circuit reversed, since there was no evidence in the record to support a finding that defendants were responsible for the returns of the coins. The only evidence to support this theory was the allegations of defense counsel at sentencing, but such allegations were an insufficient basis upon which to grant a downward departure. U.S. v. Kapelushnik, 306 F.3d 1090 (11th Cir. 2002).
11th Circuit upholds reliance on stepdaughter’s testimony about sexual abuse. (770) Defendant was convicted of possessing and transporting child pornography. He argued that the evidence the court relied on in imposing a USSG § 2G2.2(b)(1) enhancement was unreliable. The evidence came from his former stepdaughter, who recounted numerous instances, from ages eight and 14, in which defendant sexually abused her. The Eleventh Circuit found no found no fault in the court’s decision to believe the girl, and rejected defendant’s challenge. U.S. v. Richardson, 304 F.3d 1061 (11th Cir. 2002).
11th Circuit limits information judge may consider in sentencing within guideline range. (770) The district court sentenced defendant at the high end of the guideline range – six months – to penalize her for refusing to cooperate in the case against her husband. The Eleventh Circuit reversed, holding that penalizing a defendant for this reason “simply does not achieve any of the goals set forth in [18 U.S.C.] § 3553(a)(2), and consequently, exceeds the district court’s sentencing discretion.” The panel acknowledged that 18 U.S.C. § 3661 and guideline § 1B1.4 authorize a court to consider “without limitation any information concerning the background, character, and conduct of the defendant.” But the court held that this language is constrained by 18 U.S.C. § 3553(a)(2) which codifies four sentencing objectives courts must take into account in fashioning a sentence, and 28 U.S.C. §§ 991-998, which limit the discretion of the Sentencing Commission “and, necessarily, the discretion of sentencing judges.” The court said that these sections require any consideration of offense or defendant characteristics to bear some “relevance to the nature, extent, place of service, or other incidents (sic) of an appropriate sentence.” Here, the court said “[w]e cannot imagine how [defendant’s] cooperation with the government in the case against her husband could possibly bear on the length of her incarceration.” U.S. v. Burgos, 276 F.3d 1284 (11th Cir. 2001).
11th Circuit upholds use of hearsay to support obstruction increase. (770) The district court applied an obstruction of justice increase based on hearsay testimony that defendant threatened an unindicted co-conspirator. The Eleventh Circuit held that the district court properly considered the hearsay evidence. A district court may rely on such evidence “as long as the evidence has sufficient indicia of reliability, the court makes explicit findings of fact as to credibility, and the defendant has an opportunity to rebut the evidence.” The district court found that the testifying agent was a credible witness, and there was ample evidence to corroborate the testimony. In addition, both parties had an opportunity to submit their arguments to the court before a ruling on the enhancement was entered. U.S. v. Zlatogur, 271 F.3d 1025 (11th Cir. 2001).
11th Circuit relies on hearsay from co-defendants. (770) Defendant argued that the district court improperly used unreliable hearsay statements by his co-defendants to support a § 3B1.1(c) enhancement for his leadership role in the robbery and an upward departure under §§ 2K2.3 and 5K2.8 due to the psychological injury suffered by the store clerk and the severity of defendant’s own conduct. The three co-defendants stated consistently that it was defendant who placed the store clerk in a chokehold and dragged her to the rear of the store. The co-defendants also stated that defendant drove the car, gave orders inside the store, and otherwise acted as leader of the robbery. Defendant contended that these statements were unreliable because (1) they served to shift the blame from the co-defendants and onto defendant; (2) two of the co-defendants claimed at one point that their statements were coerced; and (3) the two did not testify at trial or at sentencing. The Eleventh Circuit held that these objections did not establish reversible error. Defendant had adequate opportunity to discredit two of the co-defendants by calling them as witnesses at sentencing, but failed to do so. The hearsay had sufficient indicia of reliability. Although the three co-defendants may have had an interest in shifting the primary blame to defendant, each of the co-defendant’s statements was consistent regarding defendant’s role in the offense and his conduct towards the store clerk. The clerk’s trial testimony that the same man choked and assaulted her further corroborated the co-defendants’ statements that defendant alone choked and assaulted the clerk. Given this corroboration, the district court’s failure to make separate findings regarding the reliability of the statements was not error. U.S. v. Gordon, 231 F.3d 750 (11th Cir. 2000).
11th Circuit finds evidence of prior conviction sufficiently reliable. (770) Defendant objected to the inclusion in his PSR of a prior conviction for carrying a concealed weapon, claiming he had no recollection of the conviction. The probation officer who prepared the PSR was not present at sentencing. However, the district court questioned the substitute probation officer extensively regarding this conviction. The officer answered the questions by reviewing the notes of his predecessor, who had traveled to the municipal court building to confirm defendant’s prior conviction through a review of court documents. His predecessor also obtained a copy of the arrest record. The district court found that defendant had been fined for this offense, and therefore he must have been found guilty of it. The Eleventh Circuit found no clear error in the district court’s finding. A court may consider any information, regardless of its inadmissibility at trial, in determining whether factors exist that would enhance a defendant’s sentence, provided that the information is sufficiently reliable. Although a certified copy of the conviction is best, the sources the district court relied upon, when taken together, were sufficiently reliable. U.S. v. Wilson, 183 F.3d 1291 (11th Cir. 1999).
11th Circuit approves reliance on undisputed, but conclusory, statements in PSR to calculate fraud loss. (770) Defendant, a registered representative of several brokerage firms, participated in a conspiracy to fraudulently inflate the price of a particular stock and sell the overvalued stock to the public. He contended that the court improperly relied on conclusory statements in the PSR to sentence him based on the entire loss caused by a scheme. The Eleventh Circuit held that the court properly relied on the PSR’s conclusory statements, since defendant did not object to them. These undisputed statements supported the court’s finding that defendant caused, or reasonably foresaw, the acts that resulted in a $92 million loss because they established that he played an important role in the overall conspiracy. Defendant helped disseminate false information that created a market for the worthless stock, and played a central role in selling the conspirators’ stock and covering up their illegal activities. The district court correctly sentenced defendant based on the actual $92 million loss, even though defendant claimed this was greater than the amount he believed would result from the scheme. Section 2F1.1 loss is not limited by the amount defendant knew would be inflicted. U.S. v. Hedges, 175 F.3d 1312 (11th Cir. 1999).
11th Circuit upholds drug quantity finding based on co-conspirator’s statement. (770) The district court found defendant accountable for between 50 and 150 kilograms of cocaine. This was based on a co-conspirator’s statement that he sold defendant two kilograms a week during the time they knew each other. Defendant claimed the evidence only showed that he received two kilograms twice, for a total of four kilograms. The Eleventh Circuit affirmed. At sentencing, a government agent testified that the co-conspirator told him that during the time frame of the conspiracy, he supplied defendant with about 100 kilograms of cocaine, delivering five or six kilograms on a monthly basis. While defendant might doubt the veracity of the co-conspirator’s statements, he made no showing that the district court’s credibility assessment was clearly erroneous. U.S. v. Glinton, 154 F.3d 1245 (11th Cir. 1998).
11th Circuit upholds reliance on grand jury testimony rather than trial testimony. (770) Defendant and his ex-wife engaged in an extensive marijuana distribution conspiracy involving thousands of pounds of marijuana. One buyer testified in the grand jury that she and her husband purchased a total of 1200 pounds from defendant. Defendant argued that it was wrong to rely on this grand jury testimony because the husband testified to a smaller quantity at trial, while the buyer was only questioned about individual purchases. The Eleventh Circuit upheld the district court’s reliance on the buyer’s grand jury testimony rather than her husband’s trial testimony. The district judge was in the best position to make a credibility choice regarding which of the two buyers gave a more accurate estimate of the total amount of marijuana that they obtained from defendant. U.S. v. Alred, 144 F.3d 1405 (11th Cir. 1998).
11th Circuit approves consideration of co-conspirator’s hearsay statement to DEA agent. (770) Defendant was convicted of aiding and abetting a conspiracy to possess with intent to distribute cocaine powder and crack cocaine, in violation of 21 U.S.C. § 841(a). Defendant argued that in determining drug quantity, the court improperly relied on a co-conspirator’s statement to a DEA agent that defendant was present on two occasions when a kilogram of powder was cooked into crack. The Eleventh Circuit affirmed the court’s reliance on the hearsay statement of the co-conspirator. A sentencing judge may consider hearsay at sentencing. Although defendant argued that the co-conspirator was biased because he was seeking a substantial assistance reduction, this allegation by itself was not enough to call into question the judge’s consideration of the statement. Moreover, even excluding the co-conspirator’s testimony, another conspirator gave testimony that supported attributing more than 1.38 kilograms of crack to defendant. U.S. v. Riley, 142 F.3d 1254 (11th Cir. 1998).
11th Circuit approves use of hearsay to support upward departure. (770) Defendant husband and wife were convicted of receiving child pornography and related charges. The district court departed upward based on defendant’s abuse of his five-year old stepdaughter. Defendant argued that the evidence of this abuse, introduced through a state child abuse investigator’s testimony, was unreliable hearsay and therefore, not a proper basis for a departure. The Eleventh Circuit upheld the use of the hearsay testimony. A court may rely on hearsay at sentencing, as long as it has sufficient indicia of reliability, the court makes explicit credibility findings, and the defendant has an opportunity to rebut the evidence. Defense counsel had the opportunity to cross-examine the investigator. Additionally the court made explicit findings as the credibility of the investigator’s testimony and the reliability of the stepdaughter’s statements. U.S. v. Anderton, 136 F.3d 747 (11th Cir. 1998).
11th Circuit finds no error in using agent’s hearsay testimony concerning bank’s loss. (770) Defendant robbed three banks. The Eleventh Circuit found no error in the district court’s reliance on the hearsay testimony of a special agent as to the amount of loss suffered by one of the banks. Defendant did not show that the testimony was materially false or unreliable. The special agent based his testimony on his recollection of the bank auditor’s report prepared on the day of the robbery. It is the type of evidence routinely relied upon by the FBI in determining amounts stolen from banks. However, since the matter was being remanded for other reasons, the district court could revisit the amount of restitution, since it would be a simple matter for the special agent to obtain the auditor’s report or for the auditor to testify. U.S. v. Bourne, 130 F.3d 1444 (11th Cir. 1997).
11th Circuit directs court to make findings on reliability of hearsay. (770) In calculating the drugs attributable to defendant, the district court relied on the statement of one of defendant’s co-conspirators. The co-conspirator made the statement to a DEA agent before defendant’s trial. At the time of trial and sentencing, the co-conspirator was a fugitive from justice and not available to testify. The co-conspirator’s hearsay statement was the only evidence of the large amount of drugs attributable to defendant. The Eleventh Circuit directed the district court to make further findings as to the reliability of the hearsay statement. The fact that the statement was against the co-conspirator’s penal interest was insufficient, particularly in light of his fugitive status. The district court’s statement did not reveal the reasons that led it to conclude that the hearsay was reliable. Specific findings on credibility were necessary before the district court could use this evidence. The fact that other witnesses were drug users did not prove that they were unreliable. The court had the opportunity to observe these witnesses at trial. U.S. v. Lee, 68 F.3d 1267 (11th Cir. 1995).
11th Circuit finds judge did not rely on suppressed evidence from presentence report. (770) Defendant argued that the inclusion of suppressed evidence in his PSR violated his constitutional rights. The Eleventh Circuit found no reversible error since the sentencing judge did not consider the suppressed evidence. Cases cited by the government in favor of considering suppressed evidence at sentencing concern 4th Amendment violations. Evidence obtained in violation of the 5th and 6th Amendments is “inherently suspect.” Nonetheless, because the judge did not consider the suppressed evidence, there was no constitutional violation. U.S. v. Delgado, 56 F.3d 1357 (11th Cir. 1995).
11th Circuit affirms drug quantity based on defendant’s admissions at plea hearing. (770) The 11th Circuit affirmed the district court’s finding that defendant’s offense involved two kilograms of cocaine based on defendant’s admissions during his plea hearing. U.S. v. Mylor, 971 F.2d 706 (11th Cir. 1992).
11th Circuit upholds consideration of information from related case. (770) Defendant argued that the district court departed upward because his offense was part of the corruption in the sheriff’s office, and that this was improper because the court learned of this from another case in which defendant was not a party. The 11th Circuit found no error. First, although the sentencing court stated that the corruption was an additional aggravating factor, it then stated that it would not add any additional enhancement because of that fact. Second, defendant had sufficient notice to have responded to this information. The presentence report noted that defendant’s father was involved in drug trafficking and was making payments to members of the sheriff’s department for protection, and that defendant, a prison inmate, was being supplied drugs by his father. Third, there was testimony in defendant’s trial indicating that deputies working in the jail knew about drug abuse among inmates but took no action to end it. U.S. v. Ponder, 963 F.2d 1506 (11th Cir. 1992).
11th Circuit upholds drug quantity despite inconsistency between trial and grand jury testimony. (770) An informant testified that defendants had acquired two kilograms on a trip to Miami in November and three kilograms on a second trip to Miami in December. Defendants contended that the informant’s testimony was unreliable because he testified before the grand jury that three kilograms were involved in the first Miami trip and two kilograms were involved in the second Miami trip. The 11th Circuit upheld the district court’s determination, finding that the court allowed for the witness’ inconsistent testimony. The court found that the December acquisition involved two kilograms, which was added to the two kilograms from the November trip, plus the negotiation involving one kilogram. Thus the cumulative amount was five kilograms. U.S. v. Griffin, 945 F.2d 378 (11th Cir. 1991).
11th Circuit upholds reliance on hearsay to determine that drug was crack cocaine. (770) Defendants contended that the district court relied upon unreliable hearsay to determine that the two transactions in which they participated involved crack cocaine rather than powder cocaine. The lab report merely indicated that the drug was cocaine, but did not state the type or form of cocaine. A state agent advised the court that the chemist who analyzed the cocaine told him that he did not make such a determination because state law did not distinguish between the two drugs. The 11th Circuit upheld the district court’s determination that the drug involved was crack cocaine. Defendants represented to the informant that the drug they were giving to him was crack, and the informant so advised the state agent when he gave the drug to the agent. The agent testified that the drug had the consistency of crack. U.S. v. Griffin, 945 F.2d 378 (11th Cir. 1991).
11th Circuit affirms obstruction enhancement based upon hearsay evidence that defendant threatened co-conspirator. (770) Defendant’s presentence report alleged that defendant threatened a co-conspirator and his family early in the planning stages of their conspiracy if the co-conspirator failed to follow through with their plan, and threatened him again while they were in prison awaiting sentencing. Defendant denied the allegations at the sentencing hearing and the co-conspirator did not testify. Nonetheless, the district court gave defendant a two-level enhancement for obstruction of justice based upon these allegations. The 11th Circuit found no error in the enhancement, despite the district court’s reliance upon the hearsay statements in the presentence report. Circuit case law clearly permitted the court to consider reliable hearsay evidence at sentencing. Application note 2 to guideline section 3C1.1, which requires that suspect testimony and statements be evaluated in a light most favorable to the suspect, did not require the district court to credit defendant’s testimony on this matter. U.S. v. Kramer, 943 F.2d 1543 (11th Cir. 1991).
11th Circuit upholds consideration at sentencing of illegally seized handguns. (770) The 11th Circuit affirmed the district court’s consideration at sentencing of handguns which had been illegally seized in violation of the 4th Amendment. It found that the potential costs to sentencing proceedings outweighed the benefits to Fourth Amendment principles. Excluding such reliable information from sentencing would frustrate federal policy that judges consider all relevant and reliable facts in order to assure that each defendant receives an individualized sentence. In contrast, the benefit of excluding such evidence was slight: “[i]t is unrealistic to assume that the threat that a future sentence might be less severe would significantly deter . . . lawlessness.” U.S. v. Lynch, 934 F.2d 1226 (11th Cir. 1991).
11th Circuit affirms reliance upon co-defendant’s testimony as to quantity of cocaine possessed by defendant. (770) Defendant was convicted of distributing 11.9 grams of cocaine to a co-defendant. The district court sentenced defendant on the basis of 90 grams, based the co-defendant’s testimony that defendant had in his apartment 362 packets of cocaine base. Defendant challenged the district court’s reliance upon this testimony, since the co-defendant had also testified that the bag of cocaine defendant gave to her contained 62 packets of cocaine, when in fact it had contained 92. The 11th Circuit upheld the district court’s reliance upon this testimony. “The district court, having listened to all of the testimony, chose to accept, [the co-defendant’s] testimony as to the total amount of cocaine [defendant] had in his possession. We cannot find error in that credibility choice absent a stronger showing than [defendant] put forward here.” U.S. v. Bennett, 928 F.2d 1548 (11th Cir. 1991), superseded on other grounds by guideline as stated in U.S. v. Smith, 127 F.3d 1388 (11th Cir. 1997).
11th Circuit permits reliance upon hearsay statement in presentence report. (770) The 11th Circuit rejected defendant’s contention that the district court erred in relying upon inadmissible hearsay to resolve disputed factual findings contained in the presentence report. Both the guidelines and circuit case law permit a district court to consider reliable hearsay evidence at sentencing. Defendant was given an opportunity at sentencing to challenge the evidence against him, and did not show that the hearsay statements considered by the court were unreliable. U.S. v. Query, 928 F.2d 383 (11th Cir. 1991).
11th Circuit says court may use acquitted conduct in sentencing manslaughter defendant. (770) Defendant contended that since he had been acquitted of involuntary manslaughter, which requires reckless conduct, and convicted of DUI manslaughter, which only requires a lack of care, his conduct should not have been classified as reckless for sentencing purposes. The 11th Circuit rejected this contention, noting that a district court is free to consider conduct for which defendant was acquitted. However, in this case, the district court did not make an independent determination, but relied on a misinterpretation of state law. Therefore, the case was remanded for the district court to make an independent determination as to whether defendant’s conduct should have been classified as reckless or criminally negligent. U.S. v. Sasnett, 925 F.2d 392 (11th Cir. 1991).
11th Circuit remands for resentencing where court failed to follow procedural safeguards. (770) At the time defendant entered his plea, the district court had held the guidelines unconstitutional. The 11th Circuit ordered resentencing because the district court failed to follow many of the procedural safeguards required by the guidelines. First, the court made no findings of fact regarding the amount of cocaine. Second, even assuming that the court determined that 15 kilograms of cocaine were involved, that conclusion was clearly erroneous. The presentence report only contained a conclusory statement to this effect. No evidence was introduced at the sentencing hearing regarding the amount. To the extent that the 15 kilogram finding was based upon testimony offered at the trial of certain co-defendants, the evidence could not be used, without more, in light of defendant’s objection. U.S. v. Christopher, 923 F.2d 1545 (11th Cir. 1991).
11th Circuit holds that district court may consider uncharged conduct. (770) Defendant’s base offense level for the delivery of counterfeit notes was calculated by including 1.1 million dollars in counterfeit notes which defendant was not charged with delivering. The 11th Circuit held that a sentencing court can rely on offense conduct not charged in an indictment to calculate a defendant’s sentence, provided the defendant had notice of the government’s intention to present at the sentencing hearing evidence of such other conduct. U.S. v. Ignancio Munio, 909 F.2d 436 (11th Cir. 1990).
11th Circuit vacates its ruling that evidence presented at trial of another party cannot be used in sentencing. (770) In its original opinion, the 11th Circuit stated that “The evidence presented at a trial of [another party] .ÿ.ÿ. cannot be used to fashion appellant’s sentence any more than could testimony adduced at a narcotics trial in another jurisdiction.” On rehearing, the court found it unnecessary to reach that issue. Nevertheless, the court explained that it “was never the position of this panel that a sentencing court may not consider testimony from the trial of a third party as a matter of law.” Rather, such evidence “may not– without more– be used to fashion a defendant’s sentence if the defendant objects.” That is, “a sentencing court must follow the procedural safeguards incorporated in § 6A1.3 of the guidelines– safeguards designed to protect the defendant’s right to respond to information offered against him and to ensure reliability of the information.” U.S. v. Castellanos, 904 F.2d 1490 (11th Cir. 1990).
11th Circuit reverses heroin sentence where method of calculating amount of heroin was unclear. (770) The sentencing court concluded that at least 100 grams of heroin were implicated. However “great discrepancy appeared in the trial record describing the method of weighing the heroin by spoons.” Thus the 11th Circuit stated that it was “unable to determine whether the sentencing court made a finding of fact on the record once the amount of heroin was controverted.” Accordingly the sentences were vacated and remanded for the purposes of conducting an evidentiary hearing “that will examine carefully the evidence received at trial regarding the weight of heroin.” U.S. v. Davis, 902 F.2d 860 (11th Cir. 1990).
D.C. Circuit upholds sentence for conspiracy despite acquittal. (770) A jury convicted defendants of distributing small quantities of crack cocaine, but acquitted them of conspiracy to distribute drugs. At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and sentenced them to terms of imprisonment ranging from 15 to nearly 19 years. They argued that it was clear error for the district court to find that they had formed an agreement with members of the Congress Park Crew to distribute crack. They claimed that the court improperly credited the testimony of cooperators, pointing to evidence that the cooperators repeatedly deceived authorities, perjured themselves, framed loved ones, abused drugs, breached plea agreements, and took money from the government. The D.C. Circuit found no error. Despite these facts, it was implausible for the district court to credit particular aspects of the witnesses’ testimony, especially where, as here, the cooperators offered mutually corroborative accounts that defendants associated with named conspirators, sold crack in Congress Park during the period of the conspiracy, shared sales proceeds with other conspirators, and protected their control of the Congress Park drug trade against outside competitors. U.S. v. Jones, 744 F.3d 1362 (D.C. Cir. 2014).
D.C. Circuit approves consideration of facts underlying nolo contendere conviction. (770) Defendant was convicted of illegal reentry after deportation following a felony conviction. The district court applied a 16-level enhancement and sentenced him to 84 months based on its finding that defendant’s Virginia abduction conviction was a crime of violence. On appeal, the D.C. Circuit reversed. On remand, the district court calculated defendant’s guideline range as 33-41 months, but then varied upward to the same 84-month sentence. On appeal, defendant argued that the district court erred by considering the underlying facts of his Virginia abduction conviction because he pled nolo contendere and therefore did not admit the underlying facts of the offense. The D.C. Circuit rejected this argument. If a sentencing court may find facts related to acquitted or untried conduct, then it may find facts charged in an indictment to which a defendant pleaded nolo contendere. Further, Rule 32(f)(1) allows 14 days for a defendant to “state in writing any objections, including objections to material information” contained in a PSR. Defendant failed to do so, and consequently, the district court properly accepted the PSR’s findings as fact. U.S. v. Ventura, 650 F.3d 746 (D.C. Cir. 2011).
D.C. Circuit reverses for failure to consider defendant’s allocution at sentencing. (770) Defendant argued that the district court misunderstood its discretion to consider his allocution at sentencing. The D.C. Circuit agreed and remanded. At sentencing, the court had said that “decisions were made based on the testimony that was provided. And obviously the information … that you’ve provided [at sentencing] … is not something that’s on the record…. [B]oth the court and the jury makes a decision based on what the record is.” In fact, a court can consider the defendant’s post-trial statement in crafting his sentence. Defendant’s allocution was relevant to his background, character, and the conduct for which he was sentenced, being a felon in possession of a firearm. Defendant’s sentence “might likely have been different” if the sentencing judge had considered defendant’s description of his minimal responsibility for the gun, the brief time that it was in his proximity, and his generous impulse toward his daughter and her fiancé. No evidence in the record conveyed defendant’s unique perspective on the relevant events. U.S. v. Anderson, 632 F.3d 1264 (D.C. Cir. 2011).
D.C. Circuit upholds reliance on state computer records to prove prior convictions. (770) Defendant’s 150-month bank robbery sentence was based, in part, on the district court’s finding that his criminal history included four theft convictions in Maryland. Defendant argued that the state computer records relied on by the district court were insufficient to prove prior convictions. The D.C. Circuit disagreed. Certified records of a state court are presumptively reasonable. Although there is a possibility of human error in data entry, this did not warrant the conclusion that these records, maintained and certified by a state court, were inherently unreliable. Defendant was given the opportunity by the district court to contest the records’ accuracy, but he declined. Although for the first time on appeal defendant pointed to a minor discrepancy between the computer record and the PSR’s description of the same offense, defendant alleged no other discrepancies, and the single alleged inaccuracy was not demonstrative evidence of the records’ general unreliability. U.S. v. Carter, 591 F.3d 656 (D.C. Cir. 2010).
D.C. Circuit considers arrest record as one factor warranting sentence at top of guideline range. (770) The district court imposed a sentence at the high end of defendant’s guideline range based on its consideration of numerous factors, including defendant’s arrest record. Defendant argued that § 4A1.3(a)(3), which provides that a prior arrest record shall not be considered for purposes of an upward departure, and caselaw interpreting § 4A1.3 to prohibit reliance on an arrest record for a downward departure, together prohibited consideration of his arrest record. However, the district court did not view defendant’s arrests in isolation, but in the context of numerous other contacts he had had with the criminal justice system. The court’s reference to defendant’s arrest record “simply catalogued an additional example of [defendant’s] repeated contact with the criminal justice system over a short period of time at a young age.” The district court did not err in considering defendant’s arrest record as one of many factors warranting a sentence at the top of the Guideline range. U.S. v. Brown, 516 F.3d 1047 (D.C. Cir. 2008).
D.C. Circuit holds sentence can be based on conduct underlying deadlocked counts. (770) Defendant was convicted of drug and firearms charges. He argued that the court violated his Sixth Amendment rights by imposing a sentence higher than the guideline maximum based on facts not found by the jury. The D.C. Circuit found no error. First, under Booker, the guidelines are advisory, not mandatory. No Sixth Amendment issue is raised unless a sentence exceeds its statutory maximum. Second, a sentence may be based on conduct with which the defendant was charged but on which the jury deadlocked provided, as here, the court determined by a preponderance of the evidence that the defendant engaged in such conduct. U.S. v. Lawson, 494 F.3d 1046 (D.C. Cir. 2007).
D.C. Circuit upholds judicial fact-finding by a preponderance of the evidence. (770) Defendant argued that the district court sentenced him in violation of Booker, because it increased his sentence based on facts found by the court itself using a preponderance of the evidence. The D.C. Circuit found no error – defendant misunderstood the meaning of Booker. Since the guidelines are now to be applied in an advisory fashion, the Sixth Amendment bar against judicial fact-finding does not apply to guidelines sentences. Such fact-finding can be made by the preponderance of the evidence standard, rather than the more exacting beyond a reasonable doubt standard. Prior to Booker, the Supreme Court had upheld the guidelines’ application of the preponderance of the evidence standard. Following Booker, this circuit approved reliance on acquitted conduct proven by a preponderance of the evidence. See U.S. v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006). If a court may rely on acquitted conduct when proven by a preponderance, reliance on previously untried conduct proven under that standard is also permissible. U.S. v. Bras, 483 F.3d 103 (D.C. Cir. 2007).
D.C. Circuit holds that Booker and Crawford did not bar use of hearsay at sentencing. (770) Defendant argued that the district court violated his Sixth Amendment right to confront the witnesses against him by increasing his sentence based upon testimonial hearsay evidence that was not subject to cross-examination. Prior to Booker, courts routinely held that the use of hearsay in the Sentencing Guideline determinations does not violate the Constitution. The D.C. Circuit held that nothing in Booker or Crawford v. Washington, 541 U.S. 36 (2004) (barring use of certain testimonial evidence at trial) altered the pre-Crawford law that the admission of hearsay testimony at sentencing does not violate confrontation rights. U.S. v. Bras, 483 F.3d 103 (D.C. Cir. 2007).
D.C. Circuit approves post-Booker sentence that was based on acquitted conduct. (770) Defendant was convicted of making a false statement to the FBI and acquitted of conspiracy to commit money laundering and conspiracy to defraud the government. In sentencing, the district court took into account defendant’s role in the conspiracies, finding by a preponderance of the evidence that he was involved in them notwithstanding his acquittal of those offenses. The D.C. Circuit held that the basing his sentence in part on acquitted conduct did not violate the 5th or Sixth Amendment. Before U.S. v. Booker, 543 U.S. 220 (2005), courts had held that a sentencing court could consider acquitted conduct if the conduct was proved by a preponderance of the evidence. Nothing in Booker undermined this precedent. Under Booker, consideration of acquitted conduct violated the Sixth Amendment only if the judge imposed a sentence that exceeded what the jury verdict authorized. Defendant’s 24-month sentence did not exceed the 60-month statutory maximum for his false statement offense. U.S. v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006).
D.C. Circuit upholds use of hearsay testimony that defendant used gun in a threat. (770) A police officer testified that he responded to a radio run for a man with a gun at an apartment. Officers found the gun, and then interviewed those present in the apartment. The officer testified that one woman reported to the officer that defendant made threats to her with the gun. The district court relied on this testimony to find that defendant had threatened to shoot someone with the firearm, a separate felony that under § 2K2.1(b)(5) called for a four-level enhancement. The D.C. Circuit upheld the district court’s reliance on the officer’s hearsay testimony. The complainant presented her version of the facts on the night of the incident, maintained it consistently in more than one later interview, and testified to it before the grand jury under oath. Although the grand jury testimony was not admitted, the government counsel proffered that she had read it and that it was consistent with the accounts by the police officer. Moreover, defendant’s sister gave testimony that was at least partially consistent with the complainant’s account of the incident, and the complainant’s friend gave an account that matched hers in all serious respects. In re Sealed Case, 246 F.3d 696 (D.C. Cir. 2001).
D.C. Circuit rules PSR was insufficient to conclude that burglary was crime of violence. (770) The district court sentenced defendant as a career offender based in part on a prior burglary conviction. After reversing defendant’s convictions on appeal, the D.C. Circuit, added the district court was mistaken in finding that the burglary conviction was a crime of violence because there was insufficient information in the record. The guidelines define a crime of violence to include a burglary of a dwelling, but the Virginia statute to which defendant pled guilty covers burglaries of both dwellings and non-dwelling structures. The PSR’s description of the burglary was provided by the probation office for the Western District of Virginia and indicated that defendant had pled guilty to burglary of a dwelling. However, the government was unable to identify the original source of this description. Thus, there was no way to know at sentencing whether this description was obtained from a legitimate and reliable source, such as a charging documents, a plea agreement or a previous PSR, or whether the description came from an untested source, such as an arrest warrant, a police report, or a prosecutor’s proffer. U.S. v. Richardson, 161 F.3d 728 (D.C. Cir. 1998).
D.C. Circuit says drug quantity increase does not require clear and convincing evidence. (770) 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 convicted¾the 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 considers losses which occurred outside five-year statute of limitations. (770) Defendant embezzled money from her employer from 1980 until 1990. Because of the five-year statute of limitations, defendant was only charged with conduct from 1987 through 1990. However, the district court found that defendant’s 1980 through 1986 embezzlements were relevant conduct under section 1B1.3, and included them in calculating the loss. The D.C. Circuit held that the district court was authorized to consider the otherwise relevant conduct, even though it occurred outside the statute of limitations period. Evidence regarding conduct beyond the statutory period is not presumptively unreliable. Here, it was clear that defendant’s embezzlement during 1980 to 1986 was relevant to the 1987 to 1990 offenses for which she was convicted. Throughout the period 1980 to 1990 defendant was taking money from the same victim, by means of the same modus operandi. U.S. v. Wishnefsky, 7 F.3d 254 (D.C. Cir. 1993).
D.C. Circuit refuses to extend exclusionary rule to sentencing hearing. (770) The prosecution admitted that the police engaged in “some irregularity” when they conducted a warrantless entry to arrest defendant at his apartment. The parties agreed that the prosecution would not introduce at trial any of the evidence the police obtained during the warrantless entry. The D.C. Circuit upheld the use of this evidence at defendant’s sentencing to determine his base offense level. Following other circuits, the court held that the deterrent effect would not outweigh the detrimental effect of excluding the evidence. There was no showing that the police purposely violated the Fourth Amendment to obtain evidence to increase defendant’s sentence, and the police misconduct was minor. The court expressly left open the issue of whether suppression would be proper in circumstances where the police acted egregiously. Judge Silberman, concurring, was troubled by the incentive this rule created for police to seize evidence illegally. U.S. v. McCrory, 930 F.2d 63 (D.C. Cir. 1991).
Colorado District Court refuses to consider evidence obtained in disregard of 4th Amendment. (770) In U.S. v. Jessup, 966 F.2d 1354, 1357 (10th Cir. 1992), the Tenth Circuit held that illegally seized evidence may be considered in sentencing when there is no evidence that the officers’ actions “were intended to secure an increased sentence for the defendant.” In this case, District Judge Nottingham of the District of Colorado found that when the local and federal agents conducted their illegal search, they knew that an federal indictment had already been returned, and the government’s case was strong. This suggests that they were seeking “additional incriminating evidence.” Although the search was supposedly a “protective sweep,” one agent admitted that it “was conducted to find out if the defendant had any drugs, firearms or contraband.” The district court ruled that the defendant did not have to show that the search was “solely” or “expressly” to enhance the sentence. The facts here were sufficient to justify refusing to consider the suppressed evidence in sentencing. U.S. v. Gilmer, 811 F. Supp. 578 (D.Colo. 1993).
Article advocates permitting “acquitted facts” to be used in sentencing. (770) A student author canvassed the authorities addressing whether facts negated by a jury’s acquittal should be considered in sentencing. Most courts permit use of such facts if they are established by a preponderance of the evidence. Some seem to permit their use only if the facts are undisputed. Others preclude their use. The majority view is preferable because of the different burdens of proof applicable at trial and at sentencing. Moreover, precluding use of “acquitted facts” would only periodically coerce judges into ignoring reliable evidence, would frustrate the policies of the Sentencing Reform Act, and would unduly limit judicial discretion. Note, United States v. Brady — Should Sentencing Courts Reconsider Disputed Acquitted Conduct for Enhancement Purposes under the Federal Sentencing Guidelines?, 46 Ark. L. Rev. 457-73 (1993).
Article advocates applying exclusionary rule at sentencing. (770) A student author traces the development of the preguidelines rule that illegally seized evidence is excluded at sentencing only if the “sole motive” for its seizure was to enhance the defendant’s sentence. This standard, which is difficult to meet, has been embraced by most of the courts that have addressed whether the exclusionary rule applies under the guidelines. The guidelines regime alters the cost-benefit assessment needed to determine applicability of the exclusionary rule. The more certain impact of evidence on sentence means that the deterrent function of the exclusionary rule would be greatly undermined by refusing to apply the rule under the guidelines. The cost of exclusion is similar to the cost of exclusion at trial given the focus of the guidelines on offense characteristics. The requirement in 18 U.S.C. sec. 3661 that no limitation be placed on the evidence available to the sentencing judge cannot be read to foreclose application of the exclusionary rule. Note, Laundering Illegally Seized Evidence Through the Federal Sentencing Guidelines, 59 U. Chi. L. Rev. 1209-37 (1992).
Article advocates confrontation rights at sentencing. (770) A student author collects the cases generally rejecting the argument that the Constitution grants defendants the right to confront the witnesses against them at sentencing. Relying on both the due process clause and the confrontation clause, the author concludes that such rights should apply. Pre-guidelines cases permitting courts to consider hearsay at sentencing do not adequately resolve the issue under the guidelines. As to the confrontation clause analysis, Williams v. New York, 337 U.S. 241 (1949), does not address the point because it was a pre-incorporation case. Note, The Federal Sentencing Guidelines and Confrontation Rights, 42 Duke L.J. 382 (1992).
Article supports application of exclusionary rule at sentencing. (770) A student author argues that the exclusionary rule should be applied at sentencing because the sentencing guidelines create a unique incentive for the illegal seizure of evidence. The author believes that under the guidelines, the use of illegally seized evidence has become a vital component in deciding sentence length, thus severing the relationship between the offense of conviction and the sentence received. This threatens the goals of the guidelines, offends the principles underlying the exclusionary rule, and creates a new incentive for police to engage in illegal searches and seizures. Note, An End Run Around the Exclusionary Rule — The Use of Illegally Seized Evidence Under the Federal Sentencing Guidelines, 34 Wm & Mary L. Rev. 241 (1992).
Article questions inapplicability of evidentiary rules at sentencing. (770) Margaret A. Berger notes with skepticism the inapplicability of the rules of evidence at sentencing. She takes issue with the conventional wisdom that judges are capable of accurately assessing evidence that juries would be precluded from hearing by the rules of evidence. She proposes a number of possible reforms: that prosecutors not be allowed to prove as “relevant conduct” any fact that could have been charged at trial as a separate count, that prosecutors be precluded from relying on facts rejected by jury verdicts, and that certain categories of hearsay — like hearsay of a declarant while involved in plea discussions — be inadmissible even at sentencing. Margaret A. Berger, Rethinking the Applicability of Evidentiary Rules at Sentencing — Of Relevant Conduct and Hearsay and the Need for an Infield Fly Rule, 5 Fed. Sent. Rptr. 96-101 (1992).
Article doubts Commission’s authority to issue evidentiary rules. (770) Mark David Harris notes that §6A1.3 arguably imposes a more stringent test for admissibility of evidence at sentencing than would have been imposed under due process doctrine applicable to discretionary sentencing. Courts have varied in their recognition of this point. However, Harris questions whether the Commission’s enabling legislation authorizes the Commission to promulgate such rules. He suggests, however, that due process and Confrontation Clause notions provide a means that courts should employ to demand reliable evidence at sentencing. He also encourages the Supreme Court to repeal Federal Rule of Evidence 1101(d)(3), which makes the rules inapplicable at sentencing. Mark David Harris, Raising the Quality of Evidence at Sentencing, 5 Fed. Sent. Rptr. 102-05 (1992).
Article argues that defendants have constitutional right to confront adverse witnesses at sentencing. (770) A student author argues that a criminal defendant has the right under the Confrontation Clause of the 6th Amendment and under the Due Process Clause of the 5th Amendment to confront adverse witnesses at his sentencing hearing. The author contends that the guidelines have transformed the sentencing hearing into a fully adversarial proceeding where adversarial safeguards are necessary. In addition, the author maintains that the guidelines give each defendant a liberty interest in receiving a sentence that is within a particular guideline range. This liberty interest and the increase in accuracy that would occur from permitting a defendant to confront adverse witnesses outweighs any administrative burden to the government or its interest in using confidential informants. Note, An Argument for Confrontation under the Federal Sentencing Guidelines, 105 Harv. L. Rev. 1880-99 (1992).