August 1, 2005
Sixth Circuit ruling shows importance of burden of proof
I have not carped about the importance of the burden of proof at sentencing for quite some time — in part because the federal circuits seem quite content post-Booker to continue to embrace the preponderance standard, even though I think good arguments can be made for a higher proof standard. (For prior extended discussion of this issue, see posts here and here and here.) But a decision today by the Sixth Circuit in US v. Gardner, No. 04-1161 (6th Cir. Aug. 1, 2005) (available here), serves as a useful reminder of the import and impact of proof standards even if judges are to be sentencing factfinders.
In Gardner, the district court imposed a significant "drug-quantity enhancement based upon the nearly $16,000 in cash found in Gardner's pickup truck, which the court determined was the proceeds from selling 598.74 grams of crack cocaine." Gardner objected to this enhancement, claiming that the money was unrelated to his cocaine dealing, but the district court reasonded:
if you just look at the . . . presentence report, all the facts and circumstances in that report lead up to a rational conclusion by a preponderance of the evidence — circumstantial though it may be — that [Gardner] got that money by selling crack cocaine.... And as far as the [money coming from other sources], without evidence of that, as to the money coming from that sale, [Gardner's] mere statement of it, it's hard to believe.... [T]here are a lot of statements floating around out there, but where is the proof?
On appeal, the Sixth Circuit approved the district court's factfinding and drug-quantity enhancement; it cited "the evidence suggesting that the money found in Gardner's pickup truck came from the sale of crack cocaine and the lack of any evidence to support Gardner's claim that it was actually from the sale of other items."
In short, it seems that the defendant received a significant sentence enhancement — by my calculations, over five additional years under the guidelines — because the defendant could not himself prove the source of the cash in his truck. I am thus reminded yet again (as I was with this case from the Seventh Circuit last month) of Justice Scalia's expressed concern in Blakely about a defendant seeing "his maximum potential sentence balloon ... based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong."
August 1, 2005 at 05:49 PM | Permalink
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I wish they had actually had a discussion of the burden of proof rather than just saying that "evidence was sufficient." Sufficient for what standard? They assume without saying that Booker does not change this, which, as you suggest, is likely to be the result upon further consideration.
Posted by: Robert Little | Aug 2, 2005 6:35:01 AM
I can only echo what Mr. Little says. It appears that courts are willing to assume a preponderance standard as before. But even that conclusion is usually presented without any discussion. There is very little helpful material on this point. Perhaps raising it specifically as an issue on appeal will do the trick.
Posted by: Dennis Terez | Aug 4, 2005 7:38:56 PM