932 F.3d 316
5th Cir.2019Background
- Defendant Cory Dale Fields pleaded guilty to being a felon in possession of a firearm; at sentencing the district court imposed an upward variance to 60 months.
- The PSR recounted an extensive 20-year criminal history and described two prior arrests (2001, 2005) for injury to a child based on detailed police offense reports; both charges were later no-billed by Texas grand juries.
- Defense argued the no-bills undercut the PSR’s reliability and that the district court therefore could not rely on those arrest descriptions to impose an upward variance.
- The district court found by a preponderance that Fields engaged in the conduct described in the PSR offense reports and relied on that conduct (among other factors) in imposing the upward variance.
- On appeal Fields contested only the reliability of the PSR’s descriptions of the no-billed arrests; the Fifth Circuit affirmed, holding the PSR narrative had sufficient indicia of reliability despite the grand jury no-bills.
Issues
| Issue | Fields' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a district court may rely on PSR factual recitations of conduct underlying arrests that were no-billed by a Texas grand jury | No-bills indicate lack of probable cause and therefore undermine reliability; PSR descriptions lacking reliability cannot be used for sentencing | A no-bill is merely a decision not to charge based on the evidence before that grand jury; a detailed PSR/offense report can still bear sufficient indicia of reliability | Court held a district court may rely on detailed PSR offense-report descriptions despite grand-jury no-bills if those descriptions bear sufficient indicia of reliability and the court finds the conduct by a preponderance |
| Whether a grand jury no-bill precludes a sentencing court from making preponderance findings about the underlying conduct | A no-bill (lower standard) should preclude later finding by preponderance that the conduct occurred | No-bill does not necessarily mean the grand jury found no unlawful conduct; it only means it declined to charge based on the evidence presented | Court held a no-bill does not automatically bar a district court from finding underlying conduct by a preponderance; the no-bill alone does not destroy reliability of a detailed PSR recitation |
| Whether a sentencing court may consider nonconviction conduct when imposing an outside-Guidelines sentence | (same as above) | (same as above) | Consistent with precedent, district courts may consider nonconviction conduct if proven by a preponderance and the information has sufficient indicia of reliability |
| Whether the district court here procedurally erred in relying on the PSR descriptions of the two no-billed arrests | The reliance was improper because the grand-jury no-bills rendered the offense-report narratives unreliable | The PSR descriptions (detailed offense reports with witness statements) provided sufficient indicia of reliability; the district court’s preponderance findings were not clearly erroneous | Court affirmed: no procedural error; district court permissibly relied on the PSR narratives and made preponderance findings supporting the variance |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (standards for appellate review of sentencing and permissibility of variances)
- United States v. Watts, 519 U.S. 148 (1997) (acquittal does not bar consideration of underlying conduct at sentencing if proven by a preponderance)
- United States v. Fuentes, 775 F.3d 213 (5th Cir. 2014) (PSR information may be considered if it bears sufficient indicia of reliability)
- United States v. Harris, 702 F.3d 226 (5th Cir. 2012) (standard that district courts may consider nonconviction conduct proven by a preponderance; review standards)
- Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996) (en banc) (Texas grand jury no-bill means evidence before that grand jury did not convince it to charge; it is not a finding that no unlawful conduct occurred)
- United States v. Gipson, [citation="746 F. App'x 364"] (5th Cir. 2018) (per curiam) (unpublished) (no-bill does not necessarily strip PSR offense-report reliability; sentencing court may find by preponderance that defendant engaged in activities described)