696 F. App'x 309
9th Cir.2017Background
- Defendant Jason (Daniel) Morgan pleaded guilty to failing to register as a sex offender; Guidelines range was 18–24 months.
- District court sentenced Morgan to 48 months imprisonment and lifetime supervised release (a significant upward variance).
- Morgan had one prior sex-offense conviction (involving a four-year-old); the Presentence Report (PSR) also recounted decades-old, unreported allegations from Morgan’s estranged ex-wife of three separate incidents involving children.
- Morgan’s estranged daughter corroborated one of the ex-wife’s allegations in an interview with the probation officer.
- The district court referenced Morgan’s “history of sexual assaults” and relied on the PSR material when explaining the upward variance.
- Court of Appeals: affirmed sentence in part, vacated special supervised-release Condition No. 7 in light of Packingham and remanded; Judge M. Smith concurred in part but dissented in part, arguing the sentence should be vacated and remanded because it may have rested on unreliable hearsay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the substantive sentence (48 months) was reasonable | Morgan: variance excessive; sentence unreasonable because based on uncorroborated hearsay and did not meet §3553(a) limits | Government/District court: upward variance justified by deterrence, public protection, respect for law, and Morgan’s alleged history | Lead opinion: affirmed as substantively reasonable given deference to district court; concurrence/dissent would vacate and remand due to unreliable hearsay |
| Whether the district court lawfully relied on decades-old, untested hearsay in imposing sentence | Morgan: PSR allegations (ex-wife) were unreported, not under oath, not cross‑examined, and lacked minimal indicia of reliability | Government: probation officer’s credibility assessment and daughter’s partial corroboration provide sufficient indicia of reliability | Concurrence (M. Smith): district court appears to have relied on hearsay lacking minimal indicia of reliability; would vacate sentence and remand. Lead opinion: did not find reversible error on substantive-reasonableness review |
| Whether Special Condition No. 7 of supervised release stands post-Packingham | Morgan: condition likely overbroad under Packingham’s free‑speech analysis | Government: condition acceptable | Both parties agreed Packingham impacts the condition; Court vacated Condition No. 7 and remanded for reconsideration |
Key Cases Cited
- United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016) (district court may not base sentence on hearsay lacking minimal indicia of reliability)
- United States v. Huckins, 53 F.3d 276 (9th Cir. 1995) (hearsay used at sentencing must have some minimal indicia of reliability)
- Gall v. United States, 552 U.S. 38 (2007) (district courts may vary from Guidelines but must justify degree of variance and explain sentence)
- United States v. Hernandez, 795 F.3d 1159 (9th Cir. 2015) (substantive reasonableness standard: sentence must be sufficient but not greater than necessary)
- United States v. Vasquez-Perez, 742 F.3d 896 (9th Cir. 2014) (review of substantive reasonableness is for abuse of discretion considering totality of circumstances)
- United States v. Berry, 258 F.3d 971 (9th Cir. 2001) (external consistency is a factor supporting hearsay reliability)