United States v. Edward Gibbs, 26f4th760

Traffic stop (Mar. 2018) uncovered ~0.839 kg meth, $10,000+, phones; Gibbs and his wife arrested.
While jailed Gibbs arranged two proposed buys of ~0.907 kg each (neither completed).
Indictment charged conspiracy (500 grams or more); Gibbs pleaded guilty but only admitted to the 500‑gram quantity alleged.
PSR listed the seized .839 kg and the two attempted .907 kg deals, then inexplicably asserted "over 4.5 kg" distributed by a cooperator without supporting evidence.
At sentencing the AUSA introduced new, unproduced proffer claims (e.g., alleged 36‑lb confession, cooperator trips) and the court adopted the 4.5+ kg finding, yielding offense level 37 and a 200‑month sentence.
Seventh Circuit held the PSR and sentencing procedure violated Fed. R. Crim. P. 32 (government offered no evidence), reversed, and remanded for resentencing at offense level 35 (Crim. Hist. II).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court could rely on uncharged drug quantity unsupported in the record	Government: AUSA's proffer representations and co‑defendants' guilty pleas justify finding >4.5 kg.	Gibbs: PSR's higher quantity was unsupported; his denial created doubt and shifted burden to government to prove quantity by preponderance.	Court: Government failed its burden; PSR was unsupported and Gibbs's denial shifted burden; district court erred under Rule 32.
Whether AUSA could rely on unproduced proffer/hearsay at sentencing without calling the proffer witness or producing notes	Government: Sentencing need not be an elaborate trial; hearsay may be considered.	Gibbs: AUSA's statements cannot substitute for the witness/notes required by Rule 32; need testimonial support.	Court: AUSA's representations were not a substitute for live evidence; government should have produced the witness/notes per Rule 32 procedures.
Whether the Rule 32/quantity error was harmless because the imposed sentence falls within the lower corrected guideline range	Government: Error harmless; same sentence could lawfully be imposed on remand.	Gibbs: Guidelines anchor sentencing; incorrect range created reasonable probability of a different outcome.	Court: Error not harmless; incorrect starting range likely affected sentencing; remand required and government cannot present new evidence on remand.

United States v. Helding, 948 F.3d 864 (7th Cir. 2020) (unsupported PSR entries shift burden back to government).
United States v. Marks, 864 F.3d 575 (7th Cir. 2017) (court may rely on a PSR only if it is well‑supported and reliable).
United States v. Noble, 367 F.3d 681 (7th Cir. 2004) (government has one opportunity to present sentencing evidence; may not belatedly supply new evidence on remand).
United States v. Agyemang, 876 F.2d 1264 (7th Cir. 1989) (hearsay may be considered at sentencing but government must actually produce evidence and allow confrontation where appropriate).
Molina‑Martinez v. United States, 578 U.S. 189 (U.S. 2016) (being sentenced under an incorrect Guidelines range often creates a reasonable probability of a different outcome).
Peugh v. United States, 569 U.S. 530 (U.S. 2013) (when judges start with a Guidelines range, the Guidelines become the basis for the sentence).
United States v. Dean, 414 F.3d 725 (7th Cir. 2005) (Rule 32 requires district court to make factual findings on disputed material facts).
United States v. Moreno‑Padilla, 602 F.3d 802 (7th Cir. 2010) (a bare denial is generally insufficient to shift burden unless the PSR is unsupported or omits crucial information).