United States v. Hiachor Kpodi, 824 F.3d 122

Background

In May 2013 police searched Hiachor Kpodi’s residence and found cocaine base, oxycodone, and a loaded .45 Glock; he was indicted on drug and gun charges.
The Government sought pre-trial admission of four other-acts events, including an April 4, 2013 neighborhood gunfire incident (shell casings recovered; two witnesses saw Kpodi running/ducking).
The district court excluded the April 4 gunfight evidence under Federal Rule of Evidence 404(b) as too speculative and unduly prejudicial, though it admitted other incidents (an April 27 traffic stop and an October 30 search).
At trial Kpodi was convicted of possession with intent to distribute cocaine base and being a felon in possession of a firearm; acquitted on two other counts.
The Presentence Report nonetheless included the April 4 incident; at sentencing the court treated that incident as a “chilling” aggravating circumstance and stated the witnesses had identified Kpodi as participating, contributing to a finding that he was prepared to use guns in his drug business.
The court sentenced Kpodi to 151 months (bottom of Guidelines); the D.C. Circuit vacated and remanded for resentencing, holding the district court abused its discretion by relying on a clearly erroneous inference drawn from the excluded April 4 evidence, and that the error was not harmless.

Issues

Issue	Appellant's Argument (Kpodi)	Government's Argument	Held
Whether the district court erred by considering April 4 gunfight evidence at sentencing after excluding it pre-trial under Rule 404(b)	Court abused discretion by relying on the same prejudicial, speculative inference at sentencing that it rejected pre-trial	Court argued district court reasonably considered the conduct for sentencing (different standard) and any error was harmless	The court abused its discretion: the sentencing relied on a clearly erroneous inference about Kpodi’s participation in the April 4 shooting and thus was improper
Whether considering acquitted/unadmitted conduct at sentencing is per se barred	Sentencing should not rest on excluded, prejudicial evidence that the court itself found insufficient for trial	Government relied on Watts and similar authority permitting consideration of conduct at sentencing if proved by preponderance	Not decided categorically; but here reliance on a clearly erroneous inference is reversible error
Whether the error was harmless	The April 4 evidence was material to the court’s decision; removal could alter §3553 balancing or permit a downward variance	Government contends other admitted incidents suffice and sentence at bottom of Guidelines shows minimal effect	Error was not harmless; remand for resentencing required
Standard of review for sentencing facts/inferences	Sentencing court must not base sentence on clearly erroneous facts/inferences	Government asks deferential harmless-error review and points to other evidence	Court applied abuse-of-discretion review and found the district court’s inference clearly erroneous and influential; remand ordered

Key Cases Cited

Gall v. United States, 552 U.S. 38 (sets procedural and substantive reasonableness framework for appellate review of sentences)
United States v. Watts, 519 U.S. 148 (jury acquittal does not bar consideration of conduct at sentencing if proved by preponderance)
United States v. Lemon, 723 F.2d 922 (D.C. Cir. 1983) (sentence must not be based on improper or inaccurate information)
United States v. Wright, 24 F.3d 732 (5th Cir. 1994) (remand where upward departure rested on clearly erroneous factual finding)
United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (sentence based on clearly erroneous factual conclusion generally unreasonable; remand)
United States v. Powell, 334 F.3d 42 (D.C. Cir. 2003) (harmless-error standard for nonconstitutional errors)
Olano v. United States, 507 U.S. 725 (harmless-error principles)
Chapman v. California, 386 U.S. 18 (constitutional error harmless only if beyond reasonable doubt)