United States v. Powell
2011 U.S. App. LEXIS 9698
| 4th Cir. | 2011Background
- Powell was convicted of mail fraud, wire fraud, and attempted destruction of evidence for selling goods online without delivering them.
- At sentencing, the district court relied on out-of-court statements to find over ten victims and about $199,000 in loss, increasing the Guidelines range.
- The government’s loss/victim figures were largely based on Inspector Cross’s investigations and Powell’s records, not solely trial testimony.
- Powell challenged the enhancements under the Guidelines for number of victims and loss as violating the Confrontation Clause.
- The district court reduced the tally to just over ten victims and loss to $199,000, yielding a lower within-Guidelines range, and sentenced Powell to 102 months concurrent with related counts.
- Powell appealed, arguing Confrontation Clause rights required cross-examination of all sources and that the sentence lacked §3553(a) explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Confrontation Clause apply at sentencing? | Powell argues it applies to sentencing proceedings. | United States contends it does not apply at sentencing. | No Confrontation Clause application at sentencing. |
| Is reliable hearsay permissible at sentencing without cross-examination? | Powell contends hearsay cannot be trusted without cross-examination. | United States asserts sentencing may rely on reliable hearsay with indicia of reliability. | Hearsay with sufficient indicia of reliability may be used at sentencing. |
| Did the district court adequately explain § 3553(a) factors in imposing a within-Guidelines sentence? | Powell asserts the court failed to provide individualized § 3553(a) reasoning. | Government argues substantial compliance or harmless error given within-Guidelines sentence. | Any error was harmless; sentence within Guidelines affirmed. |
Key Cases Cited
- Williams v. New York, 337 U.S. 241 (Supreme Court 1949) (trial sentencing distinctions; broad information permissible at sentencing)
- Pepper v. United States, 131 S. Ct. 1229 (Supreme Court 2011) (explanations of proportional punishment; broad sentencing discretion)
- Crawford v. Washington, 541 U.S. 36 (Supreme Court 2004) (testimonial hearsay and confrontation rights in trials)
- Michigan v. Bryant, 131 S. Ct. 1143 (Supreme Court 2011) (confrontation rights; testimonial/non-testimonial distinctions)
- United States v. Wilkinson, 590 F.3d 259 (4th Cir. 2010) (reliable hearsay can be used at sentencing)
- United States v. Fulks, 454 F.3d 410 (4th Cir. 2006) (affirming use of reliable hearsay at sentencing)
- United States v. Love, 134 F.3d 595 (4th Cir. 1998) (reliable hearsay permissible in sentencing context)
- United States v. Johnson, 935 F.2d 47 (4th Cir. 1991) (probation officer information not implicating confrontation rights)