United States v. Ira Silverman (90-3205) Morris G. Woodard (90-5816) and Gary Caton (90-5733/91-6506)

America, STATES UNITED

Plaintiff-Appellee, (90-3205); Morris G. Ira SILVERMAN (90-5816); Gary Caton Woodard (90-5733/91-6506), Defendants-Appel

lants. 90-3205, 90-5733,

Nos. 90- 5816 and 91-6506. Appeals, States Court of

Sixth Circuit. Reargued 1992. Feb. Sept. Decided

lander, Atty., Lexington, Ky., Asst. U.S. (briefed), Connelly Dept, of Sean U.S. Jus- tice, Div., D.C., Washington, Civ. for U.S. in No. 91-6506. MERRITT, KEITH, Judge;

Before Chief KENNEDY, MARTIN, JONES, Braud, Atty., Asst. U.S. Colum- John O. MILBURN, GUY, NELSON, RYAN, (briefed), bus, Ohio, Gregory G. Lockhart BOGGS, NORRIS, SUHRHEINRICH, Dayton, Ohio, Atty., U.S. and Office SILER, BATCHELDER, and Circuit briefed), Connelly (argued and U.S. Sean WELLFORD, Judges; and Senior Circuit Justice, Div., Dept, of Civ. Kenneth W. Judge. Gen., (argued), Office of the Starr Sol. D.C., for Washington, U.S. No. 90-3205. WELLFORD, Judge. Senior Circuit briefed), (argued H. Bodiker and David Defendants, Silverman, Catón, Gary Ira Holland, Columbus, Ohio, Bodiker & for Ira Woodard, appealed and Morris have Silverman. guidelines their sentences received rea- Borman, Paul Fed. Public Defenders Of- pleas possession of guilty son with in- fice, Detroit, Mich., Marek, Fed. Edward drugs. Judge tent to distribute The Chief briefed), (argued Defender Public separate appeals that their be con- directed Cleveland, Ohio, Prewitt, Knoxville, Leah J. “they solidated because determined that Tenn., Duke, Edward C. Fed. Public De- legal questions similar under the involve fender, Tenn., Martin, Memphis, Henry A. case, Clause.” In each Confrontation Defender, Nashville, Tenn., for Fed. Public sentencing judge increased the sentence curiae Federal and Commu- amicus Public imposed beyond that which reflected the nity defenders. quantity drugs particular involved in the DeFalaise, Louis U.S. John M. Atty., count or counts to which the defendant had Compton, Atty., Asst. U.S. Mark A. Woh- pleaded guilty. The case each lander, (briefed), Atty. Lexing- Asst. U.S. drug activity particu- reflected other ton, Ky., Connelly, Dept, Sean U.S. of Jus- upon hearsay defendant lar based testimo- tice, Div., (argued), Kenneth Starr Civ. W. evidence, activity ny or and this was found Gen., D.C., Washington, Office of the Sol. by the by preponderance a of the evidence for inU.S. No. 90-5733. “relevant conduct.” district be Douglas (argued L. McSwain This relevant conduct determination briefed), Welch, Lexing- Ogden, Sturgill & imposed, for the sentences the -basis ton, Gary Ky., Catón. ap- subject of these consolidated are the peals. Although it is uncertain whether DeFalaise, Atty., Louis John M. U.S. the confron- the defendants raised each of (briefed), Compton, Atty. Asst. U.S. Lex- manner, timely we discuss tation issue ington, Ky., Connelly (argued Sean separate- of each defendant contentions briefed), Justice, Div., Dept, of U.S. Civ. ly circumstances his applicable and the (argued), Kenneth W. Starr Office of particular We AFFIRM each of the case. Gen., D.C., Washington, in No. Sol. U.S. sentences. 90-5816. briefed), Henry (argued Kevin G. I. IRA SILVERMAN Welch, Ogden, Sturgill Lexington, Ky., & for Morris Gordon Woodard. saga of Silverman in the federal began in he was arrest- Compton, Atty., M. Asst. U.S. Kar- courts when

John Caldwell, to an Atty., attempting after to sell cocaine en K. Mark A. Woh- ed Silverman, prosecutions, the accused shall "In all criminаl 1. United States Nos. 90-3205/ 5733/5816, (6th slip op. right enjoy 1991 WL to be confronted with the ... Cir.1991) (vacated). The Sixth Amendment to against him.” witnesses part: provides, pertinent the U.S. Constitution considered, Any him information so charged The indictment informant. it has indicia reli- long cocaine and with to distribute intent “sufficient support probable com ability in interstate its accura- count of travel separate maybe narcotics business. Reliable evidence promote cy.” merce to agreement, pleaded Silverman declarations plea considered. Out-of-court Under may to the cocaine distribution only an unidentified informant be consid- guilty appeal, issues In an initial the charge. good there is cause for the ered “where constitutionality of the Federal identity the of his and there is were nondisclosure (“guidelines”), the Sentencing Guidelines corroboration other means.” sufficient establishing guideline proof on allegations of shall not be consid- burden Unreliable elements, court’s consideration the district ered. involving drugs to activities past of (1987) (cita- —found at 6.2 Guidelines Manual the guidelines under conduct relevant be added). omitted; emphasis tions offense, 1B1.3) role the (§ —Silverman’s Therefore, we reverse district to government adhered and whether sentencing of defendant and re- court’s remanded the agreement. We plea resentencing this case for with the mand J., dis dissenting) to direct the (Guy, case that all that instruction conduct formed the effect of Silver- to consider trict court part of defendant’s criminal course of agreement, specifically asking plea man’s conduct, including plan, pos- or scheme accepted agreement the court whether drug quantities charged session of out its intent had been carried and whether count,.... the dismissed United States v. Silver in the sentence. (footnote omitted). Id. at 108-109 Smith (6th Cir.1989). man, F.2d 1539 889 district reversed the court’s failure to con- remand, cited, in connection with the We activity drug sider the defendant’s in the Smith, (6th F.2d United was count of indictment which dis- Cir.1989), which held: agreement. to pursuant plea missed a determination, the dis- In its directed the district We also court have all court should considered trict clarify finding on role in the its Silverman’s part same course conduct offense, noting that the court had not indi- plan or common scheme or conduct cated whether it had found five more conviction-including the offense of as required as participants three-point drugs charged in Count possession Finally, panel directed enhancement. dismissed Two count]. [the court to its district “indicate reasons process requires note that due We for rejecting the motion for withdrawal of beyond evidentiary basis mere alle some Silverman, the guilty plea.” 889 F.2d at presented in an to gation indictment be was no 1540. There reference whatever of such as support consideration conduct opinion previous our to the Confrontation sentencing. to a matter relevant “[A]s Clause, any nor did Silverman make such process, may be due factual matters argu- or at direct contention his brief only as if a basis considered ment. minimal relia they have some indicium of opinion, original In the we noted Silver- beyond allegation.” bility mere position opposing: man’s (3d Baylin, F.2d

States Cir.1982); past see court of his also Williams v. Okla consideration homa, 576, 584, drug history alleged dealing. extensive pro sought This due Defendant to limit consideration cess limit on the evidence only that “admissible at of evidence recog properly consider is proof and that on factors relevant trial” commentary nized in the 6A1.3 required level “clear to the offense guidelines, provides: convincing He evidence.” also sentencing hearing facts, sought to limit the determining the relevant sen- allegations previously set tencing judges not infor- matters are restricted to (not report presentence mation that be admissible at trial. forth would previous factual de- court reaffirms its presented). later supplemental material August, 1987 sale of testify termination ruling that he could sought He kilogram part was a one of cocaine evidence without response any such ongoing course of conduct or com- privilege. same waiving fifth amendment his plan drug mon scheme or as defendant’s ruling to defendant’s If the were adverse formed the basis for the regard, sought activities which in this Silverman motions February offense of conviction. guilty plea. his to withdraw Indeed, noted, previously as this court specifically The district court did August created the debt distribu- matters, but it did consider rule on these played tion of cocaine a role in the events past history of a later memorandum on February conduct, August dated relevant concerning to information addition, which related In the district court concluded af- (1) by other investigation of Silverman further ter consideration on remand: distribution, earlier cocaine authorities promises The court concludes that no in (2) drug dealers purported a list of were made to defendant that consider- handwriting in a obtained Silverman’s ation of other activities as relevant con- limousine, (3) Silverman’s search of precluded, would and that defen- duct $10,- posting college a student of a while any expectation dant had no basis in in than two hours 000 cash bond less not the court could consider November, 1987, (4) cocaine information. underlings transaction “with Silverman there are no The court concludes that pure involved cocaine.” 93% [which] present in this case which circumstances Silverman, 889 F.2d at 1537. distinguish in would it from the result Ykema, 887 F.2d 697 United States v. findings its The district court reiterated Cir.1989) denied, (6th [, cert. drug past relevant conduct on Silverman’s L.Ed.2d 961 110 S.Ct. opinion in the on remand: (1990)]. This court concluded from the evidence sentencing hearing presented at court on appellate In their briefs to this investigation report presentence in the appeal, parties did not cite this second drug sig- dealer of that defendant was or the the Confrontation Clause Sixth drug proportion, nificant and that his object, Silverman did howev- Amendment. spanned period distribution activities er, hearsay some evidence nature of in prior several months to his arrest Feb- appellate information. Silverman’s or included ruary of 1988. These activities moreover, brief, acknowledged numerous kilogram of co- his distribution holding “drugs that not cases were August as as co- caine well must be part of the offense conviction early caine activities as distribution compute in the amount used to included year reported by June of that which were guidelines. offense score” under base government informant. The evi- claimed, He rather than a confrontation that defendant was dence also indicated violation, support “record” did not drug activities involved distribution findings.2 Regardless court’s the district Athens, during University in Ohio Ohio consider due of whether we Silverman’s period. prior to this process contention as a “Confrontation matter,3 deal the district of the sen- Clause” we Upon further consideration court, treatment of evidence. tencing information before the court’s only Clause had we examined does mention a “constitutional due the Confrontation 2. Silverman right" process parties properly to the effect "that facts used below. issues raised have indicium minim[al] must 'some “[0]rdinarily party may present a Con (Quot- reliability beyond allegation.’" of ing mere objection for the first time on frontation Clause Smith, 108.) F.2d at Mayes, appeal.” — U.S. -, denied, Cir.1990), (10th cert. injected Judge Chief Merritt the con himself (1991) (citing cases in the first in frontation issue these (10th Gomez, 810 F.2d United States v. Indeed, analyzed stance. we would not have court, meaning that the district 730 conduct” within the of Guidelines We conclude (1990), 1.3(a)(1). upon by was not in error its IB F.Supp. 1418 The conduct relied of the issues remanded to reconsideration officer involved 16 to 56 kilo- it, including the reduction based Silver- grams pro- аpparently of cocaine that were manager. reiter- role as We man’s reduced through cessed home Caton’s with Caton’s ate, setting forth in additional de- without knowledge conjunction drug with several tail, findings supported by indicated as rings including one led Morris Woodard. opinion original ap- evidence in the The court held that definition of “[t]he supplemental findings find the peal. We requires relevant conduct a link between by the district court are made on remand past conduct and the count of convic- by evidence with at least supported also tion. this case the other activities are reliability.” indicia of “some minimum We remote, time, too involvement and char- conclude, for the reasons hereinafter also acter, meet At this standard.” the end forth, that Silverman’s Confrontation set however, hearing, the district court process rights, as well as his due Clause considering upward indicated that was in the district rights, not violated were departure. of other relevant court’s determination Catón sentenced on the basis of an pre- drug after consideration of conduct offense level of fourteen and a criminal report, testimony by agent DEA history category imprisonment six for Robins, supplemental memorandum sub- a forty-six years’ super- months with three sentencing, the district mitted to special vised release and a assess- $150 present opportunity of defendant upward ment. The court found that an to ask for a recess or continu- witnesses or departure from the recommended criminal argument surprised, if of counsel. ance history category higher to the next level

II. GARY CATON would result too lenient a sentence. The court stated: by grand jury indicted Gary was a Catón charging counts him with three on three high- Court has examined the next [T]his 841(a) illegal U.S.C. violations criminal history category est and feels distribution, possession with intent to it is too lenient in this situation. charges cocaine. The arose from distribute highest history catego- The next criminal government purchases of three undercover two, ry would be a which would call for pur- in 1989. Those cocaine from Catón range. an 18 to 24-month inAnd totalling two transactions chases included opinion simply of this Court this is not of cocaine sold to a confi- one-eighth ounce enough considering time the nature and informant; one-quarter the sale of dential past the extent of the defendant's con- repair shop Caton’s car a ounce from few duct. informant; days later to the and the sale of ounces, again repair shop, at the two to an upon So based the defendant's conduct government agent undercover about a presentence as documented in the report pleaded guilty month later. Catón to all supplemented in the evidentiary charges. three Probation Officer Mason hearing, depart the Court will above the prepared presentence report following applicable guideline range. guilty plea. Caton’s After Catón made nu- objections report, merous to the a number paragraphs presentence report from the I departing anything think lower than were deleted. category six would result a sen- tence not evidentiary

The district court held an which is serious—severe hearing enough. I think on the issue of whether certain this is a case which alleged prior requires I criminal activities mentioned a serious sentence. And took presentence report step were it a a time. I “relevant went from three to

Cir.), denied, (1987)). cert. I a four-point four to five until felt comfortable with ommended enhancement based six. on Woodard’s role in the offense and did two-point recommend a reduction for (Citing Kennedy, acceptance of responsibility. Woodard re- (6th Cir.1990)). The court’s determina- quested access to the notes and memoran- on the fact that Catón was tion was based da used prepar- officer in large “player” the distribution of ing report, but the court denied his amounts cocaine.4 The court relied on request. presentence report, information from the Police, Kentucky an identified State government indicated that it would witness, informant, a confidential and Ca- hearing offer evidence at a in support of a objected tón himself. Catón use (not four) two level increase based on information from confidential infor- Woodard’s role and that it oppose would mant because he felt he should had have two-level acceptance decrease for of re- opportunity to learn the informant’s sponsibility. The district court twice of- identity reliability and test the of the infor- fered Woodard the opportunity to with- testimony by mant’s cross-examination. plea, his draw but Woodard declined. The discussion of the confrontation issue The district court found that Woodard Woodard, also relates to defendant and we figure transaction, dominant setting also set out the factual as to Wood- buffer, that he had used Sims as a that he beginning analysis. ard before our made false statements about his role stat- only simple lender, he was money III. MORRIS WOODARD had also falsified the facts about pursuant Woodard was sentenced his intentions to sell the cocaine. On this guidelines conspirаcy possess cocaine basis the district court enhanced the base involving with intent to distribute two kilo- points thirty level two and refused to grams in 21 violation of U.S.C. acceptance reduce of responsibility. pleaded guilty charge Woodard The court then sentenced 121 Woodard to exchange government’s agreement for the imprisonment. months guidelines not to seek enhancement above twenty-eight. plea agreement level The no- THE IV.. CONFRONTATION ISSUE up forty tified Woodard that he faced years imprisonment and that the ultimate entering analysis Before into its sentence was within the district court’s dis- Clause, argues Confrontation the dissent cretion. that this court should not treat “the ‘rele- provisions vant conduct’ ‘im- pleaded conduct to which Woodard ” peratives.’ We choose not to address this guilty purchase involved the from a confi- argument, which has never been -raised in dential of kilograms informant one to two cases, these since our recent decision of cocaine. Woodard was arrested Davern, United States v. 970 F.2d 1490 Kentucky State Police at his tobacco ware- (6th Cir.1992) (en banc), rejected the same following meeting house with the confi- urged by contentions the dissent. dential informant at which Woodard was prepared purchase one or more kilo- argue Defendants that a criminal $22,000 grams per kilogram. Most of procedural defendant is entitled to trial-like negotiations were conducted Wood- protections at sentencing in order to chal Sims, nephew, provided ard’s but Woodard lenge accuracy presentence reports money for the cocaine. developed or other for the edi information report

The presentence judge. indicated that fication of This ar gument Woodard had appears predicated upon been involved with two to be groups dealers, theory of cocaine one of things that all relative to sentenc included report completely changed defendant Catón. The rec- have under the noted, purposes increasing 4. As the court earlier had determined evant conduct" for that this evidence would not be considered "rel- base level offense.

1508 (footnote While a number of Id. at 69 guideline procedures. S.Ct. at 1082 omit- changed, ted); we are of the Oklahoma, have considerations see also Williams v. permissible methods of in- 576, 583-86, 421, 425-27, view that U.S. 79 S.Ct. sentencing judge and the need forming the Supreme L.Ed.2d 516 Court fashioning sentences for information recognized permitted the use of affida- rights of defen- light of the constitutional judges’ personal vits аnd knowledge in sen- essentially have not dants at tencing offenders, and noted as well that always changed. The standard has been Rule 32 of the Federal Rules of Criminal properly im- that a sentence provided Procédure judges federal material posed on the basis of misinforma- reports by probation have access to made tion, States, 445 Roberts v. U.S. York, officers. New Williams v. 1358, 1362, 552, 556, 100 63 L.Ed.2d S.Ct. at 69 S.Ct. at 1082. (1980), procedures, specific but such as Williams, In the Court concluded: trial, simply are not consti- required are at sentencing judge ... is not confined [a] mandated, especially tutionally when a guilt. to the narrow issue of His task See, e.g., Boykin guilty plea is entered. statutory within fixed or constitutional Alabama, 395 U.S. limits type is to determine the and extent 1711-12, (1969) (“A plea 23 L.Ed.2d punishment guilt after the issue of guilty is more than a confession which ad- Highly has been determined. relevant— acts; the accused did various it is mits that if not essential—to his selection of an conviction; nothing remains itself a but to appropriate possession sentence is the give judgment punish- and determine ment.”). possible fullest information concern- ing the defendant’s life and characteris- York, v. New Williams tics. (1949) 93 L.Ed. 1337 S.Ct. Supreme proper appli- considered the Court (footnote Id. at omit- of the rules of evidence to ted). cation sentenc- singular The Court noted the value ing procedures. upheld The Court New probation presentence reports to this York law which allowed a to consider gathering process. of information evidence obtained from outside the court- recognize We must that most of the in- confrontation or room without cross-exami- upon by judges formation relied now exercising judge’s nation discretion guide intelligent them in imposition impose penalty. the death Court of sentences would be if in- unavailable appellant’s process due considered formation were given restricted to that policy the effect of the claim and that “no open subject court witnesses person tried and shall be convicted of an pro- cross-examination. And the modern given offense unless is reasonable notice report bation draws information con- charges against him and is afforded cerning every aspect of a defendant’s to examine opportunity adverse witness- type life. The and extent of this infor- 245, (footnote es.” Id. at 69 S.Ct. at 1082 totally impractical mation make if not omitted). rejected appel- The court impossible open testimony court procedural request pro- lant’s for trial-like procedure Such a cross-examination. practical tections on both historical and endlessly delay could criminal adminis- grounds. tration in a retrial of collateral issues. and since before the American [B]oth 250, (footnote Id. at 69 S.Ct. at 1084-85 nation, colonies became a courts in this omitted; added). emphasis country England practiced policy acknowledged sentencing judge

under We have the wide discre which a could tion considering exercise a wide allowed a trial discretion the sources See, evidence types sentencing. of evidence used to assist him submitted at Hill, 18, in determining e.g., the kind and extent of United States v. 688 F.2d 20 punishment (6th Cir.) imposed denied, 1074, to be within limits cert. 498, (1982) fixed law. (sentencing presentence report in- nized the Commission itself. U.S.S.G. may consider 1, A, 4(a), Pt. intro. Ch. comment. “notwithstanding the fact that formation prosecuted or has never been conduct, history, [defendant] criminal Relevant any prior activity”), criminal convicted examples role in offense are of the real (6th Green, 67, 70 Humphries v. 397 F.2d aspects sentencing guidelines. Pro- Cir.1968). requirements establishing cedural sentencing, factual akin to basis the real hearsay court’s use of aspects pre-guideline sentencing, offense traditionally been almost information has sentencing practices. continue from former Maddalena, unlimited. v. United States 10; e.g., Breyer, supra at LaFave & See Cir.1989). 815, (6th in For Israel, (Supp. Criminal Procedure 25.1 stance, “[sentencing courts have tradition 1990) (acknowledging guidelines ‍​‌​​‌​‌‌​​​​‌​‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌​​​​‌​‌‍do facts with ally heard evidence and found require trial-type evidentiary hear- all,” proof any prescribed at out burden ing); Yellen, Hutchison & Federal Sen- 79, 477 U.S. Pennsylvania, McMillan v. (“The (1989) tencing Law and Practice 406 2411, 91, 2419, 91 L.Ed.2d 67 Evidence, by Federal Rules of their own (1986)(citing Williams, terms, apply sentencing phase do not 1080), presentence S.Ct. at even when Sentencing of a case. The Reform Act did defendants. report was not furnished to that.”). According not alter to one com- Hall, Fennel Due Process at Sen See & mentator: tencing: Empirical Legal Analy An principle The relevant-conduct and cross- the Disclosure Presentence Re sis of guidelines references between often Courts, ports in Federal 93 Harv.L.Rev. to ensure work offense level is court, reviewing One based on the actual offense behavior. stated, history sentencing, has “vir theft, drug trafficking, For offenses like tually placed no limitations on what a were fraud, evasion, or tax conduct from un- sentencing and it court could consider at charged or dismissed counts often reliance was clear that on uncorroborated aggregated through application of the permissible.” United States section, guideline relevant conduct Bowman, (4th F.2d Cir. lB1.3(a)(2).... omitted). 1991) added; (emphasis footnote Judge Breyer, a member of the Sentenc- promulgated Amendments since the Commission, the result of the describes original guidelines, proposals and new Sentencing Commission’s work as follows: being guide- considered in move the sys- lines further toward real-offense sentencing guideline system A must have tem. elements, many some real but not so unwieldy procedurally un- Hofer, becomes Agreements, Paul Plea J. Judicial Goals, Discretion,

fair. The Commission’s makes And FJC compromise. DIRECTIONS, May such a It looks to the of- No. at 3. charged fense to secure the “base of- 32 deals with Amended Fed.R.Crim.P. It then modifies that level fense level.” judgment:” “sentence and light aggravating in of several “real” or Judgment Sentence and factors, (listed mitigating sep- under each (a) Sentence. crime), general ad- arate several “real” (1) Imposition ... At of sentence. (“role offense,” in ex- justments the sentencing hearing, the the court shall ample) and several “real” characteristics counsel for the defendant and afford the offender, past the related to record. of attorney op- an the for the Government Breyer, Sentencing The portunity upon probation Federal Guide- to comment the Key Compromises Upon lines And The determination and on other mat- officer’s Rest, 11- They relating appropriate Which Hofstra L.Rev. ters sentence. (1988)(footnotes omitted). sentence, imposing The shall creation Before the court hybrid formally recog- of this also—

(A) defendant, by shall that the defendant and waived the the court determine provide and the defen- oppor- have had the the defendant counsel defendant’s copy report a of the presen- dant’s counsel with read and discuss tunity to presentence investigation,.... of investigation report.... tence The court shall afford the defendant and (B) for the defendant counsel afford opportunity the defendant’s counsel an to speak on of the to behalf opportunity and, report comment on the in the discre- defendant; and court, testimony tion of the to introduce (C) personally defendant address the relating any or other information to al- if defendant determine wishes and leged inaccuracy factual contained in it. present any and to make a statement mitigation of the sentence. information (D)If the comments of the defendant attorney for the Government shall testimony and the defendant’s counsel or speak equivalent opportunity to have an or other information introduced them the court. allege any inaccuracy pre- factual investigation report sentence or the sum- (c) Investigation. Presentence thereof, mary report part of the or (1) probation A officer When Made. shall, as to each matter controvert- investigation presentence shall make a ed, (i) finding allegation, make a as to the report imposi- the court before the (ii) a find- determination that no such tion of sentence.... necessary because the matter con- (2) Report. report presen- troverted will not be taken into account investigation contain— tence shall sentencing. (A) history information about the added). (Emphasis defendant, includ- characteristics greater This amended rule record, allows any, if ing prior financial criminal reports disclosure of condition, presentence any circumstances affect- defendant, upon reports but reliance these may behavior that ing the defendant’s contemplated pano in is still without the full imposing sentence or helpful be ply procedures defen- of trial available to a defen the correctional treatment short, rights dant at trial. In confrontation dant. (B) apply sentencing hearings do not as at of the offense the classification guilt question trial on the or innocence. catego- under the and of the defendant pleaded guilty, When defendants have as in Sentencing Com- ries established case, sentencing does not mandate con 994(a) to section of title pursuant mission frontation and cross-examination on infor probation officer believes to through mation to the court case; applicable to the defendant’s submitted presentence reports and law enforcement and the kinds of sentence Following sources. the mandates of Fed. range suggested category for such a constitutionally R.Crim.P. 32 is category committed such a sufficient offense guidelines they fundamentally fair defendant as set forth because are adequate afford the process issued Commission defendant due 994(a)(1); protections. pursuant to 28 U.S.C. and an explanation by officer of 32(c)(3)(A) Rule affords defendants the any indicate that a factors opportunity testimony “to introduce or oth- kind or different sentencing hearing. er information” at the length one within the different from reports frequently Presentence contain applicable guideline ap- would be more hearsay information confidential under all the propriate circumstances. unidentified sources. In the of con- event troversy concerning accuracy of the

(3) Disclosure. 32(c)(3)(D) presentence report, Rule man- (A) sentencing judge days imposing At least 10 before dates that either sentence, period finding disregard unless this minimum is make a or the contested

15H 32, Guidelines, arriving adoption Rule after of the matter in at sentence. amended, required pro- protections constitutional clearly applies to afforded defen- trial, guidelines. including dants at a criminal sentencing confron-

cedures under the rights, Blanco, tation are available at sentenc- 888 F.2d 907 United States v. See court’s, ing proceedings to limit the (1st Cir.1989). consid- The rule is silent as to the background, eration of the character and application the Confrontation Clause. conduct the defendant. through Hearsay submitted information sources, otherwise, enforcement or law long presen- as the So evidence presentence report may incorporated into a report tence bears “some minimal indicia of impeached by the defendant be attacked or reliability respect right of defendant’s to ways requiring in a without number court, process,” adop due the district after sources, underlying confrontation of guidelines, may tion of the still continue may confidentiality, security and involve hearsay rely consider and on evidence with personal safety. any requirement. out confrontation Unit Herrera, (6th ed States v. 928 F.2d 769 adoption Since Cir.1991); Robinson, v. United States 898 guidelines, there has change been no 1111, (6th Cir.1990); F.2d 1115 United statutory guide sentencing: basic Giltner, 1004, 1007 (11th States v. 889 F.2d Use of information for Cir.1989); Smith, United States v. 887 placed limitation shall on the No (6th Cir.1989). F.2d 104 concerning background, information Robinson, In upon we relied v. Williams character, person and conduct of a con- York, 241, 1079, New 337 U.S. 69 S.Ct. victed of an offense which a court of the Tucker, 443, United 404 States v. 92 may United States receive and consider 589, (1972). S.Ct. In reach purpose imposing appropri- for the an decision, ing its quoted the Robinson court ate sentence. language: judge may appro the Tucker “a 18 U.S.C. 3577. Under that section and § priately inquiry scope, an broad conduct discussed, principles has based law largely either as to the kind of unlimited long types been established that various consider, may information he or the source may information be considered Tucker, may from which it come.” 404 sentencing judge. See United States U.S. at 92 S.Ct. at 591. 18 See also Garcia, (6th Cir.1984); v. 725 F.2d 52 Unit 3577; U.S.C. United States v. Castella Burton, (4th ed States v. 631 F.2d 280 nos, (11th Cir.1990); Blanco, 904 F.2d 1490 Cir.1980); Marshall, 519 United States v. 888 F.2d at 907. (E.D.Wis.1981), F.Supp. aff'd, 751 719 F.2d Under the Sixth Amendment a defendant (7th Cir.1982). 887 It is the law that even (1) right: speedy public has the “to a illegally or other obtained inadmissible evi trial”; (2) “by impartial jury”; to trial may dence be considered (3) “to be informеd of the nature and cause involving guilt unlike a trial at accusation”; (4) “compulsory pro- Baylin, innocence. See United States v. favor,” obtaining in his cess witnesses (3d Cir.1982); Hill, 696 F.2d 1030 688 F.2d witnesses; and as well as confrontation of 20; States, at v. 551 F.2d Smith United (5) Many “assistance of counsel.” (10th Cir.), denied, 1193 cert. 434 U.S. trial, rights, applicable these are not (1977); 90 98 S.Ct. 54 L.Ed.2d United sentencing process. applicable to the Williamson, (4th States v. 567 F.2d trial, trial, (Speedy jury and confrontation Cir.1977); Lee, United States v. 540 F.2d catego- rights among are those in the latter (4th Cir.), denied, cert. ry). L.Ed.2d Such information, hand, addition, Bronaugh, on the other not be (6th Cir.1990), concerning guilt admitted at trial or inno 895 F.2d 247 and United Cir.1990), Miller, (6th cence because of Fifth and Sixth Amend States — denied, U.S. -, long-established prin ment concerns. The rt. ce (1991), cases, upheld ciple in a sen- all of these both before and L.Ed.2d 1512 Smith, finding 794], factual and sen- Alabama v. U.S. 109

tencing court’s [490 uncharged drug largely 2201, (1989). con- 104 tence based S.Ct. L.Ed.2d 865 Sen- (Chief Merritt,- dissenting in Judge duct. imposed tences on the basis of material Miller, unsuccessfully asserted Sixth misinformation under some circum- limitations). also Amendment See United stances, however, may pro- violate due Mocciola,. 13, (1st 891 16 F.2d States Roberts, 556, cess. 445 U.S. at 100 S.Ct. Cir.1989). at 1362. right to be informed of the nature The may district court consider hear implications extent and of crim- and the full sentence, say determining evidence in charges is deemed essential for the inal. op but the accused given must be an process, applies sentencing only but trial it, portunity to evidence refute entirely charge and more serious if an new must bear some indicia of minimal relia is added at without notice or bility respect right of defendant’s ” “any ‘hearing in the normal sense.’ See process. due United States v. Rodri Patterson, 605, 608, Specht v. 386 U.S. 87 1546, (11th Cir.1985); guez, 765 F.2d 1209, 1211, (1967), 18 L.Ed.2d S.Ct. as Otero, United States v. 868 F.2d 1412 88-89, McMillan, 477 U.S. at described (5th Cir.1989). challenges In to the evi 106 S.Ct. at 2417. dence considered Robinson, type In we discussed the of judge, must establish defendant upon and relied evidence made available challenged evidence is materi - customarily posi-guidelines sentencing unreliable, ally and that such false hearings, very type of consid- evidence actually false or unreliable information judge in by the trial each of cases ered served as the basis for the sentence. appeal. now under consideration Rodriguez, supra. 3577, 18, U.S.C. states that Title § Robinson, (emphasis 898 F.2d at 1115-16 placed on limitations shall be “[n]o added). concerning background, information guidelines provide themselves character, person of con conduct [sentencing] “the may court consider rele- of an offense which a victed regard vant information without to its ad- may United States receive and consider missibility under the ap- rules of evidence purpose imposing appropri trial, plicable provided that the infor- ate sentence.” Courts have noted that reliability mation has sufficient indicia of statute was enacted in “this order to support probable clearly rely accuracy.” authorize the trial its U.S.S.G. added). upon alleged (emphasis information of criminal 6A1.3 ac The defendant tivity for which the defendant had not appeal given in each of these cases on prosecuted....” been v. United opportunity “an to refute” information in Smith 1193, States, (10th Cir.), presentence report or from law enforce- denied, 830, 113, cert. 434 U.S. 98 S.Ct. instance, In ment sources. each the sen- (1977) (citing 54 L.Ed.2d 90 tencing judge found the evidence suffi- Tucker, 443, 404 U.S. States v. S.Ct. ciently support proper prepon- reliable to 589, (1972); 30 L.Ed.2d 592 Williams v. finding. derance of evidence York, People the State New Herrera, the defendant made the 93 L.Ed. 1337 same-type Silverman, objection made (1949)). judge may appropriately “[A] Catón, and unreliability Woodard about inquiry in scope, large conduct an broad presentence report. This court over- ly either as to the kind unlimited of infor argument: ruled Herrera’s consider, may or the source mation process requires We note that due from which come.” United evidentiary Tucker, beyond some basis mere alle- U.S. at gation in quoted presented an indictment be S.Ct. at in Roberts v. United States, support consideration of such conduct sentencing. See also relevant to a matter “[A]s may be as it has process, reliability due factual matters indicia of ‘sufficient of ’ ” only support probable accuracy. for sentence if to its considered ‍​‌​​‌​‌‌​​​​‌​‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌​​​​‌​‌‍as a basis Id. (citation omitted). minimal indicium of relia at 108 they have some bility beyond allegation.” mere United Herrera, (emphasis origi- 928 F.2d at 774 in 1030, (3d Baylin, 696 F.2d States v. nal). Cir.1982); see also v. Williams Okla Our decision reiterates what this court homa, 358 U.S. consistently has held—that relevant con- pro This due proof duct must be found to have “suffi- sentencing cess limit on the evidence reliability support cient indicia of to its may properly recog consider is probable accuracy” pro- as a matter of due commentary in to nized 6A1.2 Smith, protection. cess 887 F.2d at 108. provides: guidelines, which also, particular, Herrera, See facts, determining “In the relevant sen- Robinson, at 898 F.2d at 1115. tencing judges are not restricted to infor- Supreme emphasized The has Court mation that would be admissible at trial. of information breadth available to the dis- considered, Any may information be so sentencing. trict court at simply It is in- long as it hаs indicia relia- ‘sufficient correct, therefore, state, as does Chief bility support probable accuracy.’ its dissent, Judge in his Merritt that we hold may Reliable evidence be consid- “constitutionally reliable evidence of ered. Out-of-court declarations an the crime is unnecessary.” unconvicted may unidentified informant be consid- applied preponderance haveWe good ered there ‘where cause for the long adopted by evidence standard this identity nondisclosure of his and there is supported by virtually court and unani- sufficient other corroboration means.’ authority. mous allegations Unreliable shall not consid- be The dissenters conclude that the sentenc- ered.” ing judge in the case committed Silverman (1987) (cita- Guidelines Manual at error, hearsay,” clear on “triple based omitted; added). emphasis tions finding the relevant conduct evidence suffi- Herrera, (citing language 928 F.2d at 773 ciently drug quantities reliable add Smith, 887 F.2d at United States the amount involved the offense to 108). pleaded guilty pur-

Thus, court, in past, poses. the recent The district court found substan- Smith, Robinson, Herrera, up tially presen- has as indicated Silverman’s procedures report: held the utilized tence

by the district courts in these consolidated In he learned from a October case, appeals. guidelines pro each confidential informant that the informant cedure, procedure as well as the traditional obtaining had been cocaine from defen- matters, permits hearsay, during dant the summer of 1987 for the hearsay, even “second hand” from infor purpose selling re- it. informant presen mants and unidentified sources in ported July August that in reports, if confrontation, tence without gave kilogram defendant of cocaine to the district court finds it to have “suffi co-conspirator, the informant and a iden- minimally adequate” cient or indicia of reli Mourning, tified as James Michael ability. Judge specifically: Martin stated purpose selling They it. had a already selling quantity

This issue has been resolved hard time of cocaine distributors, against collecting Herrera this circuit in from their Smith, (6th up owing money 887 F.2d 104 Cir. and ended to defendant. 1989), where we held that conduct be informant’s information was corrob- yond alleged may Mourning upon in the indictment Mike his arrest orated long Mourning February be considered as as there is a mini 1988. Mike reliability: “[a]ny Agent mum indication of its that he had been sell- told Robins considered, long information so cocaine for defendant for two to 1514 require government that he had been in- order to that “the years and

three kilogram proof in the distribution of the make its in a fashion” at volved reliable Mourning also stated sentencing, Mike impose of cocaine. it would a confrontation gone to New York on two he had requirement that based on the unusual factual pound obtained a half and case, however, occasions situation involved.5 In that each time. He from defendant cocaine appellate court found that the district owned the safe that defendant stated made, make, finding court or could “[n]o Mourning kept at the address. was Id. at 103.6 reliability.” Silverman, 1533, at 1534. 889 F.2d approval among We cite with a found, addition, district court based on plethora of cases from other circuits that also deemed to be established what he inapplica conform to our conclusion on reliability: sufficient indicia bility to the of the Confrontation Clause See, e.g., United to the offi- sentencing procedure.

Defendant admitted Athens, Lopez, v. going 1505, (11th States he was to Ohio cer that 898 F.2d 1512 cocaine, Beaulieu, day attempt v. to sell the United States to Cir.1990); 893 (10th Cir.1990); Giltner, previously had involved been and that 1177, F.2d 1180 activities in Athens and drug related Agye v. 1007; United States 889 F.2d at Meigs Counties. mang, 876 1264, (7th Cir.1989); F.2d 1271 Carmona, v. United States 569, 873 F.2d Id. at 1533. Cir.1989). (2d 574 admissions, statements This evidence specific Caton’s Confrontation issue was interest), (against co-conspirators their parte ex government attorney re- investigation does not constitute police hearsay ferred to information from a “con- hearsay,” nor does it constitute “triple source, principal fidential informant” and a deep” “hearsay any three and four levels government sentencing witness at the hear- mistakenly cases as characterized of these ing gave testimony “alleged about reliabili- by the dissenters. ty” of the informant. reject expressly authority sole We Fortier, States v. United pre- The district court contrary, considered full Fortier held that in Cir.1990). (8th report, 12-page presentencing F.2d 100 report presentence presentence report 5. The Fortier indicated evidence contained in a informant had may provided that “a confidential told be considered the sentencer agent person drugs a third said the persons given opportuni [DEA] sentenced are addition, belonged to Fortier.” Id. at 103. In ty explain or rebut the evidence." United taped ambig- the "reference to the 686, [account was] Evans, (8th States v. 891 F.2d Cir. uous,” transcript presented was not at York, 1989) (citing United States v. 830 F.2d sentencing hearing. strong argument A can 885, (8th Cir.1987) curiam), (per cert. de requirement the confrontation be made that nied, 484 U.S. L.Ed.2d simply was introduced in that case because (1988)), denied, cert. no demonstrated indicia of reliabili- there were ty (1990); but see concerning "triple hearsay” statement not Fortier, United States 911 F.2d 103-04 by tape any proof, supported other no Cir.1990) (8th (reliance triple hearsay con reliability apparent or indicated. Id. Presentencing Investigation Report tained clause). violated confrontation panel Judge Lay, one of the members in 6. Chief 6A1.3(a) Section of the Guidelines states in Fortier, emphasize seemed to the unusual fea- part: hearsay triple ture of that case in a later resolving any dispute "In reasonable concern- apparently opinion. applica- He referred to the important general a factor deter- rule that affords defendants a ble mination, hearsay explain presentence may or rebut the court consider relevant chance information, report regard rather than a confrontation information without to its admissibili- right, reliability indicia of ty applicable when there are some under the rules of evidence supplied trial, in the information the court: provided that the information has suffi- reliability support proba- Generally, cient indicia of its consider accuracy." any information in a defen- ble all Further, Rivers, (8th 917 F.2d dant. See 18 U.S.C. Cir.1990) (footnote omitted). court has held that "[u]ncorroborated Catón,7 granted acknowledged brief, however, defendant a con- He his brief sentencing hearing, plea tinuance before the that his alone is not sufficient under supplemental presentence Guarin, considered a United States v. 898 F.2d 1120 Catón, (6th testimony Cir.1990), and the of Proba- and that upon brief the burden is Ray prove support tion Officer Mason and Detective of him to facts to a reduction. Kentucky hearing, State Police at the Rodriguez, See United States v. (6th testimony specifically Cir.1990). determined The district court’s “reliable,” passing clearly to be before decision on this is issue errone upon Catón. Besides the confidential infor- ous satisfy accep because Woodard did not mant, defendant, Phillips, another also in- responsibility tance of standards. See drug dealing, provided proba- volved Christoph, United States v. 904 F.2d 1036 — (6th Cir.1990), denied, tion officer with information U.S. -, about Catón. cert. drug The district (1991). court determined some L.Ed.2d 702 conduct not to be “relevant conduct” be- Next, challenged Woodard the addition cause there was “not a sufficient nexus.” points of two based the district court's lawyer’s The court also considered Caton’s finding aggravating that he had an role specific objections presentence to the re- under acknowledges U.S.S.G. 3B1.1. He port sentencing hearing. at thе ad- Catón relative, Sims, that his co-defendant and allowing Phillips mitted use his home to implicated him participant drug as a period” drug “for a three to four month offenses. Woodard also admitted that he dealing kilograms “four and that to five was money “the source of the pur for the through premises during pe- came cocaine,” “partner.” chase of and Sims’ lawyer they riod of time.” Caton’s stated problem regard was whether person they might knew the who “believe prosecution failed to plea adhere to the have been the confidential informant.”8 agreement in agreed which it not to take a consuming Catón admitted cocaine infre- position on this per issue. While we are quently companion and that his live-in was suaded that the sup court had evidence “consuming good a deal of cocaine.” port two-point addition to the base of There was no basis established Catón level, fense we will remand for consider that would mandate the revelation of the gov ation -the court as to whether the identity. informant’s position ernment took a con objected major trary plea

Catón that he was not a agreement. See United admitted, player dealing Nelson, (11th Cir.), cocaine but 837 F.2d 1519 through lawyer: his play- he was a cert. denied sub nom. Waldhart Unit “[TJrue deny States, er and he ... doesn’t that.” We find ed

no error in the handling district court’s of L.Ed.2d 58 the voluminous information sub- only pages in Woodard takes two his him, accordingly mitted to affirm the argue brief to the issue that it error to was district court’s sentence of defendant Ca- deny opportunity inspect him “the tón. probation officer’s notes of interviews already What has been said gave hearsay testimony against establishes which he legitimate appellant.” argument, that Woodard also has no In support consti- of his he case, however, tutional claim. pre- Woodard takes issue first cites Giltner. That pointed out, with the refusal of the district viously supports govern- court to two-point him position. award reduction in his of- ment’s Woodard concedes that acceptance fense responsibility specifically permits level consideration Giltner essentially upon plea guilty. sentencing. based his information at presentence 7. Caton’s brief referred to United States v. Sil In the “defendant’s version” of the verman, (6th Cir.1989), report 889 F.2d 1531 for estab it is stated: ”[H]e advised infor- lishing preponderance approached night inquire of the evidence stan mant him if he one dealing plea agreement purchase dard and with a could some cocaine.” Catón later sold consideration of "relevаnt conduct.” him cocaine. 14-page Giltner, F.2d at 1007. He is correct defendant’s memoran- dum, testimony probation v. Bar argument his United States officer (6th Cir.1989)9 (the only cross-examination, rett, F.2d 855 subject testimony cites), ex holds other case defendant. officer “[t]he right constitutional a defendant’s Sims, Catón,10 tent of Gary testified that and Ron- on the basis of invalid ‘not to be sentenced (defendant Simpson nie another related ” information,’ “must and that defendant offense), others, drug among were sources any chal opportunity to rebut given an of information on Woodard’s role for the (emphasis Id. at 865 lenged information.” presentence report Kentucky as well as Stevens, added); United States v. see also State Police records. (6th Cir.1988). Since Woodard conceded that he was involved given opportunity to ex Woodard as a “middleman people” for tobacco information, any challenged plain or rebut transactions, number of cocaine but he in his contention that he be he must fail they “non-profit” claimed that were ar- probation the officer’s ordered access to rangements. persuaded He Sims to sur- participants with other notes of interviews drug charges, render on the him and told and sources of information Woodard’s my “its as much yours.” fault as it is cites no au role in the offense. Woodard We find no error in sentencing proce- the sought thority gives right him the he Woodard, dure as to except defendant we notes, in to these interview his brief obtain regard govern- remand with to whether the they if exist. reneged plea agreement, ment on its and if testimony judge The district considered so, what effect this have had on the others, among nephew, from Woodard’s ultimate sentence. buffer; “people used as a that Woodard stated, For the reasons we AFFIRM the money; it was Woodard’s was Woodard’s sentences as to defendants Silverman and Having testimony heard Woodard’s deal.” regards Catón. We also AFFIRM in most major transaction for a kilo of about Woodard, as to defendant but REMAND cocaine, district court found that he question government’s on the limited court,” and that “he “willfully lied to alleged plea agreement. violation of the pass- probation officer.” Before lied to sentence, judge district ing experienced NELSON, Judge, DAVID A. Circuit lengthy presentence him a re- had before concurring. response, objections detailed port, a report, government judgment I concur in the notice and in most of level, Judge increase in opinion. it would seek an offense Wellford’s I sepa- write Judge imposing Merritt was also on the Barrett which thе court in Chief relies given panel explain that defendant’s basic which held sentenc must be a chance to or rebut information, ing right procedure “to be sentenced on the basis was for rebuttal Rone, lies within the sound discretion of the sen- information. United States v. accurate (7th Cir.1984); tencing judge...." [United 743 F.2d Stevens, (citation Stevens, [140,] (6th 851 F.2d at n. States Cir.1988) v.] [ omitted; added). emphasis Barrett, 890 F.2d at Bar 865. In ].” rett, opportunity did the defendant have right 10. The to cross-examination of co-defen- support position, evidence to his thus presenting doubtful, co-conspirators dants and at trial is given "he was a full the court held and fair and even more doubtful is the existence of such government's opportunity to rebut the evidence right sentencing. at There little reason to (There on that issue.” Id. was no evidence of suspect that either Catón or Sims would have declarant, against whom threats the de Woodard, favorably testified and thus have made, allegedly testifying subject fendant were liability Any increased their own and sentence. sentencing hearing.) to cross-examination at the Stevens, right claimed confrontation so toas cross-exam- Barrett, following cited in contained the ine them as sources at Woodard’s language: was of no real substance. Woodard had the process require evidentiary event, wished, Due does right, any subpoena in if he challenged hearing on all information in the explain either Sims or Catón to rebut or pre-sentence report. "Although government's proof against a defendant and information accuracy who contests of PSI material on him. however, my individual The defendant rately, to record in Kikumura —an inter the “minimal indicia of thoughts on use of national terrorist who was said a confi determining reliability” test for the admis- dential informant to have trained other ter reject I sibility test would camp Valley rorists the Bekaa —a “probable accuracy” pre- test favor of the coming Lebanon before to the United 6A1.3(a) on the scribed U.S.S.G. § —and kill by explod States maim or Americans argument by defendant advanced Catón ing anti-personnel Navy bombs at a recruit proof standard of appropriate City office New York sen —was (Neither guideline sentencing. of the other imprisonment years.2 tenced to for 30 the latter issue defendants has raised be- guideline range only defendant’s 27-33 panel.) fore the en banc months, upward so the trial depar court’s intelligible, To make what follows I need ture resulted in a sentence more than 10 explain that if one assumes Mr. Catón long within-range times as as the maximum belonged history category in the criminal departure magni sentence. With a of that officer recommended where largest departure tude—said to be the placed guidelines (Catego- under the history guideline sentencing, of federal I), ry and if Mr. offense level was Caton’s see 918 F.2d at 1089—the Third Circuit (Offense as calculated district sentencing proceeding concluded that the 14), range prescribed in Level the sentence fairly could be characterized as “a tail Sentencing the U.S. Commission’s Guide- wags dog of the substantive imprisonment lines Manual was a term of Kikumura, 1100-01, offense.” 918 F.2d at of not less than 15 months and not more quoting v. Pennsylvania, McMillan Judge than 21 months.1 Forester ultimate- 79, 88, 106 U.S. 91 L.Ed.2d ly departure authority exercised con- And truly under these unusual 3553(b) ferred 18 U.S.C. and sen- § circumstances, held, the Third Circuit imprisonment tenced Mr. Catón to for 46 hearsay statement of a confidential infor (This months. sentence—two months short sentencing mant could be considered at years of four less than one-fifth the —was only “reasonably if found to be trustwor 20-year maximum sentence authorized (a thy” thought standard I should have 841(b)(1)(C).) Congress in 21 U.S.C. § comparable already prescribed to the one argument. Now to defendant Caton’s. Commission, Sentencing by the see Relying Judge opinion Becker’s in Unit 6A1.3(a)), departure U.S.S.G. while the Kikumura, (3d ed States v. 918 F.2d 1084 only itself could be based on facts estab Cir.1990), argues only Mr. Catón not that lished evidence that was at least “clear hearsay ought evidence not to have been Kikumura, convincing.” and 918 F.2d at sentencing hearing, admitted at his but procedural 1100-03. The lower levels of findings also that the factual on which his protection historically applicable sentenc upward departure ought was based to have (i.e., proceedings “some minimal indici- been made under “a reasonable doubt stan reliability” “pre (or um of and a proof dard of at least a clear and con ” standard).... Kikumura, ponderance of vincing I the evidence” standard it, support argument. factfinding) up,” read does not Caton’s had to “ratcheted exposition 1. As stated in the detailed defen- 2. The factual details of this remarkable case are pages opin- case at length sentencing dant Caton’s 1506-07 of the set forth at in the trial court’s Judge origi- written Kikumura, ion Chief Merritt for the F.Supp. opinion, United States v. panel majority, nal officer recom- (D.N.J.1989). There was no room for doubt findings mended “relevant conduct” that would guilty charges of the that the defendant was produced higher guideline range: have a much him; against through lawyer, Kunt- his William imprisonment for months. The 151-188 district sler, by jury stipulated he waived trial judge, five-page opinion in a filed after he had moving "all of the ment_” facts that led to the indict- matter, evidentiary hearing conducted an on the Id. at 333. explicitly rejected this recommendation. The (Forester, J.) gave district also that notice considering upward departure "the Court guideline range.” from the month] [15-21 said, guideline because the extraordi- months —more than 10 Third Circuit times the magnitude departure from the nary imposed in Kikumura. There maximum — Id. at 1101. guideline range. may well be other unusual situations where appropriate it would be to use the “clear The Kikumura way court went out of its the-preponderance convincing standard evidence” ap- to stress standard held reliability minimal indicia of test and the plicable in Kikumura —other circuits have “clearly appropriate” “perfectly are recognized possibility4 the in- —but Id. adequate” in most cases. at case, stant in my judgment, pres- does not 1100, garden variety 1101.3 “At a sentenc- ent such a situation. This case is more like ing hearing,” where Mobley, United States v. depart upwards “dramatically,” does (3d Cir.1992), 458-459 where the Third Cir- qualifica- the Third Circuit stated without rejected cuit process argument a due in the 'preponderance “a standard tion that context of a six-month enhancement of a Id. at 1103. appl[ies]_” (Emphasis sentence that would otherwise have been supplied.) 21 months. definitely gar- case is Mr. Caton’s point One final needs to be made: Mr. variety. up- den court’s honestly Catón cannot departure blame his 46-month ward of 25 months comes no- departure where close to the of 327 sentence on the Commission. squared 3. Kikumura thus cannot be with the sentence of less than 60 months if the court argument, by Judge by preponderance advanced Merritt found of the evidence that bar, Patterson, Specht visibly possessed during case at the defendant firearm (1967), offense, 87 S.Ct. 18 L.Ed.2d 326 commission of the the McMillan Pennsylvania, nothing Court could "see McMillan v. scheme that [this] (1986), require constitutionalizing would application warrant burdens of proof sentencing.” guide- Id. at of the Confrontation Clause to the S.Ct. at federal sentencing system. Every appeals line court of Judge sug- Becker and proposition reject- Prof. Orenstein have to have addressed such a has Court, gested Orenstein, Supreme acting through that the ed it. See Becker and “The Federal committee, appropriate Years,” advisory ought to Rules of Evidence After Sixteen 60 Geo. 857, pro- amend the (1992), Federal Rules of listing Evidence—a Wash.L.Rev. 888-89 cases at subject congressional approval cess to under 28 n. 160. changed U.S.C. 2074—to § reflect role of add, connection, Specht I would in this that in sentencing hearings by giving persons convicted Dоuglas specifically Justice endorsed Williams Orenstein, protections.” “more cit., op. Becker and 241, York, 1079, v. New 69 at 890. There be situations where (1949), Court, Supreme L.Ed. 1337 where the protections prevent injustice, additional would Black, speaking through Justice concluded that presented but I doubt that such a situation is in presented on the facts the Constitution did not guidelines Mr. already Caton’s case. The have sentencing judge considering bar hear- given protection against Mr. Catón more the use say though judge even information used the hearsay of than he would have had before their deciding impose information in a sentence of adoption, they require because more than "some death. reliability” they require minimal indicia of suf- — Rehnquist’s opinion As to then-Justice reliability support "prob- ficient indicia of McMillan, specifically applied endorsed and accuracy" hearsay. able U.S.S.G. York, Patterson v. New 432 U.S. 97 S.Ct. 6A1.3(a). justification I can see no (1977), Supreme where the conflating “probable accuracy" and "minimal rejected affecting Court a contention that facts Note, reliability,” indicia of see "Confrontation severity punishment proved must be “be- Sentencing,” and (1992) 105 Harv.L.Rev. McMillan, yond a reasonable doubt." our en banc court endorses the —and 83-85, at 2414-16. The McMillan probable accuracy majority opinion— test in the rejected argument pro- court also that due hearsay against but I am satisfied that the used required convincing cess use of a "clear and too, Mr. appropriate Catón met the test. So standard; at evidence” least in the case before it view, my against did the evidence used defen- notes, (which, as Kikumura was not one in dants Silverman and Woodard. wagging which a tail was a substan- dog), tive offense the McMillan court had little Kwong-Wah, 4. See United States v. Lam difficulty concluding preponderance (D.C.Cir.1992); that "the F.2d 682 United States v. Schus Id., ter, process." (7th Cir.1991); satisfies due standard 91, 477 U.S. at 948 F.2d Notwithstanding (8th 106 S.Ct. at Townley, Cir. 1991); Julian, scheme at issue in McMillan took United States v. St. F.2d away (10th Cir.1990). impose the trial court’s discretion to 569 n. 1 n taking sentencing judges have been where a discretionless is not a case His years, Judge mindlessly applying a Rube into account for hundreds of judge, trial up by a commit- Goldberg imposed thought dreamed the sentence he formula Forester Washington, was despite of social scientists tee he did so Mr. Catón deserved—and any sentence that impose Commission, constrained Sentencing not because person would find aberrational. reasonable it. worse, Mr. was sen- Catón For better unhappiness with the result Mr. Caton’s a consci- way by tenced thе old-fashioned — desire that the discre- in this case reflects a judge giving objective trial entious historically sentencing judges vested in tion picture, to the entire careful consideration guide- severely curtailed more than the elements of that insofar as the at least I lines curtail it now. understand de- supported by what consid- picture were sire, fully but I do not share it. reliability, sufficient indicia ered to be exercising judgment as to then his best MERRITT, Judge, dissenting. Chief appropri- be most the sentence that would Sentencing Commission and its standing particular individual ate for the chairman refer to the “relevant conduct” before him.5 “The of the Fed- provisions as Cornerstone colleague Judge Jones Sentencing, as our In these eral Guidelines.”1 eloquent opinion,6 very recently said cases we see the “relevant conduct” three intensely human remain an “is and must double, tri- system run amok. Unreliable hu- person No sensible wants process.” quadruple hearsay pro- information ple and solely by for- beings sentenced man to be prosecution about other un- vided mula; system is guideline if the to increase crimes is used sub- convicted intended, Congress way to work sentences over stantially the defendants’ . judges send crimi- it is essential that who original punishment provided level of significant measure retain a prison nals Sentencing Guidelines for the crimes just fair and to do what seems discretion the defendants have been con- for which judge who particular, in each case. The new victed. unconvicted plea guilty accepted- defendant Caton’s up by prosecution crimes are made recog- set the sentence at 46 months notice after discretion, office without and he nized that he had such district must guilty plea, and the Acting type on the of information used it. level, Merritt, dissent, specifies suggests more than one base offense Judge that to a line in his (iii) (ii) specific and degree likely offense characteristics to have occurred before the Two, scene, (iv) adjust- Chapter and Sentencing on the cross references Commission arrived Three, Chapter shall be determined on imposed ments in sentence in this case was somehow the following: by by prosecutor an the basis of the the rather than controlled (1) unbiased, judge. committed or aided objective, all acts and omissions neutral federal The defendant, by or for which ‍​‌​​‌​‌‌​​​​‌​‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌​​​​‌​‌‍and abetted the of the facts at careful and detailed statement accounta- opinion Judge defendant would be otherwise pages Merritt the ble, 1506-07 during of majority the commission original panel that occurred the does not wrote for conviction, preparation for suggestion. the offense of support this offense, attempting to in the course of or responsibility for that of- detection or avoid fense, Davern, 6. United otherwise were in furtherance or that J., (6th Cir.1992) (Jones, dissenting). offense; of that (2) solely respect of a charac- to offenses Steer, Wilkins, Jr. & John R. Rele- 1. William W. 3D1.2(d) group- require would ter for which § the Federal Conduct: The Cornerstone vant Sentencing of counts, ing multiple acts and omis- of all such Guidelines, 41 S.C.L.Rev. part of of the same course sions that were plan or as the conduct or common scheme conviction; "relevant conduct" as offense Section 1B1.3 defines (3) the acts or harm that resulted from all follows: (a)(1) (Factors specified and in subsections Deter- omissions Relevant Conduct § 1B1.3. above, (a)(1) object the Range) and all harm that was mine the Guideline omissions; Conduct) (a) (Offense Chapters of such acts Two ap- (4) specified any (Adjustments). speci- other information otherwise Three Unless fied, (i) guide-. plicable guideline. offense level where the the base punishment years quintuple hearsay on the basis of based on the multiply unconvicted crimes. these new suggests witnesses who no one un- were justifies available. Our Court this kind of Silverman, In the district court believed simply holding sentence the Confronta- under the “relevant con- compelled itself inapplicable.2 tion Clause system to increase defendant’s duct” years by five over the convicted holding constitutionally This Court’s —i.e. This was done on level. the basis offense evidence of the unconvicted crime reliable sources, hearsay from unnamed multiple unnecessary enough. is bad What —is prosecution the- and a DEA furnished makes the decision even worse is that concerning additional agent, unconvicted Court need not have reached the constitu Catón Woodard The cases crimes. simply interpreted tional issue at all had it prosecution The asked for and are similar. Guidelines accordance with Con probation large officer received from gress’ Instead, intent. this Court treats conduct” increases in the sen- “relevant provisions, the “relevant conduct” as sen multiple hearsay tence on the basis tencing “imperatives” rigid to be followed confederates, unnamed, usually criminal See United States v. Dav ly like statutes. furnished information who have ern, (en (6th Cir.1992) 970 F.2d 1490 prosecution about other unconvicted banc). construing In so the relevant con Silverman, example, crimes. provisions, violates, my duct our Court officer, police unnamed informant tells а opinion, both the unambiguous language of chief, police who a DEA who tells tells key Sentencing sections of the Reform Act officer, agent, who tells a who 994(1), 28 U.S.C. and 18 U.S.C. § court, major that Silverman was a tells 3553(a), Process, as well as the Due No drugs year quarter- dealer in before the tice and Confrontation Clauses of the Con for which he is ounce transaction convicted. stitution. unwillingness Court’s drugs prior unconvicted amount confine the pro- is then estimated Commission and its transactions applicable officer and Silverman’s Guidelines within statutory bation sentence is automatically increased more than five constitutional limitations is unfortunate be- opinion you Q. addition to the 2. A belated of the court Did become aware that he had been majority opinion page at deny 1514 of seems to investigation by under the Athens of Ohio multiple that the District Court relied on Department? Police enhancing Silverman’s sentence. If Yes, A. I had a conversation with the chief of majority say, this is what the means to the Court Athens, police Georgia Ohio. —Athens clearly proves The record is in error. Q. you What did learn from the chief? additional sentence based on unconvicted con- investiga- A. Ira Silverman had been under entirely hearsay, duct is founded most of it department tion for some time his and the deep. Judge more three or levels Graham be- University Department Ohio as a dealer of specifically multiple hearsay low ruled that is cocaine, marijuana acid, and also at one time page Appen- admissible. He states at 301 of the LSD. clearly dix "the facts indicate that this [the Athens, you Q. Were able to if ascertain only top two ounce transaction] police department any Ohio had evidence of iceberg" and that "the information before the any his involvement of those activities? could lead to the conclusion that he [Sil- A. I don’t know that we discussed real or previously engaged in the sale of not verman] only they hard evidence. It was more that had cocaine, perhaps one kilo but one and a him, investigating they been were aware two kilos of half or cocaine.” And for this selling drugs campus. that he was Judge Graham increased the reason sentence. I Transcript, Presentencing Hearing, United nonhearsay can find no evidence in the record Silverman, (S.D.Ohio, States v. No. CR-2-88-025 finding which such a could 19, 1988), Aug. Appendix, contained in Joint No. example testimony be made. Here is of the an 90-3205, Judge at 250-51. Moreover Graham agent prompted of DEA Robbins that this find- page Appendix ing: explicitly accepted of the presentence report key Now, of officer Dierna aas you 'Q. did become aware that Mr. sentencing. report appended basis for That is investigation Silverman had also been under by appendix opinion. as an Investigation? to this The facts stated the Ohio of Criminal Bureau they accepted conducting there the court A. I was aware were over defendant’s investigation, objection that’s I correct. do not know are all of them 4 and —most specifically investigation deep. what their included. 5 levels 994(1) plain grave injustices unambiguous. it allows and Seetion is cause of the severely the role of Sentencing undermines because It authorizes the Commission protecting rights federal court only impose: the accused. penalty an incremental for each offense first, statutory

I will discuss the issues in a case in which the defendant is con- ques- proceed and then to the constitutional of— victed trilogy of

tions raised this cases. (A) multiple offenses committed in the same course of conduct that result in the System Violates I. Relevant Conduct ancillary jurisdiction exercise of over one 994(1) 28 U.S.C. § offenses; of the or more We have seen how our Court has chosen (B) multiple offenses committed at dif- up- to treat the numerous relevant conduct ferent times. adjustment possibilities ward contained 994(1)(1988) added). (emphasis 28 U.S.C. § throughout “imperatives” the Guidelines as language Sentencing No Reform Act or mandates for the court to Sentencing of 1984 Com- allows.what deviation, apply automatically without mission and now Court have done: im- our largely based on the information concern- posing penalties incremental for uncon- ing uncharged and unconvicted conduct victed offenses either “in the same course provided by prosecutor. No distinction of conduct” or “at different times.” The drawn, sentencing may according repeatedly Act refers to a “defendant who Court, convicted conduct and between guilty See, has been found of an offense.” complet- conduct and unconvicted between n 3552(a),(b) (c), 3552(b), e.g., 18 U.S.C. & §§ attempts. ed crimes and unsuccessful 3554, 3555, 3556, 3561, 3571, 3581. It does point The first I want to make is that not refer to unconvicted relevant conduct. position clearly contravenes the Guide- The Guidelines should not be read to enabling legislation. Sentencing lines’ treat convicted and uneonvicted conduct Reform Act of the Act which autho- reading alike because such a exceeds the Guidelines, expressly does not rized granted enabling authority legisla mention or authorize such a “relevant con- Sentenсing tion to either the Commission sentencing system.3 In duct” 28 U.S.C. plain language a court. It contravenes the 994(1) (1988), Congress provide does § enabling legislation. See United multiple that will deal with of- James, 597, 604, 994(1) penal- fenses: allows “incremental § (1986) 92 L.Ed.2d offensés, multiple ties” for but limits such (starting point statutory interpretation penalties to the situation which a defen- itself). language of the statute See multiple dant is “convicted of offenses — INS, U.S. -, -, also Ardestani committed in the same course con- (1991) 515, 520, 116 (a L.Ed.2d 496 Congress provided extent duct.” To this “strong presumption” plain exists sentencing system for a conviction offense language, using ordinary meaning just as the states have created similar , words, clearly expresses congressional situations.4 The statute does not authorize intent). Evidently, Commis penalties when a defendant is incremental express does not feel restrained only single during sion convicted of a offense 994(1). language It has seized its period time in which also have impose penalties authority if he incremental committed other offenses is not charged involving multiple of- and convicted for those offenses. in circumstances Every process sentencing state commission in the ed conduct would violate due and other Parent, States, contrary provisions. constitutional Dale G. United sion, to the federal commis- Structuring Criminal The Evolution adopted sentencing has conviction Sentences: offense 62-63, Sentencing Guidelines Minnesota’s sentencing" instead of so-called "real offense or of (1988). 159-61 sentencing on of the basis "relevant conduct." They they did so because believed that such a supra "relevant conduct” not based on convict- 4. See note 2. heeding 611-12, language re-

fenses without S.Ct. 71 L.Ed. 793 penalties of such to stricting imposition Congress’s limitation of the Sen the offense of conviction conduct related to tencing rule-making Commission’s authori only.5 ty to explicit. convicted offenses is The Congressional expression of this limitation superficially takes the The Commission sentencing restricts “incremental” for of proper that it is appealing position to im- fenses to “convicted” offenses. Nor penalties for pose incremental unconvicted Cf. Singer, man 2A Statutory claims that Sutherland conduct it courts have because (5th 1991). Supporters ed. point out Construction 47.23 The always done so. that § traditionally majority’s had of sentencing expansion, types courts unbri- of con respect dled discretion to what infor- permissible duct for Guidelines defendant mation about the would be con- violates maxim” statutory this “ancient imposing a sentence. sidered when That cоnstruction, Passenger Corp., Railroad flawed, however, reasoning is because 414 U.S. at S.Ct. and ne acknowledge prosecutor’s does con- glects meaning plain assigned to be to in the trol of the outcome relevant conduct Congress’s directly expressed words so system the fundamental distinction be- 994(1): only multiple “convicted” of § allowing tween an unbiased court to consid- fenses punish will énter into incremental er and compelling unlimited factors the ment deliberations. impose a sentence that reflects another, almost identical selectively information disclosed context, Supreme Court has held that Vesting prosecutor. control over sentenc- Congress expressly limited the unbiased, objective, ing in an neutral feder- only calculus arising to that conduct completely al is different from vest- the offense of It conviction. held that res- prosecutor, such discretion may only titution to the required victim be party The to the case. difference should 3580(a) under 18 U.S.C. for the crime of obvious, § apparently it is but not obvious conviction, not for unconvicted relevant to the Commission. Supreme conduct. The Court said that if legislative history I can find no contrary Congress had intended consider- allow 994(1) language supporting § unconvicted, ation of “relevant conduct” at- proposition Congress that intended to defendant, “Congress tributable to a would punishment for mandate unindicted or un- likely language have chosen other than ‘the as well as convicted offenses convicted of offense,’ question without refers fenses. In the absence of clear evidence ” conviction. Hughey v. offense of Congress augment intended to States, 411, 418, U.S. 110 S.Ct. penalty charged a defendant receives for a 1979, 1984, (1990) (empha- penal convicted offense additional added). concluded, sis Thus Court conduct, uncharged ties for the venerable dissent, without arising losses construction, statutory rule of expressio crime, from a the offense of conviction i.e., unius est exclusio “the ex alterius — establishes the “outer limits” of a restitu- pression [thing] of one is the exclusion of congressional tion order. The intent be- against the other”—counsels so broad an 994(1) hind to limit penalties incremental interpretation. generally See National plainly to convicted conduct mirrored Corp. v. Passenger Railroad National As Supreme reasoning Court’s Passengers, Hughey. sociation Railroad 453, 458, 690, 693, interpretation same given should be L.Ed.2d 646 (1974); Commissioner, the same Neuberger language “convicted offense” 97, 101, U.S. 85 L.Ed. 58 both the restitution incremental pun- (1940); States, Ford v. United provisions ishment the enabling act. proper this, already 5. It is to enhance defendant's sentence they Guidelines do go but for conduct related to the offense of mandating conviction penalties further also incremental offense, degree planning separate such as role in the prosecution offenses has required, history. and the defendant's prove. criminal not and not be able to branch,” in the to and not of individu- judicial simply It is form to refuse interest bad by policy expressly society wrongly stated Con- in who accused follow the als be gress, contrary policy perpetu- power of a by prosecutors in favor whose has now been agency, especial- by ated an administrative enlarged through pros- so our The default. congressional policy is de- ly when effectively ecutors now control both the degree judicial con- signed maintain a of to charging system sentencing sys- and the sentencing process. I do trol not over the extent, ever-increasing tem. And to an the brothers, my and why sisters understand are one and the same. two and def- of sweet reason usually the voices pen- treatment of the “incremental What gov- of majoritarian the branch erence to 994(1) alty” language of does the Sen- § ernment, following in the Sentenc- persist give tencing in the Commission Guidelines Department the of ing and Commission Commentary? simply It never mentions it policy of stated Justice in their defiance the rigid so anywhere. It does in favor of a interpret- statute we are expressly the conduct,” system of unconvicted “relevant public ing. I as a matter of understand greatly which allows enhanced sentences why theory choice of incentives the Sen- constitutionally based on unreliable evi- Department of tencing Commission the dence. might it is in their interest Justice believe See process. to control the System II. Relevant Conduct Violates The Tullock, James M. Buchanan & Gordon 3553(a)6 18 U.S.C. § Logical Calculus Consent: Foundation of point rigid is “rele- The second Democracy Constitutional It is of ignores vant conduct” also in their bureaucratic interest to certainly 3553(a) enabling of the act. This section § appropriations do Congressional so. provides mandatory language the first depend governmental power upon it. But the con- sentence that District Court should anyone adopt it is else’s to not interest facts and fix “not policy sider the a sentence contrary expressed to the one greater necessary Congress. certainly comply” than to with a It is not in the interest (a) dangerous “just judiciary group “purposes” as the “least of factors: 3553(a) offense, provides part purposes 6. The text of fol- § cumstances and the of sentencing. lows: 98-225, Sess., reprint- S.Rep. Cong., i)io. 98th 2d (a) imposing to be Factors considered in (emphasis ed 1984 U.S.C.C.A.N. sentence.— added). impose The court shall a sentence suffi- section-by-section analysis of the 1987 cient, greater necessary, than to com- but not Sentencing Reform Act of Amendments ply purposes paragraph with the set forth in Representatives of reinforces the House (2) court, the subsection. The in determin- of sequence the correct the view that particular imposed, sentence to be 3553(a): steps take § must first into account shall consider— 3553(a) Sentencing as enacted Section (1) nature and of the of- circumstances (1) requires the court Reform Act history and fense and the characteristics factors, including pur- consider several defendant; (2) sentencing, "impose poses a sen- (2) imposed— the need for sufficient, greater but than neces- offense, tence not (A) to reflect the seriousness of the sary, comply purposes to Thus, with” of sentenc- law, respect provide promote to for the and to ing. the court the sentence if finds that just punishment for the offense. sentencing guide- applicable (B) called adequate to afford deterrence to crimi- greater necessary comply conduct; than lines is to nal 3553(a) purposes sentencing, (C) section public protect to from further defendant; require impose to would seem the court crimes of the (D) provide more lenient sentence. needed defendant with might argued, interpretation, training, vocational Such educational or medical care, Sentencing Reform inconsistent with the or other correctional treatment manner; judicial discretion in Act’s intention limit most effective ... however, 3553(a) sentencing. argument, Referring Report is not the Senate ex- That plains: convincing. Reform Act eliminate, limited, requires judge, imposing judicial but did The bill before sentence, history to consider and charac- discretion. offender, 31,947 (1987). Cong.Rec. teristics of the the nature and cir- 1524 dissenting opinion “reflect which will the seri- recent States

punishment” United offense,” (b) the the need for of Wise, (8th Cir.1992), ousness v. F.2d 393 conduct,” (c) criminal the of “deterrence argues that which he the Confrontation protect public the “further need applied Clause must now be to the sentenc- defendant,” (d) the need to of the crimes 994(e) ing process. By ignoring and § through the defendant “edu- rehabilitate Commission, 3553(a) Sentencing § and other correctional treat- cational ... Court, now our have created a “relevant ment,” (e) availability of various sentencing system conduct” of “mechani- duty forms of sentences. This alternative applied cal” rules to be without deviation according the facts to these to consider on the constitutionally basis of unreliable “just punishment” steps impose By developing sentencing evidence. code .greater necessary” than is “not rules, of Sentencing “mechanical” Com- duty required of the the first Sentencing mission under the Reform Act by the statute. of 1984 “revolutionized the manner enabling most prominently The act’s fea- which the courts persons district element of tured individual convicted of federal crimes.” Burns “purposes sentencing” pro- of cases is the — -, States, -, enumerating After vision in this section. (1991). 3553(a), purposes these in 18 U.S.C. Con- The system old informal of indeterminate purposes gress referred to the times not adversary the course of its instructions to the Com- in nature. mission and the courts.7 Kenneth Fein- Independently the lawyers case berg, who as Chief Counsel of the Senate adversary system, and the judge —us- Judiciary primary Committee was a author ing probation officers who communicated Commission, legislation creating the of the private with him in parte ex his —did recently said: investigation own charac- offender’s that, strong argument can A be made ter, family circumstances and criminal his- ignoring Congressional mandate to tory, as well as the harm to victim. purposes, consider the Commission has allocating There were rules no burdens of very failed to consider variables relevant proof parties concerning between individually tailored sentence. sentencing facts, existence of were nor explicit language absence more concerning there rules disclosure detailing from the Commission the con- judge’s sources of im- information. Most given justice pur- sideration criminal portant all, system old did re- appear poses, courts would to be free to quire to find facts or his to base respon- cite the abdication of Commission sentence on the existence' or nonexistence sibility in this area.8 particular group fact or of facts. The Sentencing Commission and our Court nonadversary old process require did not simply ignore language “pur- of this factfinding judges district had an because poses” approving rigid section in “rele- . discretion, absolute and unreviewable so vant conduct” which results in large long imposed ex- increases in sentences as the sentence did not automatically administered for unconvicted statutory conduct. ceed the maximum the of- Sentencing pro- fense. was an intuitive System III. Relevant Conduct Violates cess. Confrontation Clause changed.9 All agree that has Under my colleague, I Guidelines Judge Chief Eighth Circuit, H, education, Richard Arnold of the age, employment Ch. Pt. in.his Miller, Taking Feinberg, 7.See Daniel J. Mark Freed & 8. Kenneth R. The Federal Guidelines Purposes Sentencing, "Purposes" Seriously: Neglected Underlying and the Require- (1991). Fed.Sentencing Rep. Fed.Sentencing Sentencing, ment Guideline Rep. 9. The Commission in its commen- tary to states: § 6A1.3 sentencing family community by isolating elevating and circumstances and longer considered. These facts no importance particular of facts the sen- usually help the defendant are irrele- tencing process. A court must Mainly just it is the facts con- vant. now stage find facts at each of the nine sentenc- cerning activity fur- criminal —facts ing steps prescribed by the Sentencing prosecution nished crime, Commission 1B1.1. For each § punish- form—that are now The relevant. unconvicted, both convicted and the code crime, must suit the ment not the individual operative selects concerning certain facts Only uniformity defendant. sentences is of activity important criminal as and excludes important. Long Rehabilitation is out. other ameliorative facts as irrelevant. The sentences based on retribution are in. operative automatically pro- facts selected Although the use of officers duce “offense level” with a narrow sen- continues, system completely new tencing range judge for the to follow. The changes discretionary, nonadversary, imposed appeal reviewable on sentencing pro- nonfactual nature of the right.11 as a matter of by introducing the adversary cess sentenc- ing hearing, precise change the need for accu- The dramatic importance findings disputed rate of facts other about factfinding of concerning unconvicted criminal conduct and absolute rules to be sentencing process, crimes and the applied requiring without deviation the dis- elimination of rehabilitation and intuitive dramatically trict court to increase the sen- consideration, factors from should now re- tence based on the unconvicted conduct. quire reliability at least that of the guidelines, Both 6A1.3 of the entitled § factfinding process be tested under the Disputed (Policy “Resolution of Factors Confrontation Clause.12 Heretofore the Statement)” and Federal Rule of Criminal thought Confrontation has not Clause been 32(c)(3)(D)require specific Procedure find- apply phase of the ings of fact.10 infоrmal, criminal trial because of the non- demonstrate, As these cases the exis- adversary process nature of the and the particular tence or nonexistence of a fact— absolute, unreviewable discretion of the example, money amount involved judge, district a discretion unrelated to the or, drugs possessed or three cases finding particular facts. here, under review the existence of addi- York, The case of Williams New wrongful tional may automatical- conduct— 93 L.Ed. 1337 ly multiply double or even in some cases (1949), longer applicable. is no particular judges tenfold the sentence that Williams, judge a state sentenced the de- required impose are under the Guide- murder, ques- fendant to purpose lines code. The entire death for and the the sen- tencing disparity code is to eliminate in tion was whether the Due Process Clause— informality system] objections The imposition the old was to [of before the of sentence.” shall, 32(c)(3)(D) explained by particu- provides some extent the fact that Rule that "the court controverted, rarely finding lar offense and as to each matter make a offender characteristics allegation_” pro- highly as to the Further the rule specific required sentencing had a findings vides that "a written record of such consequence. longer This situation will no appended determinations shall be to and accom- sentencing guidelines. exist under pany any copy presentence investigation of the disputed sentencing court’s resolution of fac- report....” usually

tors will have a measurable effect on applicable punishment.... [Disputes provides appellate 11. 18 U.S.C. about factors must be resolved re-. view of Guidelines sentences. with care. 6A1.3(b) provides: 10.Section "The court shall provides only Section 6A1.3 Guidelines disputed sentencing resolve factors in accor- that the court will consider the relevant evi- 32(a)(1), (effec- dance with Rule Fed.R.Crim.P. regard admissibility dence "without to its under 1, 1987), notify parties trial, tive Nov. provid- its tenta- applicable the rules of evidence at findings provide opportu- tive a reasonable ed that the information has sufficient indicia of nity reliability accuracy.” support probable for the submission of and written oral its Clause13—allowed Court said the Colorado not the Confrontation general hearsay to use infor- sentencing contemplated the trial enhanced an ad- sentencing process. The versary proceeding finding mation in the and “a new makes clear that the deci- opinion ingredient Williams fact that wаs not an of- to allow the “modern” intended the- charged.” sion is fense Id. at “indeterminate,” “individualized,” ories of 1211-12. Under such circumstances the sentencing “discretionary” intuitive de- alleged opportuni- offender must “have an signed the offender to be to “rehabilitate” heard, ty to be be confronted with the without constitutional limi- put practice into him, against right witness have the experi- could undermine the tations that cross-examine, and to offer evidence of his new, contrasted the more ment. The Court 610, own.” Id. at 87 at 1212. S.Ct. system of rehabilitation with the “humane” Specht expressly distinguishes case system of determinant sen- previous harsh sentencing system reviewed tencing on retribution and deter- based ground on the Williams that the Colorado experimental system rence. The “new” re- requires factfinding scheme in an adver- in 1949 viewed in is now the Williams sary setting rather than the exercise of said, system characterized, “old” it is — pure unreviewable discretion without the “disparity.” very It unconscionable is the necessity finding Supreme facts. The system rejected by Commis- has respect Court continued to cite and system sion in the re- Guidelines. factfinding distinction based on drawn in nonadversary, viewed Williams was Specht. Pennsylvania, See McMillan v. indeterminate, system individualized vest- 79, 88-91, 2411, 2417-19, 477 U.S. 106 S.Ct. ing complete judge discretion with- (1986). out the to find facts and without the need especially It is important that the cross- requirement multiplied that sentences be requirements examination of the Confron- of unconvicted on the basis- conduct. The tation Clause be observed when the evi- system put place by the into new sentenc- question, present cases, dence as in the respects different in all these code is primarily consists triple of double and hear- system replaced. from the former say alleged accomplices, confederates believing We should be misled into co-conspirators. requirement This be- opinion applies to all Williams when, comes important even more as in sentencing systems, for is not Williams cases, these part the sentence is based only subject on the from the Su- law multiple hearsay on prosecu- offered preme recognized The Court has Court. tion from unnamed confederates. sentencing system changes, that when the long Supreme A line of Court cases inter- applicable the nature of the constitutional preting the Confrontation change. Clause has creat- Specht limitations also In v. strong presumption against ed a Patterson, 605, 1209, the trust- 386 U.S. 87 S.Ct. 18 (1967), co-conspirators’ worthiness required L.Ed.2d 326 the Court statements application conspiracy that are made after a of the Confrontation has termi- Clause to sentencing nated in arrest. system at hand. the most recent case on There the sentencing point, Illinois, Colorado Lee v. allowed the Court held inad- co-conspirator’s sentence to increased to missible a life from a confession. It years upon finding by maximum of 10 said “truthfinding that the function of the offender, that the based Confrontation Clause uniquely is threat- conduct, past large, “if left at consti- accomplice’s ened when an confession is bodily sought tutes a threat of harm to members against to be introduced a criminal public, or is an habitual of the offender and defendant without the benefit of cross-ex- 607, mentally 530, ill.” Id. at 541, S.Ct. at 1211. amination.” 476 U.S. 106 S.Ct. 1949, decided, right 13. In when Williams was prosecutions. Pointer ment as a in state The older Texas, 400, 1065, concept S.Ct. liberty” 13 L.Ed.2d of “ordered under Palko v. Con (1965), yet necticut, incorporated had not the Con 302 U.S. 82 L.Ed. 288 (1937), guiding frontation Fourteenth principle Clause into the Amend was still the then. reasoning process Due to that leads 90 L.Ed.2d confront to the conclusion that the “strong motivation to im- new co-conspirator’s changed grid him- has so the rules that and to exonerate plicate the defendant protec- self,” about defendant must now be allowed the co-conspirator’s statements right of the in the crime tion the defendant’s involvement confrontation. suspicion.” “special should be viewed System IV. Relevant Conduct (quoting from Bruton v. United Id. Violates Due Process States, J., (1968) (White, dis- 20 L.Ed.2d provisions The “relevant conduct” omitted). (citations suspicion senting)) This fundamentally new code are so “reality criminal stems from the inequitable contrary principles partners in a process, namely, that once justice they evenhanded violate due recognize ‘jig up,’ they crime process pro- of law. The relevant conduct any identity tend to of interest and lose weighted visions are now so in of the favor immediately antagonists, rather become prosecution that must have defendants 544-45,106 accomplices.” than 476 U.S. at charged their sentences increased for con- at 2064. S.Ct. jury duct for which the has returned a guilty” if judge verdict of “not the district court, con- In the three cases before the believes the conduct occurred. The rele- provided hearsay of oth- federates evidence system acquittal vant conduct now makes er crimes. In most “relevant conduct” by jury the on some counts irrelevant to double, triple country, cases across the imposed the sentence for the. convicted of- accomplice hearsay fur- quintuple even Martin, fensе. United States 972 F.2d v. informally probation nished officer (6th Cir.1992) (holding jury 349 that a ver- guilty plea prosecution the after a is acquittal dict of is irrelevant because sen- multiply the It is often used to sentence. tence must be increased for “relevant con- only evidence used to increase the sen- the occurred). if duct” court believes conduct system tence. That of “relevant conduct” Accord, Moreno, F.2d United States v. 933 hearsay operat- on is now standard based Cir.1991). (6th 374 in ing procedure the federal courts across country.14 good process is a exam- The due violation occurs in the the Silverman because, police plea offi- at the ple. Unnamed informants tell a instant case time .the chief, entered, cer, police tells the who tells a must the defendant receives no who officer, agent, probation DEA notice of the crimes for which who tells a additional court, sen- who tells the that Silverman was a the court will enhance the defendant’s already drugs year Only plea after the is en- major dealer the before the tence. compile quarter-ounce probation for he is tered will a officer the transaction which drugs for prior convicted. The amount of convicted and dnconvicted crimes which imposed depending is then estimated will be on the unconvicted transactions uncharged, probation officer and Silverman’s “relevant conduct” information automatically prosecutor increased more chooses to sentence is disclose quintuple through office. years than five based on the Such, sentencing places almost suggests system who no one a of witnesses the sentence in the justifies Our court exclusive control over were unavailable. confronting arguments prosecutor judge because the now is com- result without uncharged contrary recognizing implica- pelled to base the sentence provided by prosecutor. doing. largely it is The court avoids conduct tions of what judge duty system effectively This removes the confrontation on two fronts —its further, sentencing. comprehensive descrip- editor of the the field of He is the 14. For a more system operation, Sentencing see Daniel J. Reporter tion of the Director of Federal Freed, Federal in the Wake Guide- Sentencing Program at Yale Law the Criminal Unacceptable lines: Sentencers, Limits on the Discretion the main ideas for the Sen- School from which 101 Yale L.J. Professor tencing of 1984 emanated. Reform Act country's leading one Freed is scholars meaningful sentencing proseсution possession criminal for li- any role from prosecutor quor prohibition for process May- and substitutes violation of laws. substi judge. given personal Such ors and their cities were —which judge prosecutor after tutes financial stake in the outcome of these entered, guilty gives and which plea of particular cases. The in Tumey Court held explicit no notice crimes process party that due forbids a in interest be sentenced before the the defendant will being substituted for the process. plea due See United sentences, imposing fines and so that —violates Kikumura, principles violates fundamental to allow a J., Cir.1990)(Rosenn, (rea (3rd concurring) party in interest to control the process soning that a defendant’s due process. 273 U.S. at 47 S.Ct. at 444. rights may by sentencing sys be violated Connally Georgia, See also v. 429 U.S. judicial “replaced tem that discretion over 245, (1977) L.Ed.2d prosecutorial discretion”); (holding process rights defendants’ due Gutierrez, F.2d States statutory have been violated scheme Cir.1990) J., (8th (Heaney, 354-55 dissent paid justices peace for each ing) (reasoning that the limita Guidelines’ issued); Murchison, search warrant In re a court’s traditional tions on 623, 627, fundamentally authority “are unfair and a (1955) (holding process L.Ed. 942 due vio- process”). violation of due See also Unit allowing judge, lated had who acted as Roberts, 1359, F.Supp. v. 726 ed States one-person grand jury, pass sentence on (D.D.C.1989), 1365-68 rev’d sub nom. charge stemming grand from the initial Doe, v. 934 F.2d 353 United States Note, jury hearing); and Procedural Due (D.C.Cir.1991)(holding that the Guidelines Sentencing Process Judicial Felo- pro “effect substantial violations of due (1968). ny, 81 Harv.L.Rev. Impar- 837 and are thus unconsti cess” on defendants justice requires tial no less than visible “key sentencing tutional due to exercise of sentencing process control of the by an by judge responsibility ... not a but impartial participant consid- —heretofore attorney”), prosecuting and United States judiciary ered to be the role of the —to Brittman, F.Supp. v. 687 1355 comport pro- with traditional notions of due (E.D.Ark.1988), part, in 872 F.2d 827 aff'd provisions cess. The relevant conduct are (8th Cir.1989) (holding sphere that the of purport disaster for Guidelines that “properly judicial discretion is disparity provisions reduce because these comport in nature” in order to with due impose disparate sentencing system process requirements). prosecutorial based on discretion but con- imposition Notice to the defendant and prosecutor’s ceal public. role from the unbiased rather than litigant by party proce- control are crucial B. Notice process. dural elements of duе in- These dispensable elements are now absent from sentencing system A pun- that institutes sentencing system under the Court’s uncharged, ishment for unconvicted crimes holding provi- the relevant that conduct based on uncross-examined also interpret- sions of the Guidelines should be principle process. violates the notice of due treating ed as convicted and unconvicted prosecutor The up makes the crimes for conduct the same. which a imposed sentence will be after required plead defendant has guilty been A. Control Sentence Prosecutor guilty, or in not the cases here. It is impossible for the Supreme

The defendant to know at Tumey Court held v. Ohio, stage proceeding this critical what S.Ct. 71 L.Ed. (1927), sentencing process may that the unconvicted crimes he be sentenced not placed party be under the control of for. The Criminal Rules Committee of the Conference, litigation. drafting interest Tumey Judicial its 1989 placed mayors Ohio law town control of amendment to Rule 11 of Federal Rules Sentencing, Guidelines ney, at 172-75 Procedure, prob- recognized the Criminal (noting striking re- most in this that “the created features lem that the Guidelines probation under officer’s reli- process noted are the spect. Committee system, government’s advice files for his find- the Guideline ance on the “[t]he guarantee fact, and, turn, required give cannot ings court is the court’s reli- not pleads guilty will [presentence report’s] a defendant who conclu- ance on the understanding as to recommendation,” a lack of guidelines later claim de- sions and time of guidelines at the importance inability officer’s to at- spite likely to serve as a plea. No advice is trial or to have access to the trial tend the against post-plea protection complete Note, transcript); 81 Harv.L.Rev. at confusion.” Fed. ignorance claims of (recognizing informa- note advisory committee’s R.Crim.P. by probation needed officers is fre- tion amendment). (1989 made Committee quently prosecutors, under control of “who impossible for because it is this statement disinterested”). expected cannot be to be give the defendant notice of the court to Allowing a defendant to be sentenced in he will be the unconvicted crimes for which way for convicted and unconvicted the Guideline con sentenced under provi- crimes violates Sixth Amendment Sentencing ceived Commission requiring that the accused be “in- sion According to the approved by our Court. formed of the nature and cause of the used, procedure now a defendant will stages accusation” at the critical specific un- accurately informed such just case. a critical charged against him until crimes eonvicted stage. Mempa Rhay, presentence probation officer’s after 254, 19 L.Ed.2d 336 The re- report issues. The indictment and the ar quirement receive fair no- that defendants game raignment merely open the of defin process ‍​‌​​‌​‌‌​​​​‌​‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌​​​​‌​‌‍tice as a matter of due under the See, e.g., United States v. the crime. comparable pro- Fifth Amendment and this (D.C.Cir. Harrington, of the Sixth Amendment is funda- vision 1991) (Edwards, J., (“Assistant concurring) Arkansas, 196, v. Cole mental. In 333 U.S. say, Attorneys have been heard to U.S. ... (1948), 514, 517, 92 L.Ed. 644 68 S.Ct. candor, many open that there are with observed, principle “No unanimous Court ‘games played’,” indicting in defen to be clearly process due is more established plea bargaining). game in The dants and specific charge, and a than the notice of the played prosecu later be out when the will heard in a trial of the issues chance to be probation turns officer its tion over charge, desired, if by that are raised handpicked uncharged crimes for list of the among rights every the constitutional sen which it wants the defendant to be proceeding, in a criminal all accused prosecutor’s The office will draw tenced. courts, federal,” state or up charges the defendant will the for which Morrissey indictment, Supreme Court actually be sentenced after Brewer, conviction, list plea, and and then turn this (1972), prin- applied these same through probation to court the L.Ed.2d 484

over the sentencing system. held generally Report the Feder ciples to a state It See office. Study (Apr. system parole revocation inval- al Courts Committee at 138 the Iowa the Due Process Clause. Mor- In 1990) (commenting system dis id under rissey the accused was reincarcerated torts the role of officers and violating parole condi- recommending greater examination of the the state board parole officer con- parole. The upon effects of the Guidelines tions of Koh, process Note, the probation system); Y. trolled this outcome because the Steve Reestablishing Judge’s Role large measure to his the Federal deferred recommen-. Sentencing, 101 Yale L.J. allegations 1120-21 of misconduct. dation and cross-examine (1992) (addressing was not allowed to probation officer’s ina accused given not notice of gamesmanship the witnesses and was bility prosecutorial to curb against him at allegations and evidence preparing presentencing reports); Hea- the stage proceeding the рleas the that led based on of the critical defendant or even reviewing pleas concerning to his reincarceration: of the victim the need for sentencing systems fairness of such under probabil- deterrence and retribution and the Clause, Supreme the Due Process formulated, ity of rehabilitation. As applied Morrissey Court in a flexible stan- system relevant conduct does not allow the dard: judge principle trial to consider the first

It has been said so often this Court Congress established in require and others as to not citation of 3553(a), impose authority process that due is flexible “greater on the defendant a sentence than procedural protections calls for such as necessary” to deter or rehabilitate. Such particular situation demands. considerations are eliminated the sen- procedures of what due “[Consideration tencing grid. The Fifth Amendment consti- process may require any given under set requirement give tutional notice to the begin of circumstances must with a de- charged by “present- accused of the crimes precise nature of termination eliminated, ment or indictment” is as is the government function involved as well as requirement Sixth Amendment’s private interest that has been affect- accused be “informed of the nature and government ed action.” and, here, cause of the accusation” as (citations 92 S.Ct. at 2600 enjoy right “shall ..'. to be confronted omitted). standard, Applying this against pros- witnesses him.” The parole sys- Court held that revocation ecutor submits the new crimes information question process by tem in violated due in hearsay plea form after the or verdict. allowing parole officer to control the The statutory constitutional and rules re- process, although the official action was quiring eliminated, reliable evidence are parole name of the taken in the state three deep, and four levels board, by failing give adequate notice of cases, routinely these used as evidence accused, risks to the nature of the Heaney, new crimes. See Guide- by refusing parolee allow the to cross- Sentencing, lines at 210 & 223-24. The against examine the witnesses him. The routinely persons instructs accused “relevant conduct” under review appear probation officer, before the here suffers the same constitutional defect. prosecutor sometimes with the or his dele- gate present, purpose for the of incrimina- V. Conclusion ting charges. See, themselves on the new present Under the formulation of the e.g., Miller, United States v. Court, system, conduct” “relevant (6th Cir.1990)(Merritt, C.J., 1323 & 1329-33 Justice, Department and the (trial dissenting) seriously misled the Commission have the normal eliminated making defendant into statements that add- protections constitutional afforded an ac- ed more years sentence). than three to his (cid:127) separation-of-powers principle cused. The Thus, that an Article III court should control the system of relevant conduct as sentencing proceeding criminal as a consti- formulated tends to take over the entire controversy” tutional “case or is avoided process, displacing original because the court is bound to sentence the base charged offense level for the crime the basis of the defendant on information and replacing convicted and it with much levels, by prosecutor plea greater forwarded after the offense for the new uncon- sentencing grid or verdict. The takes over victed This usually crimes. has the effect mechanically controls the court’s increasing deci- of several fold only sion. The the nominal sen- placing under the control of the tencer. of the sentence is thereby prosecutor, by Control eliminating judgment produces person vested in the who judge, thereby eliminating the trial new information about prosecutor unconvicted crimes to be need for the to observe the nu- plugged grid, namely, prosecu- into the safeguards merous constitutional which tor. The court not alter the sentence process. otherwise attach to the criminal constitutionally pro- The result is a infirm agent August DEA case effectively ju- cedure that is shielded from supplied Silverman the informant dicial review. co-conspirator and an unindicted with one kilo of cocaine was to be sold to

APPENDIX According informant, them. to the co-conspirator and the unindicted had REPORT, EXTRACT OF PRESENTENCE large never distributed such quantity SILVERMAN, UNITED STATES v. They proceeded of cocaine. to “front (S.D. Ohio, No. CR-2-88-028 out” the quickly cocaine and became in 12, 1988) July agent debt Silverman. The DEA Part A. THE OFFENSE the informant willing testify would be

to the one kilo transaction and associated involving activities request- Silverman if Conduct Offense ed to do so the Court. subject 4. Ira Silverman was the of two separate investigations conducted 6. The Ohio Bureau of Criminal Identifica- Drug (Co- Enforcement Administration tion-Investigative Division in- received Branch)/Columbus lumbus Police De- formation in involving drug distri- partment and the Ohio Bureau of Crimi- bution activities in which Silverman was Identification-Investigative nal Division. involved. According to the BCI case Information obtained from these law en- agent, investigation began after the agencies forcement and the DEA in Cin- Department Athens Police and Ohio Uni- cinnati, Ohio, revealed that Silverman versity Security contacted him regarding developed suspect drug dis- the belief that Silverman distributed co- Meigs, tribution activities in Athens and on University Campus. caine the Ohio Franklin early Counties as as the sum- Captain 7. A on Depart- the Athens Police mer of According to the DEA during presen- ment was interviewed (Columbus Branch) and the BCI Investi- investigative process tence regarding his gative Division, Silverman was consid- knowledge of According the defendant. ered a multi kilo cocaine distributor Captain, Depart- the Athens Police pro- Central Ohio on based information compiled intelligence ment had informa- vided confidential informants used in pertaining tion drug Silverman’s distri- investigations. each bution activities in the Central Ohio area. Agents 5. On October DEA August the Athens Police Columbus, Ohio debriefed their confiden- Department interviewed one of their in- regarding drug tial informant distribu- formants who advised that Silverman tion activities. The informant advised transported shipments of cocaine from that Silverman was the head of a cocaine the State of New York to Ohio trafficking organization that distributed bimonthly speci- basis. The informant monthly kilos of cocaine on a basis in transported fied that Silverman approxi- Athens, Further, Columbus Ohio. mately pounds two of cocaine to the Co- the informant admitted that he met Sil- approximately lumbus area and two during verman the summer of 1987 and pounds to the Cincinnati area. Accord- began selling quantities drugs for him ing to Department, the Athens Police shortly thereafter. The informant ad- informants’ statements substantiated the agents supplied that Silverman co-

vised compiled intelligence information caine to various individuals who further regarding file Silverman’s drugs activities. Meigs distributed the in County Captain Depart- and The Athens Police University Ohio State and Ohio ment University campus willing indicated that he would be According areas. to informant, testify these to to the individuals sold be- truthfulness of the eight tween two and investigation ounces of cocaine on aforementioned required if weekly basis. The informant advised to do so the Court. co-conspirators unindicted

man and two in. November were involved On investigation, the same BCI During the 8. informant made a the confidential used the Ath- informant confidential buy one-eighth of an ounce controlled specified Department to ens Police from one of the unindicted co- of cocaine large vol- was agents that Silverman pur- conspirators. The cocaine was in of cocaine Central ume distributor City in recorded funds chased for $260 Ohio. laboratory reveal that the net and tests Administration Drug Enforcement 9. grams 3.36 weight of the cocaine was Cincinnati, obtained infor- agents in Ohio purity level of with 93%. September pertaining of 1987 mation in 14, 1988, February the confidential 11. On activi- drug distribution to Silverman’s spoke with one of the unindict- informant According agents, a female ties. to the co-conspirators and advised that he ed charged federally posses- with defendant of an purchase wished to one-fourth knowledge discussed her sion of cocaine following day, of cocaine. On the ounce Sep- a cellmate. On of Silverman with spoke narcotic detec- the informant telephonical- the cellmate tember given he in $260 tives at which time was them ly contacted the DEA and advised instructed to City recorded funds and supplied to her of the information one-eighth of an ounce of co- purchase According to the cell- female defendant. residence, Upon his arrival at the caine. mate, the inmate advised that she had co-conspirator the unindicted advised the previously with a cocaine been involved informant the cocaine transaction Miami, based in Florida. She distributor completed until Silverman could not be an indicated that she had met individual possession in arrived because he was promised had named Ira Silverman who the cocaine. The informant left resi- making freedom re- her more decision regard- spoke and with detectives dence garding cocaine The cell- distribution. pos- fact Silverman indicated, mate that Silverman resided cocaine. The informant re- session of (West Green) apartment complex near the residence and met with turned to University Campus the Ohio and had a informant, According to the Silverman. previous carrying weapon concealed con- gave for the co- Silverman $260 Further, viction. she advised that Silver- kept money caine but Silverman brought through the man cocaine Colum- complete the transaction. Ac- did Airport bus International and distributed information, cording to the Silverman kilogram Meigs volumes Athens kept money applied it to a debt date, agents At a later DEA Counties. by the informant. The informant owed Cincinnati, attempted inter- Ohio to proceeded leave the residence and ad- view the inmate based on the information of,the one unindict- vised detectives that cellmate, provided by she denied her but him that co-conspirators ed had advised Ira It should that she knew Silverman. possession was in of at least Silverman agents be noted that DEA Cincinnati ounces of cocaine. The detectives two they willing have indicated that would be being followed Silverman who was chauf- testify the truthfulness of this in- limou- fered in a white Lincoln Town Car requested formation if to do so stop the proceeded Detectives sine. Court. transported the limo driv- automobile According agent DEA case er, an unindicted co-con- Silverman and Columbus, investigation their was initial- spirator Headquarters to Police until a allegedly ly targeted at individuals who warrant could be obtained. search drug worked for Silverman as distribu- tors, February A of the limousine revealed a From October 1987 to search bag powder which was inside a agents, DEA Detectives from the of white gym bag. Laboratory tests re- Department Columbus Police and the black powder was cocaine with discussed the vealed that confidential informant weight grams. purity drug operations in a net 52.9 related which Silver-

I533 instant offense and drug associated relat- previously ed activities. As indicated level of the cocaine was In addi- 93%. Paragraph DEA received information tion, a list names officers confiscated from an informant that Silverman is an tapes on a notebook and a number of organizer aof cocaine distribution net- tape recordings which contained of tele- agent work. The DEA case confirmed phone conversations between Silverman investigation involved Silverman and various individuals. The DEA case approximately five additional individ- agent indicated that the list of names uals who distributed cocaine for him. As represent- written Silverman was offense, relates to the instant Silver- drugs ed individuals who distributed appears culpable man to be due to the throughout him in- Central Ohio. This possession fact that he was in of the formation was substantiated the DEA fifty-three grams of cocaine and was an agent through case contacts with the participant active in the foiled transac- Meigs County Sheriff’s Office. Sil-, tion with the confidential informant. February 13. On detectives in- kept City verman recorded funds and terviewed the limousine driver who was decided not drugs to sell to the infor- transport hired Silverman to him to mant. places during day. various driv- er indicated that he drove to 2280 Muir- MARTIN, Jr., F. Judge, BOYCE Circuit wood and was met Silverman. The dissenting. defendant advised the driver that he join I Judge in Chief dissenting Merritt’s approxi- would need the limousine for however, opinion; I also write separately to mately five hours and that he had er- set forth a few additional observations. I Columbus, rands to run in Ohio and need- majority believe the has selected a stan- University ed to travel to Ohio in Athens. proof dard of analysis relevant conduct paid Silverman the driver in cash. $175 respect shows little fоr individual lib- The driver recalled that as ex- Silverman erties. I accepted Even if the use of a black, apartment, ited the he carried a preponderance of the evidence standard nylon bag. duffle The limo driver of- analysis, relevant conduct I would still dis- put bag fered to the trunk but sent in majority this case because the has kept Silverman declined bag apply failed to faithfully. the standard passenger compartment him in the The evidence used to increase Silverman’s limo. that, prove sentence was insufficient arrest, 14. On the date of the one of the not, likely engaged more than Silverman expressed willing- individuals arrested Although additional criminal conduct. cooperate ness to signed with Police and jury may have found guilty Silverman a consent to search his residence at 2280 offenses, numerous he at least deserves to Muirwood Drive. The individual advised sentenced based evidence that is reli- quantity marijuana that a present able; he should not be sentenced evi- .on at the home and that Silverman had a nothing dence that triple more than hear- key to the home and stored various say. Any sentencing system rational things at the house. The individual ad- require should evidence used for sen- among mitted that the items stored at his tencing through must be verified accurate approximately twenty home was ten to and reliable sources. dynamite sticks of stored in a safe in the

bedroom. The A Depart- problem Columbus Eire more fundamental with the Squad ment majority’s analysis adoption Bomb was contacted in or- is the explosives. der to secure the Narcotic preponderance of evidence standard in rele- pounds Detectives confiscated three analysis. Judge vant conduct William W. marijuana and a set of scales in addition Wilkins, Jr., chairperson who is of the U.S. handgun. to a semi-automatic Commission, recently referred 15. Ira highly Silverman is considered cul- provision to the relevant conduct as the

pable regarding his involvement in the “cornerstone” of the federal Wilkins, Jr., legitimacy jus- fairness and of the criminal William W.

guidelines. See The system. Cornerstone tice Relevant Conduct: Guidelines, 41 S.C.L.Rev. the amalgam of the relevant conduct (1990). Although this assertion be provision preponderance and the of the evi true, the “cor- majority has contorted presents dence one additional standard sentencing guidelines to nerstone” of the problem: opportunity for abuse. What preponder- to use the government allow the appears guidelines happening to be cases standard to convict ance of the evidence government goes is that to trial and uncharged activity. criminal defendants of charged beyond proves activity criminal Any justice system must delineate what then, sentencing, a reasonable doubt and applies in proof liti- or standard burden government proves additional un of a standard of gation. “The function charged activity by preponder criminal a concept in the proof, embodied ance of the evidence. The final result is and in the realm of Due Process Clause up that the defendant ends with a sentence factfinding, is to ‘instruct the factfinder substantially that has been increased be concerning degree of confidence our uncharged activity. cause of the criminal society thinks he should have cor- troubling government’s Even more is the partic- factual conclusions for a rectness of acquitted use of conduct to serve as the ” adjudication.’ Addington v. type ular enhancing basis of a defendant’s sentence. 418, 428, 1804, Texas, 441 U.S. 99 S.Ct. Moreno, See United States v. (1979) (quoting In re 60 L.Ed.2d — (6th Cir.), denied, U.S. -, cert. Winship, 397 U.S. (1991) (an 116 L.Ed.2d (1970) (Harlan, J., L.Ed.2d 368 acquittal does not bar a proof concurring)). The standard of serves considering acquitted conduct in of error to allocate the risk between the sentence). imposing A defendant who impor- indicate the litigants and to relative acquitted has been of some criminal activi to the ultimate decision. tance attached Id. ty activity but convicted of other criminal aspects litigation, society of civil many only pyrrhic victory has won because long preponder- the use of the has allowed appears when the defendant in the court the evidence standard. Under such ance of acquitted room at he finds the standard, marginally the risk of error is activity riding on the back of the convicted only that, plaintiff and he need show activity. not, he is correct. likely more than Howev- likely things There are few harder to er, system, justice in the criminal which is a judge you wrong. admit than that as a are system under which a criminal defendant now, however, I my early see the error of deprived liberty, society could of his has goals guidelines. endorsement of the required the use of the reasonable doubt Perez, At the time I wrote United States v. proof standard. This standard of “reflects (6th Cir.1989), my 871 F.2d 45 which was society places the value on individual liber- first encounter the federal ty.” Id., 441 U.S. at 99 S.Ct. at 1809. guidelines, firmly guide- I believed that the standard, Under such a the risk of error is jus- lines could elevate the federal criminal government. entirely Today, almost on the system sup- tice to a new level. I even system endorsed a majority has under ported Judge Stephеn Breyer’s argument, government can which the convict defen- Review, which he made the Hofstra Law uncharged criminal conduct dant of sim- many compromises that, were made ply demonstrating to the court more implementation not, sentencing guide- likely engaged than the defendant has lines, Thus, but that a better would activity. majority the criminal emerge. Stephen Breyer, proclaimed society just has See The Federal how little the liberty. Key Compromises Guidelines and the federal courts value an individual’s Rest, proclamation Upon they This 17 Hofstra L.Rev. is not a we need to Which wrong I I society issue to a millions of 405 now believe was already strongly question endorsing guidelines. guidelines, Americans were, they as ambitious have become just guidelines; they rigid

more than are Requested In the Matter of the mandates. I still believe EXTRADITION of James throughout the federal should be as Joseph SMYTH. However, possible. guide- uniform as America, UNITED STATES disregard lines fundamental notions of due Plaintiff-Appellant,

process slip-shod system and create a only thing in which the prison matters is the maximization of sen- SMYTH, Joseph James Defendant- tences. say “The best we can about Appellee. [the sentencing guidelines] is what Herbert No. 92-10435. Hoover said of Prohibition: this has United Appeals, States Court of ‘great been a experiment, ... in mo- noble Ninth Circuit. far-reaching purpose.’ tive But [and] Oct. experiment, like that earlier this one has Cabranes, failed.” Jose A. A Failed Nat.L.J.,

Utopian Experiment, July (U.S. Judge District Ca- speech branes based the article on a University Chicago). delivered at the As any experiment, failed it is now time that we rid experiment ourselves of the new,

move on to a improved system. case, course, In this we are not faced question with the Congress whether ‍​‌​​‌​‌‌​​​​‌​‌​​‌‌‌​​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌​​​​‌​‌‍should sentencing guidelines. eliminate the We are faced ques- with the more narrow proper application

tion of the of the rele- provision. vant conduct question, On this I Merritt, Judge believe Chief as well as the dissenters Restrepo, (9th Cir.1991)(en banc), 946 F.2d 654 have strong arguments made reject- favor of ing preponderance of the evidence stan- many guidelines

dard in areas of sentenc- adopting the reasonable doubt standard, urge and I majority and other seriously courts to argu- consider these arguments ments. I find the well-reasoned hence, thoroughly persuasive; I must respectfully majority’s dissent from the

opinion. TANG, Before: BEEZER and

KOZINSKI, Judges. Circuit

ORDER

The court has received and reviewed the supplemental district court’s findings of fact, which were pursuant submitted this court’s September limited remand of 1992. The court concludes that the record support does not finding the district court’s “special circumstances.” The need to

Case Details

Case Name: United States v. Ira Silverman (90-3205) Morris G. Woodard (90-5816) and Gary Caton (90-5733/91-6506)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 22, 1992

Citation: 976 F.2d 1502

Docket Number: 90-3205, 90-5733, 90-5816 and 91-6506

Court Abbreviation: 6th Cir.