SentencingTips - Federal Court - Disputed Drug Quantity
Can the district court use testimony of co-defendants from their guily pleas, before the grand jury, or in other trials to establish drug quantity, even though you and your client were not present to cross examine the witnesses?
Yes, provided the Court gives you advance notice before the sentencing. Fed. R. Crim. P. 32(i)(1)(C); United States v. Bey, 384 Fed. Appx. 486 (6th Cir 2010).
If the Court uses this type of evidence without giving you advance notice, object and ask for a continuance so you can gather and present rebuttal evidence if the Court intends to use the evidence. The right to meet and rebut adverse evidence comes from the right created in Fed. R. Crim. P. 32(i (1)(C) to comment on matters relating to the sentence. Sometimes the Court will backtrack and disavow reliance on the information. Remember, the Court must resolve disputed matters if they will affect the sentencing. Fed. R. Crim. P. 32(i)(3). The Court must make findings; it can't simply adopt the findings in the presentence report. United States v. Treadway, 328 F. 3d 878 (6th Cir. 2003). The purpose of the rule is to make sure that the sentence is based on reliable facts found by the court itself. Id. Without proper fact finding the Court of Appeals will reverse the sentence and remand the case for resentencing, unless it finds that the error was harmless.
Grandville, MI attorney Pete Garthe faced this problem in a recent case, and objected to the Court's use of evidence from several co-defendants' guilty pleas. The district court responded that it would not consider the evidence, and the issue of its drug quantity determination is now pending on appeal. Mr. Garthe's objection is an example of good practice worth looking at. See United States v. Sengmany, United States District Court W.D. Michigan No. 1:12-cr-273, Docket No. 176, Sentencing Transcript, pp.98-99 available at www.miwd.uscourts.gov.
This all assumes that you have disputed the drug quantity. And, how to dispute facts at sentencing is a topic for another entry.