Sunday, October 30, 2016

We meant what we said and we said what we meant

The Tenth Circuit reasserted two important rules last week in opinions granting sentencing relief to the defendants.

First, in United States v. Godinez-Perez, the Court reversed Mr. Godinez-Perez's drug-conspiracy sentence on grounds that the district court failed to make particularized drug-quantity findings. This was plain error, even absent an objection by Mr. Godinez-Perez:
we have held that "[a] sentencing court must make particularized findings to support the attribution of a coconspirator’s actions to the defendant as relevant conduct, whether or not the defendant asks it to do so or disputes the attribution." Figueroa-Labrada, 720 F.3d at 1264. In other words, even if the defendant does not lodge any objections to the PSR,* the district court must still make these particularized findings. Id.
*Please object anyway.

Second, in United States v. Henry, the Court applied the rule it adopted in United States v. Jones to reverse a supervised-release revocation sentence on grounds that the district court improperly admitted triple hearsay. As Jones explained, Rule 32.1(b)(2)(C) obligates district courts to apply the balancing test in the Rule's advisory committee notes to determine whether hearsay evidence may be considered in revocation cases.

Image result for "balancing test"That balancing test was not conducted in Henry:
the district court expressly relied on out-of-court statements the victim and his girlfriend made to a police detective, who in turn relayed them to Mr. Henry’s probation officer, who in turn presented them at the revocation hearing. Neither the victim, nor his girlfriend, nor even the detective was subject to cross-examination. Here, then, Rule 32.1(b)(2)(C) and Jones do apply, and here we must find error for the district court failed to conduct the balancing test Jones prescribes.
Henry also clarified that this balancing test need only be conducted with respect to the statements of non-testifying witnesses. Neither Rule 32.1(b)(2)(C) nor Jones applies to the statements of a witness who testifies and is subject to cross-examination.

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