Wednesday, February 26, 2014

PSR ≠ Evidence

Yesterday's decision in US v. Harrison serves as a reminder about the weight and worth of PSR allegations in the Tenth Circuit. When the PSR asserts some reason for a higher sentence -- like drug weight or stolen weapon -- the defense must object as a matter of fact as well as a matter of law. US v. Shinault, 147 F3d 1266 (10th Cir 1998). This triggers the government 's burden of proving the sentence increase. In the face of an objection, the court cannot (usually) just rely on the claims in the PSR. From yesterday's Tenth Circuit decision in US v. Harrison,
  We agree with Defendant’s first argument. When she challenged the drug-quantity calculation in the PSR, the district court did not require the government to put on evidence supporting the calculation, stating that the PSR was based on trial testimony. This statement was inaccurate, and the error was not harmless because the trial evidence would not compel a finding of at least 1.5 kilograms of methamphetamine.
In this case, it was the defendant speaking up at sentencing, over her lawyer's apparent onset of selective mutism, that preserved the issue. The Government, of course, could have referred to trial testimony as evidence of weight, except here, the trial evidence did not support the PSR conclusions.  "We are particularly hesitant because the PSR did not see fit to refer to the testimony of the witnesses."

Harrison's 360-month sentence was vacated and remanded.

-- Melody

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