Saturday, May 3, 2014

No Second Bite at the Apple: Criminal History

Sometimes, maybe too often, we allow our jaded, tired assumptions to prevail -- it is not worth objecting to quotidian matters because the government will ultimately win. Sometimes we are wrong, and we should take a fresh look at the routine.

Lesson from a recent Tenth Circuit case, US v. Thomas. The PSR attributed a number of prior convictions to Mr Thomas, elevating his criminal history score to CHC V. But "Mr. Thomas demanded proof of the convictions", as is his right. Once this demand was made, the burden fell on the government to prove the convictions by a preponderance of the evidence. The government (concededly) failed to do so on five, yes, five, of these alleged prior convictions; reversed and remanded.

All well and good. Now remanded, the government proves up the convictions and we are back at the same place had we not bothered to object. Right?

Wrong. In Thomas, the Court scrutinized the government conduct at the original hearing. Although such resentencings are generally de novo, in certain circumstances -- such as this one -- different considerations apply that lead to a different result,

● The government bore the burden to prove the prior convictions;

● Mr. Thomas alerted the government to the deficiency in its proof;

● the government made no effort to cure the deficiency in its proof.

Thus, the Court "decline[d] to give the government a second opportunity to make the record that it failed to make the first time. Thus, on remand, the district court must recalculate the criminal-history score based on the existing record." No second bite for the government.

[The Court left open the issue of whether the additional two points for being on supervision when the new crime occured (USSG section 4A1.1(d)) applies when that underlying conviction was not proved up, and therefor not counted.]

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