Standard of proof at sentencing
The Tenth Circuit generally requires district courts to find sentencing facts by only a preponderance of evidence. But it has also "reserved the question of whether, in some extraordinary or dramatic case, due process might require a higher standard of proof." United States v. Olsen, 519 F.3d 1096, 1104-06 (10th Cir. 2008); accord United States v. Ray, 704 F.3d 1307, 1314 (10th Cir. 2013) (same; citing Olsen).
Last week, in United States v. Robertson, the Tenth Circuit withdrew that reservation, at least until the Supreme Court says otherwise: "The Supreme Court has not adopted a heightened standard of proof at sentencing for contested facts, thus we hold that the correct standard of proof in this case was a preponderance of the evidence. This issue has been foreclosed in this Circuit." The Court expressly discredited any statements to the contrary in Ray.
Standing silent at sentencing
In Robertson, the district court added 10 levels* to Mr. Robertson's total offense level after finding, over Mr. Robertson's objection, that he had pointed a gun at a police officer. The officer testified, but had credibility problems. In discussing the "serious problems" it had with the officer, the district court noted that it was "surprised" that Mr. Robertson hadn't testified "under oath" to contradict the officer. On appeal, the Tenth Circuit held that (1) any error in the judge's alleged reliance on Mr. Robertson's silence was unpreserved, and therefore subject to plain-error review; and (2) the judge's statements were ambiguous, and therefore couldn't be plain error. Judge Briscoe dissented, concluding that the district court plainly erred, and stating that she would reverse and remand for resentencing.
* This was done by combining a firearm enhancement, USSG § 2K2.1, with an enhancement for assaulting a law-enforcement officer, USSG § 3A1.2.
Is the ultimate determination of relevant conduct an issue of law, reviewed de novo on appeal, or an issue of fact reviewed only for clear error? Alas, we cannot say. In United States v. Garcia, the Tenth Circuit noted this "perplex[ing]" question, but chose not to answer it, holding instead that Mr. Garcia's relevant-conduct challenge relied on a subsidiary factual question, which was unquestionably reviewable only for clear error.
In Garcia, a 922(g) case, the Tenth Circuit found no error in the district court's treatment of Mr. Garcia's prior firearms possession (one year before his current offense conduct) as course-of-conduct relevant conduct. Read Garcia if you want a detailed analysis of the factors relevant to this analysis: similarity, regularity or repetition, and temporal proximity (but keep in mind that the analysis here is under plain-error review).
Thinking about arguing on appeal that your client's above-guidelines sentence is substantively unreasonable? Just know that you have a long row to hoe. In Garcia, the Tenth Circuit rejected Mr. Garcia's substantive-reasonableness challenge to an upward variance of 39 months above the high end of his guidelines range. In affirming the variance, the Tenth Circuit held that it was supported by Mr. Garcia's personal history. The Tenth Circuit was unpersuaded by either Mr. Garcia's proffered statistics about median firearms sentences within the Tenth Circuit ("his argument plainly does not implicate the kind of disparities that § 3553(a)(6) seeks to avoid---that is, nationwide disparities"), or his national statistics ("Mr. Garcia does not place them in a meaningful 'context.'").