Reasonable Doubt Not Required for Sentencing

U.S. v. Magallanez, 2005 WL 1155913 (5/17/05) - The 10th rejects the argument that the d.ct. must apply a beyond a reasonable doubt standard when it makes its guideline calculations. [So, we can only make this argument to preserve it for en banc or S.Ct. review]. It was okay for the d.ct. not to accept the jury's verdict as to what quantity of meth was involved and to enhance based on its own findings. U.S. v. Watts, 519 U.S. 148 (1997), where the S.Ct. decided it was okay to consider in sentencing conduct of which the defendant was acquitted, was still good law in an advisory system. On the positive side, the 10th made it clear the d.ct. could consider the level of proof of the enhancement in deciding what sentence to impose, i.e., if the enhancement was only proven by a preponderance, the d.ct. could reduce the sentence below the enhanced range because of the lesser proof.

The 10th also held that it was not plain error for an agent to testify documents corroborated the defendant's guilt where the defendant had opened the door by saying in opening statement that the documents did not mention the defendant. The agent's testimony also provided background about the nature of the investigation. The prosecutor's questioning the snitch witnesses about their plea agreement promises to tell the truth did not improperly vouch for their credibility. Rebuttal testimony that the defendant bought meth in a particular town did not violate 608(b) or 404 because it was not presented as character evidence but as a direct contradiction of the defendant's claim he had no drug connection in that town. The evidence was sufficient to prove the defendant possessed meth with intent to distribute, despite the absence of physical evidence. The conspirators' testimony was enough.