Monday, March 10, 2014

New Sentencing Ordered for Defendant Who Objected to Drug Quantity Calculation

U.S. v. Harrison, 2014 WL 702119 (2/28/14) (Okl.) (Published) - The 10th Circuit reverses a drug quantity calculation. Trial counsel failed to object at sentencing, but Ms. Harrison herself objected to the PSR's quantity determination. Ordinarily this would not preserve the issue when a defendant is nominally represented by counsel, but here the district court addressed the objection raised pro se. It was enough that Ms. Harrison said she disagreed with the calculation. The issue was preserved. The district court's response was that the PSR's calculation was based on trial testimony. But, actually, it was not. Nothing at trial supported the PSR's rationale for its calculation. So the district court clearly erred by finding to the contrary, even if the trial testimony did actually support the calculation. And the error was not harmless because some of the trial evidence, even if believed, proved little regarding amounts and other evidence establishing amounts may not have been credited by the district court or the district court may not have extrapolated the way the government suggested the extrapolation should be done. It would take too much speculation to conclude the district court would have come to the same quantity determination if it had actually examined the trial testimony. Sentence vacated.