United States v. Robertson, 2020 WL 54652 (10th Cir. January 6, 2020) (NM)
Robertson pleaded guilty to being a felon in possession of a firearm. The probation office asked the court to apply a ten level enhancement: four levels under USSG § 2K2.1(b)(6) for assaulting a police officer with the firearm; and another six levels using U.S.S.G. § 3A1.2(c)(1), the official victim enhancement, because it claimed Robertson assaulted the officer in a "manner creating a substantial risk of serious bodily injury." After an evidentiary hearing at which the officer who shot Robertson testified, the district court applied those enhancements. Robertson’s imprisonment range went from 46 to 57 months to 120 to 150 months.
Robertson’s appeal raised numerous issues, the most important of which were that, (1) because of the disproportionate impact the enhancements had on the recommended imprisonment range, the district court should have required they be proven by clear and convincing evidence; and (2) the district court used Robertson’s silence at the sentencing hearing to improperly justify its application of the sentencing enhancements.
The panel majority held that in this circuit, due process does not require a standard higher than a preponderance of the evidence, irrespective of the effect contested enhancements may have on the accused’s sentence. Here, those enhancements almost tripled the imprisonment range Robertson faced without them. The panel also was untroubled by the district court’s comments that it was "surprised it didn’t hear from the main player" who it believed should tell it that he did not point a gun at the officer. When counsel noted Robertson was challenging the officer’s version of events, the court again stressed that it had not heard Robertson say that under oath but it had heard the officer’s sworn testimony - which was not countered by Robertson’s. The panel said the court’s comments were "ambiguous" and could simply have been "an observation" after it discounted the testimony of an eyewitness.
Judge Briscoe, in her dissent, agreed with Robertson that the district court inappropriately commented on Robertson’s silence and considered it in its sentencing deliberation. Analyzing this issue using the plain error standard, she would have remanded the case for re-sentencing.
Robertson pleaded guilty to being a felon in possession of a firearm. The probation office asked the court to apply a ten level enhancement: four levels under USSG § 2K2.1(b)(6) for assaulting a police officer with the firearm; and another six levels using U.S.S.G. § 3A1.2(c)(1), the official victim enhancement, because it claimed Robertson assaulted the officer in a "manner creating a substantial risk of serious bodily injury." After an evidentiary hearing at which the officer who shot Robertson testified, the district court applied those enhancements. Robertson’s imprisonment range went from 46 to 57 months to 120 to 150 months.
Robertson’s appeal raised numerous issues, the most important of which were that, (1) because of the disproportionate impact the enhancements had on the recommended imprisonment range, the district court should have required they be proven by clear and convincing evidence; and (2) the district court used Robertson’s silence at the sentencing hearing to improperly justify its application of the sentencing enhancements.
The panel majority held that in this circuit, due process does not require a standard higher than a preponderance of the evidence, irrespective of the effect contested enhancements may have on the accused’s sentence. Here, those enhancements almost tripled the imprisonment range Robertson faced without them. The panel also was untroubled by the district court’s comments that it was "surprised it didn’t hear from the main player" who it believed should tell it that he did not point a gun at the officer. When counsel noted Robertson was challenging the officer’s version of events, the court again stressed that it had not heard Robertson say that under oath but it had heard the officer’s sworn testimony - which was not countered by Robertson’s. The panel said the court’s comments were "ambiguous" and could simply have been "an observation" after it discounted the testimony of an eyewitness.
Judge Briscoe, in her dissent, agreed with Robertson that the district court inappropriately commented on Robertson’s silence and considered it in its sentencing deliberation. Analyzing this issue using the plain error standard, she would have remanded the case for re-sentencing.
posted by Anonymous at 4:01 PM
<< Home