Thursday, July 28, 2005

Sixth Circuit has sent mixed messages about whether a defendant "admits" to PSR facts by not objecting to them.

As a previous post mentioned, a Sixth Circuit panel recently issued an unpublished decision holding that a defendat "admits" to PSR facts by not objecting to them. United States v. Bondurant, No. 04-5935, (6th Cir. 7/13/2005). But that holding is questionable in light of prior Sixth Circuit decisions.

United States v. Oliver, 397 F.3d 369 (6th Cir.), r’hrg en banc denied, 2005 U.S. App. LEXIS 8415 (6th Cir. May 6, 2005). In Oliver, the defendant was convicted on drug trafficking charges. Id. at 374. During his trial, the jury was presented with evidence that, after Oliver’s arrest, he left a Community Alternatives Program (CAP). Id. The jury did not explicitly find that Oliver had left the CAP. Id. Oliver’s PSR proposed a two-level enhancement under § 3C1.1 for obstructing justice by leaving the CAP. Id. Oliver did not object to the PSR’s factual allegation that he left the CAP. See id. at 374, 381 n.4. Rather, he objected that leaving the CAP legally did not constitute an obstruction of justice. Id. at 374. The District Court imposed the enhancement. Id. On appeal, Oliver raised for the first time a Blakely objection to the enhancement, arguing that it was improperly based on a finding of fact. Id. at 377. The Court held that the District Court plainly erred by enhancing Oliver’s sentence under a mandatory Guidelines regime based on a judge-found fact. Id. at 378.

United States v. Bucheit, 2005 U.S. App. LEXIS 9805 (6th Cir. May 23, 2005) (taking the same approach as Oliver while specifically noting that the defendant failed to object to the PSR’s factual allegations)

Bondurant's approach contradicts the plain language of Rule 32, which states that the district court is making “findings of fact” when it adopts undisputed PSR allegations, not that it is merely acknowledging admissions. Fed. R. Crim. P. (32)(i)(3)(A). Rule 32 is not the equivalent of Federal Rule of Civil Procedure 36, which creates a procedure for procuring admissions through a litigant’s silence. Rather, it merely creates a procedure for permitting the sentencing court to make factual findings based on the hearsay evidence in a PSR when the criminal defendant does not object.

Bondurant's approach may violate a defendant's Fifth Amendment right against self-incrimination, which prevents the sentencing judge from drawing adverse inferences from the defendant's silence at sentencing. See Mitchell v. United States, 526 U.S. 314 (1999)

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