In an unpublished decision filed today in United States v. Wright, 08-6546 (11a0444n.06), the Court remanded a case for resentencing where the district court referred to uncharged, unsubstantiated "other offenses" in determining the sentence. The gist of the claim was that the court, in sentencing the defendant, made reference to "other crimes" that the defendant must have committed (the court found that the defendant could not have been caught every time he committed an offense), and used this information in determining the sentence within the Guidelines. The Court found that "While § 3553(a) requires a sentencing court to consider the nature of the offense before it and the defendant’s history, it does not permit the district court to speculate regarding potential crimes that the court has no factual basis for concluding were ever committed."
A more interesting aspect of the opinion, however, dealt with the United States' failure to file a brief on appeal. The defendant's counsel had filed an Anders brief. The Court entered an order giving the United States an opportunity to respond to the brief. The United States declined to respond, instead stating a letter that "In the event the Court, as a result of its independent review of the record, determines that counsel is mistaken and that a non-frivolous issue exists", then the United States wished to brief the matter.
In its remand order, the Court noted that the United States had failed to brief the issues, and found, in response to the United States' letter, that "this Court is not required to respond to a party’s request that the Court assist the party with its briefing by identifying 'meritorious' issues." The Court therefore held they would not review the claim for harmless error, and remanded for resentencing.