The word "acquittal" generally carries with it some finality...except in federal sentencing. The use of acquitted conduct under the lesser preponderance of the evidence standard poses a particular thorny problem for federal courts, so much so that the United States Sentencing Commission recently promulgated amendments to exclude federally acquitted conduct from the definition of "relevant conduct" in USSG § 1B.3. As the Sixth Circuit demonstrated in United States v. Ralston, however, courts may still consider acquitted conduct in fashioning a sentence, even one significantly above the recommended Guidelines range.
Ramon Villegas nearly died after overdosing on heroin laced with fentanyl. After his girlfriend gave law enforcement access to his cell phone, they discovered text messages indicating "Roy" Ralston likely sold him the heroin. Further investigation revealed that "Roy" was actually the defendant, Gregory Ralston. After setting up a fake drug buy, law enforcement subsequently arrested Ralston at a local restaurant.
After arresting Ralston, officers searched him and his vehicle, discovering the cell phone the police had texted using Villegas's phone. In addition, they recovered a plastic bag containing 4.7 grams of fentanyl. Officers later obtained a search warrant to search Ralston's cell phone. That search revealed text messages between Ralston's phone and Villegas's regarding other drug transactions. After waiving his Miranda rights, Ralston admitted he had traveled to the restaurant's parking lot to sell drugs to Villegas.
A federal grand jury subsequently indicted Ralston for possessing fentanyl intending to distribute it in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). A second superseding indictment charged him with distributing a controlled substance, and it included an enhanced statutory penalty for causing serious bodily injury to another pursuant to 21 U.S.C. § 841(b)(1)(C). A jury subsequently convicted Ralston of both the possession and distribution charges, but it acquitted him of the enhancement for serious bodily injury.
Neither party objected to Ralston's presentence investigation report, which recommended a sentencing range of 27 to 33 months' imprisonment. Prior to his sentencing, however, the district court entered an order indicating it was considering varying upward based on the sentencing factors set forth in 18 U.S.C. § 3553(a). The Government also argued for an above-Guidelines sentence, pointing to Ralston's 2018 state court conviction for drug trafficking, tampering with physical evidence, and reckless homicide. This conviction stemmed from a gruesome incident in which Ralston sold drugs that caused an overdose death.
Noting that Ralston's case was atypical, the district court sentenced him to 180 months' imprisonment -- varying upward by almost 450% from the top of the recommended Guidelines range. Neither party raised any objections to the sentence pursuant to United States v. Bostic.
Ralston appealed both his conviction and sentence. Specifically, he argued the district court erred in denying his motion to suppress, asserting it should have held an evidentiary hearing to clear up certain contested issues of fact surrounding his claim that the police lacked probable cause to stop and arrest him. The Court disagreed, however, holding that since the determination of whether probable cause existed was "entirely legal in nature," the district court did not abuse its discretion in denying his motion without an evidentiary hearing.
Ralston next challenged the district court's decision to limit the scope of his cross-examination of both Villegas and Detective Craig Payne -- one of the arresting officers. During his trial, the district court ruled Ralston could not ask Payne whether he thought Villegas was a "threat to the community," finding that such testimony suggested the police showed favoritism toward Villegas. Although it noted that "read in isolation," the district court's ruling seemed to exclude "core impeachment evidence," it concluded the district court did not err because Ralston was not questioning whether the Government made any promises to Villegas, but whether he was a "threat to the community."
The Court also rejected Ralston's challenge to his sentence. First, it rejected his argument that it should apply the typical abuse-of-discretion standard because the district court did not conduct an appropriate Bostic inquiry because it asked his trial attorney if he had any "Bostic objections" instead of the traditional query as to whether counsel had any "objections, corrections, [or] any arguments not previously raised...." Noting that Bostic "does not require a shibboleth," the Court held it would review the reasonableness of his sentence for plain error.
Although the district court varied upward by almost 450% from the high-end of the Ralston's recommended Guidelines range, the Court found it did not plainly err because it adequately explained its reasons for doing so under 18 U.S.C. § 3553(a). Likewise, the Court held the district court did not err in finding Ralston caused Villegas's overdose and serious bodily injury in imposing his sentence. While it noted an upcoming amendment will soon prohibit the use of acquitted conduct in calculating a Guidelines range, it held the district court could still consider such conduct varying upward pursuant to § 3553(a). It also held the record supported the district court's finding.
Noting that he had offered to plead guilty to both counts without the penalty enhancement, Ralston also challenged the district court's decision not to grant a two-level reduction for acceptance of responsibility pursuant to USSG § 3E1.1. Citing Ralston's refusal to admit he knowingly distributed fentanyl as charged in the indictments, the Court held that the district court did not plainly err in refusing to give him credit for acceptance of responsibility.
Finally, the Court also held Ralston's sentence was substantively reasonable. Although the district court varied upward substantially from his recommended Guidelines range, the Court found it had sufficient reason to do so based on the record.
The Court's opinion offered a sliver lining for Ralston, however. It remanded the case to the district court to determine whether Amendment 821, which changed how "status points" are allotted in calculating a criminal defendant's Guidelines sentence, entitled him to a sentence reduction.
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