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Seventh Circuit Vacates Sentence Because Government Failed to Meet Its Burden to Support Uncharged Drug Quantity Under Rule 32

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit admonished that “sentencing proceedings are not a free-for-all” and vacated Edward Gibbs’ sentence where the requirements of Federal Rule of Criminal Procedure 32 (“Rule 32”) were not followed when determining the amount of methamphetamine (“meth”) attributable to Gibbs for sentencing purposes.

Gibbs pleaded guilty to conspiring with intent to distribute “500 grams or more of a substance” containing meth in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The charges stemmed from 0.839 kg of meth found in Gibbs’ vehicle and from conspiracies with Hernany Quintana to purchase 0.907 kg of meth on two separate occasions for a total of a little more than 2.6 kg of meth (0.839 + 0.907 + 0.907 = 2.653 kg).

At the guilty plea hearing, the Assistant U.S. Attorney (“AUSA”) asserted for the first time that the conspirators had distributed more than 4.5 kg of meth during the charged period. Gibbs refused to agree to that portion of AUSA’s account and admitted only to his role with respect to the 500-gram quantity alleged in the indictment. Following the U.S. District Court for the Southern District of Indiana’s acceptance of the guilty plea, the U.S. Probation Office prepared a Presentence Investigation Report (“PSIR”) pursuant to Rule 32(c)(1)(A). The PSR described Gibbs’ offense conduct to include the 0.839 kg of meth retrieved from his vehicle and the two unsuccessful conspiracies with Quintana to purchase 0.907 kg on two separate occasions. But the PSIR also stated, without any explanation, that “at least between October 1, 2017, and August 28, 2018, Quintana distributed over 4.5 kilograms of methamphetamine ice to members of the charged conspiracy.”

Based on the assumption that the conspiracy involved 4.5 kg or more of meth, the PSR calculated an advisory Guidelines sentencing range of 235–239 months in prison. However, if Gibbs had been sentenced for a conspiracy involving 2.5 kg of meth, his Guidelines range would’ve been 188–235 months’ imprisonment. Gibbs objected to the PSR’s use of 4.5 kg, but the AUSA failed to respond with any evidence.

It wasn’t until Gibbs’ subsequent sentencing hearing that, for the first time, the AUSA attempted to provide a basis for the alleged conspiracy to distribute 4.5 kg of meth. The AUSA told the district court that Gibbs had admitted to receiving more than 36 pounds (roughly 16 kg) of meth from Quintana during an unrecorded proffer session in July 2019. This was the first time in the two-and-a-half-year history of the case that the Government asserted that Gibbs had confessed.

The AUSA had not personally attended that proffer session but claimed he had received this information from the prosecutor who had initially prosecuted the case and from the notes of a law enforcement officer who had allegedly attended the proffer session. But neither the prosecutor nor the officer was called to testify at the sentencing hearing, and the purported notes of the officer were never provided to the defense.

The AUSA then added that Quintana had also provided a proffer statement in which “he made at least 15 trips, receiving approximately 3 pounds of crystal methamphetamine for each trip.” It was unclear from the transcript whether the “he” to which the AUSA referred was Quintana or Gibbs.

However, defense counsel objected, stating that he had personally attended the proffer session; that he had no recollection of Gibbs ever making any such confession; and that had Gibbs confessed to such a substantial amount of meth then it would have certainly been included in the sentencing memoranda from the defense and the Government.

The district court overruled Gibbs’ objections to the drug quantity based on three reasons: (1) it accepted the AUSA’s representations as evidence that Gibbs received 36 pounds of meth for distribution, (2) it noted that Gibbs’ co-defendants had pleaded guilty to a conspiracy involving 4.5 kg or more of meth, and (3) the court attributed to Gibbs a statement to the effect that he had made 15 trips to Kansas and picked up 3 pounds of meth each time (even though that statement may, in fact, have been made by Quintana). Relying on its finding that Gibbs was involved in a conspiracy to distribute more than 4.5 kg of meth, the district court sentenced Gibbs to 200 months’ imprisonment based upon the higher sentencing Guidelines range. Gibbs appealed.

The Seventh Circuit observed that “[u]ncharged drug quantities that ‘foreseeably fall [ ] within the scope of jointly undertaken criminal activity’ may be considered in assessing a defendant’s relevant conduct and sentence.” United States v. Bautista, 532 F.3d 667 (7th Cir. 2008). However, criminal defendants have a right to be sentenced on the basis of accurate information and the Government bears the burden of proving by a preponderance of the evidence that uncharged drug quantities are attributable to the defendant. See United States v. Helding, 948 F.3d 864 (7th Cir. 2020). While district courts are permitted to consider evidence that would not be admissible at trial, United States v. Clark, 538 F.3d 803 (7th Cir. 2007), such evidence is required to be well-supported and reliable. United States v. Johnson, 489 F.3d 794 (7th Cir. 2007). These principles are enshrined in Rule 32, the Court stated.

Under Rule 32, the burden shifts to the government to prove any drug quantity associated with uncharged conduct. United States v. Noble, 367 F.3d 681 (7th Cir. 2004). The U.S. Probation Office is charged with preparing a PSIR that calculates the defendant’s offense level and Guidelines range. Rule 32(c). The sentencing judge may rely on the PSIR if it is “well-supported and appears reliable.” United States v. Marks, 864 F.3d 575 (7th Cir. 2017). If the PSIR meets the foregoing criteria, the burden shifts to the defendant to come “forward with facts demonstrating that the information in the PSIR is inaccurate or unreliable.” Helding.

But if a PSIR “asserts nothing but a naked or unsupported charge,” the Court stated that a defendant’s denial is sufficient to “cast doubts on its accuracy.” Helding. Likewise, if the PSIR “omits crucial information,” then the defendant’s denial alone can shift the burden of proof back to the government. United States v. Moreno-Padilla, 603 F.3d 802 (7th Cir. 2010). While a district court may accept an undisputed portion of the PSIR as fact under Rule 32(i)(3)(A), any portion of the PSR that is disputed and relevant to sentencing must be ruled upon by the court. Rule 32(i)(3)(B); see also Helding. “[W]here a district court relies on evidence that substantially increases drug quantity, it must take care in determining the accuracy of that evidence.” Helding.

Turning to the present case, the Court stated that the PSIR and the district court’s reliance on it did not satisfy the requirements of Rule 32 because “when contested facts are material to the judge’s sentencing decision,” Rule 32 requires the court to make factual findings based on evidence. United States v. Dean, 414 F.3d 725 (7th Cir. 2005). To do so, the court is required to determine whether the underlying facts used to by the government are true, the Court explained. Id. But the Court pointed out that the district court wasn’t presented with any evidence backing up the AUSA’s representations about what the evidence would show, so there was no evidence to resolve the dispute regarding the drug quantity.

At sentencing, the AUSA represented that he could call as a witness a law enforcement officer who was present when Gibbs allegedly confessed to the drug quantity and who had kept notes. But neither that officer nor the notes was ever produced. Ultimately, the only thing in the record was the AUSA’s statement, which the Court declared is not “proof.” Thus, without any evidence to substantiate the AUSA’s statement regarding drug quantity, the Government failed to satisfy “its burden to prove the uncharged conduct by a preponderance of the evidence,” the Court ruled.

The Court stated that since the PSIR attributed an unsupported drug quantity to Gibbs, his denial was sufficient to shift the burden back to the Government. See Helding. And the Court concluded that the Government failed to carry its burden to prove that the Guidelines error “did not affect the district court’s selection of the sentence imposed.” See United States v. Abbas, 560 F.3d 660 (7th Cir. 2009).  

Finally, the Court instructed: “Although sentencing proceedings are more informal than trials, that does not mean they are a free-for-all.” And when “the government fails to meet its burden to support uncharged drug quantities,  ‘the government is not permitted on remand to try again and submit new evidence in a belated effort to carry its burden.’” Noble. The government gets only one chance to present this evidence.

Thus, the Court ruled that Gibbs is entitled to be resentenced using the 188–235 months Guidelines range.

Accordingly, the Court vacated the judgment and remanded the case for resentencing consistent with the Court’s opinion. See: United States v. Gibbs, 26 F.4th 760 (7th Cir. 2022). 

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Related legal cases

United States v. Gibbs

United States v. Helding

United States v. Abbas



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