My managing editor, Marilou Auer, sent a link over to a 4th Circuit opinion that shocked and outraged her. She wondered whether I felt the same about it, and while I share her outrage, I cannot share her shock. It’s business as usual.
The opinion in United States v. Crawford affirms a sentence of 135 months following a plea to crack dealing. The indictment charged distributing 38.3 grams of crack, bad enough but hardly stratospheric. But as is the federal way, that was just the starting point.
The district court deviated from the PSR and found that Crawford’s relevant conduct period began in October 2005, not 2003. The court consequently attributed 321.9 grams of crack cocaine to Crawford, including 38.3 grams from the six offenses of conviction and 283.6 grams that Ready, Latta, and drug dealer Lionel Lewis described.
“Ready” and “Latta” refer to the names of women to whom the defendant, Crawford, was alleged to have sold eight-balls of crack monthly for years. While Crawford wasn’t charged with the sales, the government wanted him to pay for them nonetheless. This might strike people as outrageous in itself, and indeed, it is, unless you get a government paycheck.
This is called “relevant conduct,” and it’s a means of the government tossing in whatever bad acts they claim a defendant did for the purpose of increasing the guidelines sentence. It’s nothing new. It’s used all the time, and it is, according to the courts, absolutely fine. But it gets worse.
Pursuant to the Sentencing Guidelines, sentencing courts must consider relevant conduct in calculating a defendant’s advisory sentencing range, including “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). The Sentencing Guidelines make it clear that “[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.”
The evidence to prove “relevant conduct” doesn’t have to be proven beyond a reasonable doubt. Indeed, it can even include conduct for which a jury acquitted for this reason. This is always a hard issue for non-lawyers to wrap their head around. Lawyers try not to think too hard about the logic because it will make our head explode, and we would be held in contempt for getting goo all over the beautiful mahogany bench. But it gets worse.
We evaluate the district court’s sentence “under an abuse-of-discretion standard, which translates to review for ‘reasonableness.’” Sentences must be both procedurally and substantively reasonable. On appeal, Crawford contends that his sentence is procedurally unreasonable because the government did not present “sufficiently reliable evidence to support the quantity of drugs attributed to [him] by the court.” “We review the district court’s calculation of the quantity of drugs attributable to a defendant for sentencing purposes for clear error.” Under this clear error standard, we will reverse the district court’s finding only if we are “left with the definite and firm conviction that a mistake has been committed.” (Citations omitted.)
This is the boilerplate stuck into appeals to state the standard of review. While the defendant, before his plea in the district court, is supposed to be given the benefit of the doubt, the burden changes markedly on appeal to the Circuit. But it gets worse.
This Court has specified, however, that “when the approximation [of drug quantity] is based only upon ‘uncertain’ witness estimates, district courts should sentence at the low end of the range to which the witness testified,” United States v. Bell, 667 F.3d 431, 441 (4th Cir. 2011) (quoting United States v. Sampson, 140 F.3d 585, 592 (4th Cir. 1998)), as the district court did in this case.
In case this isn’t clear, the remedy for basing a sentence on “uncertain witness estimates” isn’t to reject the evidence upon which the sentence is based, but rather to sentence at the “low end of the range to which the witness testified.” In other words, bad evidence is still good evidence otherwise. But it gets worse.
Other than his meritless contention that multiple hearsay evidence is per se unreliable, Crawford makes three primary arguments that Beck’s recounting of Nesbitt’s interviews with Latta and Ready is not reliable evidence of drug quantity.
You see, the local deputy sheriff who provided the relevant conduct evidence for sentencing, Jeff Beck (who may or may not play guitar), informed the sentencing court of the allegations of Latta and Ready, the women who claim they purchased eight-balls from the defendant monthly for years, based on talking to another agent named “Nesbitt” who talked to them on the telephone.
Crawford argued that information that two paid informants—Veronica Ready and Melanie Latta—supplied via telephone interviews to Chad Nesbitt, an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives who did not testify at Crawford’s sentencing hearing, was not sufficiently reliable.
At Crawford’s sentencing hearing, Brunswick County Sheriff’s Office Deputy Jeffrey Beck testified regarding Latta and Ready.
This forms the basis of the defense’s “meritless contention” that the sentence was based on multiple hearsay used to prove by a preponderance of the evidence for the relevant conduct drug quantity that formed the basis for the guideline sentence imposed. Since it was within the maximum sentence possible for the crime, and Crawford was sentenced at the low end of the range of the high end of the guidelines, it failed to satisfy the 4th Circuit’s abuse of discretion standard, that the judges were left with the ”definite and firm conviction that a mistake has been committed.”
And this is how bad it gets.