US v. Robinson: Robinson pleaded guilty to conspiring to distribute 50 grams or more of crack cocaine, along with several substantive counts of distribution. In the PSR, the probation officer attributed 1.43 kilograms of crack as relevant conduct to Robinson, based on the testimony of a source named Battle. Robinson objected to that calculation, arguing that Battle was unreliable based on inconsistencies in prior statements and that he lied about buying PCP cigarettes from Robinson during a period where Robinson was living in another state. Robinson also objected to the calculation of his criminal history.
At sentencing, the Government did not produce Battle to testify, but argued that it was not unusual for sources to give multiple statements that differed from one another and that the PCP issue was irrelevant because it was not part of the relevant conduct calculation. The Government also argued that there were three other witnesses, whose statements "did not 'make their way' to the probation office," who could provide testimony that would result in a higher relevant conduct determination than the 1.43 kg amount. The district court presented Robinson with two alternatives. First, it would conclude the sentencing that day "with what's here and now, and I'll make the decisions that I need to make by a preponderance of the evidence." Second, it would continue the hearing, "unwind the whole thing," and get a revised PSR that would include the Government's new witnesses. Robinson chose to go ahead, after again asserting that Battle was not credible. The district court overruled Robinson's objection as to relevant conduct (criminal history, too) and imposed a sentence of 140 months in prison.
Robinson appealed, challenging both the relevant conduct and criminal history calculations. The Fourth Circuit affirmed his sentence, 2-1. On the relevant conduct issue, the court concluded that Robinson had waived his right to challenge the calculation by electing to go forward with sentencing, stating that he "Was agreeing that his drug quantity would be calculated on the basis of the PSR, which relied on Battle's statement." As to criminal history, the court concluded that a possession of marijuana charge that occurred during the time of the conspiracy charged in the indictment was not relevant conduct and, therefore, counted as both a prior sentence and triggered the two-point enhancement for committing the offense while under a sentence of probation.
Judge Diaz dissented. He argued that Robinson's choice to proceed with sentencing was done after the district court said it would make findings "by a preponderance of the evidence" and therefore he did not waive his challenge to the relevant conduct calculation. In conclusion, wrote:
The majority declares that Robinson made a considered decision and should have to live with the consequences. But that rationale upends the equities--and, indeed, facts--of the case before us. It is not Robinson who seeks a mulligan, but the government.
When Robinson objected to the PSR--before the hearing--the government was put on notice that its “evidence” was suspect. Yet it did not produce Battle. Nor did it produce the probation officer who interviewed Battle. And it had never even submitted the other witnesses’ statements to the probation officer in the first place. Despite its lack of preparation, the government was presented--as the majority sees it--with a win-win scenario: either it would have a second chance to do the job right (securing an even longer sentence), or it would get a pass on the evidentiary standard. “In this case, the district court did not ensure--as it was obligated to--that the Government carried its burden of proof.” [US v.] Lawrence, 47 F.3d  at 1568 [(11th Cir. 1995)].
Thus, I would vacate and remand with instructions that the district court resentence Robinson on the record--but without crediting Battle’s statements as to drug weight. Any other result would grant the government the very benefit--a second chance to present evidence--that it does not merit.