Wednesday, July 04, 2007

District Court's Reliance on Unsworn Police Report to Impose Sentence 82 Months Longer Than Government's Recommendation Upheld

In United States v. Leekins, No. 05-1658 (3d Cir. June 29, 2007), the Third Circuit affirmed a sentence at the bottom of the guideline range, rejecting the appellant’s arguments that he was improperly sentenced on the basis of judge-found facts and unsworn statements in a police report.

Leekins pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) pursuant to a plea agreement wherein he agreed that he was subject to the armed career criminal sentencing enhancement. The government agreed to recommend imposition of the 15-year mandatory minimum sentence. The district court did not follow the government’s recommendation. At sentencing, the district court adopted the presentence report’s finding that Leekins possessed or used a firearm in connection with a crime of violence—namely, attempted murder. This upward adjustment resulted in a guideline range of 262-327 months, and the district court sentenced Leekins to 262 months.

With little analysis, the Third Circuit cited United States v. Grier, 475 F.3d 556 (3d Cir. 2006)(en banc), and rejected Leekins’s argument that the district court violated his Sixth Amendment right to trial by jury and Fifth Amendment right to due process by sentencing him on the basis of facts that he did not admit and that were not found by a jury. The Court also found the defendant’s sentence to be reasonable. The Court acknowledged that Leekins pleaded guilty with the expectation that he would receive an 180-month sentence, but noted that the plea agreement explicitly advised him of the possible statutory maximum sentence of life imprisonment.

The Court also rejected Leekins’s argument that the district court erroneously considered an unsworn police report for sentencing enhancement purposes. The Court noted that police reports are neither inherently reliable nor inherently unreliable. The relevant inquiry is whether the facts upon which a judge bases a sentence have sufficient indicia of reliability to support their probable accuracy. The Court found that the other evidence presented at the sentencing hearing corroborated the findings in the police report and concluded that the district court’s reliance on the report was reasonable.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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