Different Evidence Standards Apply At Sentencing

Court Because the FRE did not apply at sentencing, in a drug conspiracy prosecution, the sentencing court could consider reliable hearsay testimony, in United States v. Rodriguez-Ramos, 663 F.3d 356 (8th Cir. Dec. 9, 2011) (Nos. 10-3769, 11-1019)

The Federal Rules of Evidence generally do not apply at sentencing. See, e.g., FRE 1101(d)(3) (noting the FRE do not apply to sentencing proceedings). The Sentencing Guidelines also provide that the Federal Rules of Evidence are inapplicable at sentencing. See U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information … which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). While the FRE do not apply at sentencing, most courts apply a due process standard that ensures that the evidence offered at sentencing is reliable. The Eighth Circuit recently noted these issues.

In the case, defendants Robles-Garcia and Rodriguez-Ramos were convicted on conspiracy to distribute methamphetamine and related charges. After their jury trial convictions, the district court sentenced defendant Robles to two concurrent terms of 600 months in prison and defendant Rodriguez to 260 months in prison. Part of the sentence for defendant Robles was based on “testimony that he had worked as a Mexican police officer and that indicated the existence of outstanding warrants for his arrest in Mexico,” which he claimed was unreliable. The testimony was offered by a task force member who had “spoken with a DEA agent in Mexico who informed him that Robles had worked as a Mexican police officer” and that “warrants had been issued for Robles’s arrest in Mexico, though he was unaware of whether any action had been taken on the warrants or if they were still outstanding.” Rodriguez-Ramos, 663 F.3d at 364. On appeal, the defendant challenged the consideration of this testimony for his sentence.

The Eighth Circuit affirmed the sentence finding that the testimony could be considered. As the circuit noted:

A court may consider all relevant evidence at sentencing, regardless of its admissibility under the rules of evidence, provided that the evidence has “sufficient indicia of reliability.” United States v. Ortiz, 636 F.3d 389, 393 (8th Cir. 2011). The evidence need not be limited to evidence relating to the scope of the crimes charged and may include “uncorroborated hearsay, provided the defendant is given a chance to rebut or explain it.” United States v. Pratt, 553 F.3d [1165,] 1170 [(8th Cir. 2009)](quoting United States v. Atkins, 250 F.3d 1203, 1213 (8th Cir. 2001)). “[T]he sentencing process does not carry the same evidentiary protections guaranteed during a criminal trial.” Id. (quoting United States v. Agboola, 417 F.3d 860, 865 (8th Cir. 2005)).
Rodriguez-Ramos, 663 F.3d at 364.

The Eighth Circuit found that this testimony “had sufficient indicia of reliability, and Robles had the opportunity to rebut the same.” Rodriguez-Ramos, 663 F.3d at 364.

Other Circuit Case Examples

Other circuits have noted the inapplicability of the FRE at sentencing. Most require some basis that the evidence is reliable. For some examples, consider:

  • First Circuit: United States v. Florentino, 385 F.3d 60, 65 n.5 (1st Cir. 2004) (noting “a court in sentencing matters is not strictly bound by hearsay rules”)
  • Third Circuit: United States v. Paulino, 996 F.2d 1541, 1547 (3d Cir. 1993) (“Prior to the Sentencing Guidelines, the principle that sentencing judges could consider evidence at sentencing that would not be admissible at trial was firmly established [,] … subject to a due process standard of reliability.”)
  • Fourth Circuit: United States v. Hernandez-Villaneuva, 473 F.3d 118, 120, 122 (4th Cir. 2007) (noting that “the Federal Rules of Evidence do not apply at sentencing”; sentenced increased based in part on expert police officer gang testimony that the defendant was still an active gang member, which was based in part on the defendant’s post-arrest interview providing “detailed, current information concerning MS-13 gang activity in the Washington D.C. metropolitan area”)
  • Fifth Circuit: United States v. Galvan, 949 F.2d 777, 784 (5th Cir. 1991) (“In sentencing defendants under the guidelines, ‘the [district] court is not bound by the rules of evidence and may consider any relevant information without regard to its admissibility provided the information considered has sufficient indicia of reliability.’”) (citations omitted)
  • Sixth Circuit: United States v. Silverman, 976 F.2d 1502, 1512 (6th Cir. 1992) (en banc) (a “district court may consider hearsay evidence in determining sentence, but the accused must be given an opportunity to refute it, and the evidence must bear some minimal indicia of reliability in respect of defendant’s right to due process”) (emphasis removed)
  • Seventh Circuit: United States v. Johnson, 489 F.3d 794, 796 (7th Cir. 2007) (noting “a district court in determining a sentence is not bound by the same stringent evidentiary standards as are applicable in a criminal trial”; concluding “status as self-interested co-conspirators does not thereby render the information inherently unreliable”)
  • Tenth Circuit: United States v. Scott, 529 F.3d 1290, 1298 (10th Cir. 2008) (in considering sentencing enhancements, sentencing court did not violation Due Process or abuse its discretion by calling and questioning an agent where there was no showing of actual bias and the court took precautions to avoid the appearance of bias; noting FRE 614 did not apply at sentencing but could be considered as a guide)

For other posts discussing the consideration of evidence at sentencing, see:

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