Fourth Circuit Joins All Other Circuits Holding Confrontation Clause Is Inapplicable At Sentencing

In Internet fraud scheme, the Fourth Circuit considers and rejects claim that the Confrontation Clause applies at sentencing; reliable hearsay concerning the sentencing loss and number of victims satisfied Due Process standards requiring a minimal level of reliability, in United States v. Powell, 650 F.3d 388 (4th Cir. May 12, 2011) (No. 09-4012)

While other circuits have decided that the Confrontation Clause does not apply at sentencing, the Fourth Circuit only recently addressed this issue.

In the case, a jury convicted defendant Powell of mail fraud, wire fraud, and attempted destruction of evidence, based on a fraudulent Internet business in which the defendant took money without delivering the promised goods. At his sentencing hearing, the court considered hearsay concerning the amount of damage from the scheme and number of victims, enhancements which increased the Sentencing Guidelines calculation. The information was obtained by a Postal Inspector who testified about his review of complaints, loss reports and the defendant’s records. The defendant contended that this information was barred at sentencing under the Confrontation Clause and only the information from eight trial witnesses could be considered, resulting in a loss of less than $20,000. After his sentencing the defendant appealed.

The Fourth Circuit held that the Confrontation Clause did not apply at sentencing. As the circuit explained, “[t]his holding respects the traditional distinction between trial and sentencing, the sentencing court’s need to consider a wide variety of evidence in choosing an appropriate sentence, and the sentencing judge’s ability to properly evaluate that evidence.” Powell, 650 F.3d at 390. The circuit noted the wide latitude given to information at sentencing:

Courts have accordingly "long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence . . . ." Pepper v. United States, 131 S. Ct. 1229, 1235 (2011) (quoting Williams [v. New York], 337 U.S.[ 241,] 246 [(1949]; ); see, e.g., Payne v. Tennessee, 501 U.S. 808, 820–21 (1991) ("Whatever the prevailing sentencing philosophy, the sentencing authority has always been free to consider a wide range of relevant material."). This recognition is further grounded in the applicable criminal, evidentiary, and sentencing codes. See 18 U.S.C. § 3661 (stating that "[n]o limitation shall be placed on the information concerning the background, character, and conduct" to be considered at sentencing); FRE 1101(d)(3) (exempting sentencing proceedings from the Fed eral Rules of Evidence); U.S.S.G. § 6A1.3(a) (allowing sentencing courts to consider all relevant information regardless of admissibility at trial provided it has "sufficient indicia of reliability"). [¶] This widened evidentiary universe at sentencing has always included reliable hearsay of many varieties, the Confrontation Clause notwithstanding.
Powell, 650 F.3d at 392.

The Fourth Circuit “join[ed] every other federal circuit court that hears criminal appeals” on this issue:

  • First Circuit: United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005) (“nothing in Blakely or Booker necessitates a change in the majority view that there is no Sixth Amendment right to confront witnesses during the sentencing phase”)
  • Second Circuit: United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005) (“Both the Supreme Court and this Court, however, have consistently held that the right of confrontation does not apply to the sentencing context and does not prohibit the consideration of hearsay testimony in sentencing proceedings.”)
  • Third Circuit: United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007) (“Both the Supreme Court and this Court of Appeals have determined that the Confrontation Clause does not apply in the sentencing context and does not prevent the introduction of hearsay testimony at a sentencing hearing.”)
  • Fifth Circuit: United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006) (“we conclude that there is no Crawford violation when hearsay testimony is used at sentencing, rather than at trial”)
  • Sixth Circuit: United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005) (“Because Crawford was concerned only with testimonial evidence introduced at trial, Crawford does not change our long-settled rule that the confrontation clause does not apply in sentencing proceedings.”)
  • Seventh Circuit: United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005) (“the relevant provision at sentencing is the due process clause, not the confrontation clause”)
  • Eighth Circuit: United States v. Brown, 430 F.3d 942, 943-44 (8th Cir. 2005) (agreeing with other courts that Crawford v. Washington, 541 U.S. 36 (2004) "does not alter the pre-Crawford law that the admission of hearsay testimony at sentencing does not violate confrontation rights") (citation and quotation mark omitted)
  • Ninth Circuit: United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006) (“the law on hearsay at sentencing is still what it was before Crawford: hearsay is admissible at sentencing, so long as it is ‘accompanied by some minimal indicia of reliability.’”) (citation omitted)
  • Tenth Circuit: United States v. Bustamante, 454 F.3d 1200, 1202-03 (10th Cir. 2006) (“We see nothing in Crawford that requires us to depart from our precedent "that constitutional provisions regarding the Confrontation Clause are not required to be applied during sentencing proceedings.") (quoting United States v. Hershberger, 962 F.2d 1548, 1554 (10th Cir.1992))
  • Eleventh Circuit: United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005) (“Crawford dealt with trial rights and we see no reason to extend Crawford to sentencing proceedings. The right to confrontation is not a sentencing right.”)
  • D.C. Circuit: United States v. Bras, 483 F.3d 103, 109 (D.C. Cir. 2007) (“we join our sister circuits in holding that nothing in Crawford or Booker ‘alter[s] the pre-Crawford law that the admission of hearsay testimony at sentencing does not violate confrontation rights'") (quoting United States v. Brown, 430 F.3d 942, 944 (8th Cir. 2005) (quoting : United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005))))

While the Confrontation Clause did not apply, due process required “some minimal level of reliability,” which was satisfied as the sentencing court:

gave [defendant] Powell the benefit of every residual doubt by reducing the loss caused to $199,000 and the number of victims to more than ten. Both of these figures were more than supported by the evidence, much of which came from Powell’s own records, and Powell has never given any reason to believe these figures were materially inaccurate or unreliable. Due process is fully satisfied by reliance on evidence so methodically gathered and so carefully evaluated as that here.”
Powell, 650 F.3d at 394.

For other cases considering the admissibility of evidence under more relaxed standards at sentencing, see: "Sufficiently Reliable” Hearsay At Sentencing

Federal Rules of Evidence