2005 Federal Sentencing Guidelines
CHAPTER SIX - PART A - SENTENCING PROCEDURES
§6A1.3. Resolution of Disputed
Factors (Policy Statement)
(a) When any factor important to the sentencing determination is reasonably
in dispute, the parties shall be given an adequate opportunity to present information
to the court regarding that factor. 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.
(b) The court shall resolve disputed sentencing factors at a sentencing hearing
in accordance with Rule 32(i), Fed. R. Crim. P.
Commentary
Although lengthy sentencing hearings seldom should be necessary, disputes
about sentencing factors must be resolved with care. When a dispute exists
about any factor important to the sentencing determination, the court must
ensure that the parties have an adequate opportunity to present relevant information.
Written statements of counsel or affidavits of witnesses may be adequate under
many circumstances. See, e.g., United
States v. Ibanez, 924 F.2d 427 (2d Cir. 1991). An evidentiary hearing
may sometimes be the only reliable way to resolve disputed issues. See, e.g., United
States v. Jimenez Martinez, 83 F.3d 488, 494-95 (1st Cir. 1996) (finding
error in district court’s denial of defendant’s motion for evidentiary
hearing given questionable reliability of affidavit on which the district court
relied at sentencing); United States
v. Roberts, 14 F.3d 502, 521(10th Cir. 1993) (remanding because district
court did not hold evidentiary hearing to address defendants’ objections
to drug quantity determination or make requisite findings of fact regarding
drug quantity); see also, United
States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979), cert. denied,
444 U.S. 1073 (1980). The sentencing court must determine the appropriate procedure
in light of the nature of the dispute, its relevance to the sentencing determination,
and applicable case law.
In determining the relevant facts, sentencing judges are not restricted to
information that would be admissible at trial. See 18
U.S.C. § 3661; see also United
States v. Watts, 519 U.S. 148, 154 (1997) (holding that lower evidentiary
standard at sentencing permits sentencing court’s consideration of acquitted
conduct); Witte v. United States,
515 U.S. 389, 399-401 (1995) (noting that sentencing courts have traditionally
considered wide range of information without the procedural protections of
a criminal trial, including information concerning criminal conduct that may
be the subject of a subsequent prosecution); Nichols
v. United States, 511 U.S. 738, 747-48 (1994) (noting that district
courts have traditionally considered defendant’s prior criminal conduct
even when the conduct did not result in a conviction). Any information may
be considered, so long as it has sufficient indicia of reliability to support
its probable accuracy. Watts,
519 U.S. at 157; Nichols, 511
U.S. at 748; United States v. Zuleta-Alvarez,
922 F.2d 33 (1st Cir. 1990), cert. denied,
500 U.S. 927 (1991); United States
v. Beaulieu, 893 F.2d 1177 (10th Cir.), cert. denied,
497 U.S. 1038 (1990). Reliable hearsay evidence may be considered. United
States v. Petty, 982 F.2d 1365 (9th Cir. 1993), cert. denied,
510 U.S. 1040 (1994); United States
v. Sciarrino, 884 F.2d 95 (3d Cir.), cert. denied,
493 U.S. 997 (1989). Out-of-court declarations by an unidentified informant
may be considered where there is good cause for the non-disclosure of the informant’s
identity and there is sufficient corroboration by other means. United
States v. Rogers, 1 F.3d 341 (5th Cir. 1993); see also United
States v. Young, 981 F.2d 180 (5th Cir.), cert. denied,
508 U.S. 980 (1993); United States v.
Fatico, 579 F.2d 707, 713 (2d Cir. 1978), cert. denied,
444 U.S. 1073 (1980). Unreliable allegations shall not be considered. United
States v. Ortiz, 993 F.2d 204 (10th Cir. 1993).
The Commission believes that use of a preponderance of the evidence standard
is appropriate to meet due process requirements and policy concerns in resolving
disputes regarding application of the guidelines to the facts of a case.
Historical Note: Effective
November 1, 1987. Amended effective November 1, 1989 (see Appendix
C, amendment 294); November 1, 1991 (see Appendix
C, amendment 387); November 1, 1997 (see Appendix
C, amendment 574); November 1, 1998 (see Appendix
C, amendment 586); November 1, 2004 (see Appendix
C, amendment 674).