By: WISCONSIN LAW JOURNAL STAFF//December 2, 2010//
Criminal Procedure
Sentencing; inaccurate information; plain error
Where the district judge relied on an improper factor in imposing sentence, the sentence must be reversed, although the defendant failed to object.
“There is a distinct possibility that the district court’s reliance on the nonexistent fact that Mr. Corona-Gonzalez previously had been removed and then reentered the United States to deal drugs affected the district court’s sentencing assessment. We therefore must conclude that allowing the present sentence to stand without a reassessment would affect the ‘fairness, integrity or public reputation of [the] proceedings.’ Olano, 507 U.S. at 732 (internal quotation marks omitted). It is established firmly that ‘convicted defendants have a due process right to be sentenced on the basis of accurate and reliable information.’ United States v. Kovic, 830 F.2d 680, 684 (7th Cir. 1987); see also United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 740-41 (1948). If the district court did indeed sentence Mr. Corona-Gonzalez based on a fact not supported by the record, it would deprive Mr. Corona-Gonzalez of this right. Consequently, even under plain error review, we must afford him an opportunity to have the district court reassess his sentence.”
Reversed and Remanded.
09-3993 U.S. v. Corona-Gonzalez
Appeal from the United States District Court for the Southern District of Indiana, Hamilton, J., Ripple, J.
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=09-3993_002.pdf