Sentencing — relevant conduct

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U.S. Court of Appeals for the 7th Circuit

Criminal

Sentencing — relevant conduct

Where the district court made no findings as to the amount of drugs attributable to the defendant the sentence must be vacated.

“Our review is stymied because the court did not make a clear finding as to the quantity of drugs it found attributable to Garrett. It is undisputed that the evidence at trial concerned approximately 241 grams of cocaine. Adopting this quantity would have resulted in a base offense level of 30. But the sentencing court can increase a defendant’s sentence based on other relevant conduct not proven at trial, such as the amount of drugs attributable to defendant, so long as that conduct is proven by a preponderance of the evidence. See United States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003). The court is not limited by the rules of evidence at sentencing, but the evidence considered in determining the drug quantity attributable to the defendant must carry indicia of reliability. United States v. Westmoreland, 240 F.3d 618, 630 (7th Cir. 2001). The PSR, relying on Agent Labno’s statement that Garrett admitted to purchasing at least two kilograms of cocaine from Hicks, concluded that Garrett was responsible for at least 840 grams but less than 2.8 kilograms, resulting in a base offense level of 34. The PSR then applied a two-level enhancement for obstruction of justice for a final offense lev-el of 36. The court, at sentencing, stated its belief that 36 was the appropriate offense level. But it never gave any indication of the drug quantity for which it found Garrett person-ally responsible.”  Affirmed in part, and Vacated in part.

13-1182 U.S. v. Garrett

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Williams, J.