504 U.S. 946 (1992), 91-6658, Kinder v. United States

Docket NºNo. 91-6658
Citation504 U.S. 946, 112 S.Ct. 2290, 119 L.Ed.2d 214, 60 U.S.L.W. 3796
Party NameKinder v. United States
Case DateMay 26, 1992
CourtUnited States Supreme Court

Page 946

504 U.S. 946 (1992)

112 S.Ct. 2290, 119 L.Ed.2d 214, 60 U.S.L.W. 3796

Kinder

v.

United States

No. 91-6658

United States Supreme Court

May 26, 1992

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

The petition for a writ of certiorari is denied.

WHITE, J., dissenting

JUSTICE WHITE, dissenting.

Petitioner Larry Kinder presents three issues related to his guilty plea and sentence for conspiring to possess methamphetamine with intent to distribute: (1) the burden of proof at the sentencing hearing; (2) district court reliance on conduct made

Page 947

the basis of counts dismissed pursuant to a plea bargain; and (3) Fifth Amendment self-incrimination implications of the acceptance of responsibility guideline, United States Sentencing Commission, Guidelines Manual (USSG), § 3E1.1 (Nov. 1991). The Courts of Appeals have come into conflict on each of these issues, which reflect important and recurring problems in procedures under the Sentencing Guidelines. For the following reasons, I would grant the [112 S.Ct. 2291] petition for certiorari as to each of these issues.

A

Petitioner was arrested following an undercover investigation into major methamphetamine dealers in the area of Waco, Texas. During the operation, petitioner expressed to an undercover officer that he had not wanted to buy a large amount

because he had 17 ounces of methamphetamine on the street, and had not collected all of the money from the sale of [it].

946 F.2d 362, 365 (CA5 1991). Instead, petitioner, with the assistance of his brother, David,[1] purchased approximately one-half pound (269 grams) of methamphetamine. Following arrest, petitioner pleaded guilty to a one-count indictment of conspiring to possess more than 100 grams of methamphetamine with intent to distribute. 21 U.S.C. §§ 846 and 841(a)(1). In exchange for the plea, the government promised not to prosecute him for any additional offenses. At sentencing, however, when calculating the base offense level, the District Court included, upon recommendation by the government, the noncharged 17 ounces (481.93 grams) of methamphetamine of which petitioner had spoken. The District Court also declined to grant petitioner a downward adjustment for acceptance of responsibility, in part because he refused to admit to possession of this additional methamphetamine.

Before the Fifth Circuit, petitioner asserted that, when including the noncharged amounts of methamphetamine as relevant conduct which raised his base offense level from 26 to 30 points, the District Court relied on evidence lacking sufficient indicia of reliability to meet the dictates of due process. See Townsend v. Burke, 334 U.S. 736, 741 (1948); USSG § 6A1.3, p.s. (resolution of disputed factors requires information with "sufficient indicia of

Page 948

reliability to support its probable accuracy"). Petitioner argued that his statement was mere "puffery" that lacked corroboration, emphasizing that he made such statements only to engender confidence in his distribution capabilities.

Like most Courts of Appeals, the Fifth Circuit requires district courts to determine its factual findings at sentencing by a preponderance of the evidence, which findings are reviewed on appeal solely for clear error. United States v. Angulo, 927 F.2d 202, 205 (1991); see also United States v. Blanco, 888 F.2d 907, 909 (CA1 1989); United States v. Guerra, 888 F.2d 247, 250-251 (CA2 1989), cert. denied, 494 U.S. 1090 (1990); United States v. Urrego-Linares, 879 F.2d 1234, 1237-1238 (CA4), cert. denied, 493 U.S. 943 (1989); United States v. Carroll, 893 F.2d 1502, 1506 (CA6 1990); United States v. White, 888 F.2d 490, 499 (CA7 1989); United States v. Frederick, 897 F.2d 490, 491-493 (CA10), cert. denied, 498 U.S. ___ (1990); United States v. Alston, 895 F.2d 1362, 1372-1373 (CA11 1990). However, at least one Circuit has held, United States v. Kikumura, 918 F.2d 1084, 1098-1102 (CA3 1990), and two have suggested, United States v. Townley, 929 F.2d 365, 369-370 (CA8 1991); United States v. Restrepo, 946 F.2d 654, 661, n. 12 (CA9 1991) (en banc), cert. denied, 503 U.S. ___ (1992); Restrepo, 946 F.2d at 661-663 (Tang, J., concurring), id. at 664-679 (Norris, J., dissenting), that a clear and convincing evidence standard is appropriate when the relevant conduct offered at sentencing would dramatically increase the sentence.[2] Cf. id. at 663-664 (Pregerson, J., dissenting) (advocating beyond reasonable doubt standard). However, even these Circuits recognize that [112 S.Ct. 2292] the preponderance standard ordinarily pertains. See United States v. McDowell, 888 F.2d 285, 290-291 (CA3 1989); United States v. Sleet, 893 F.2d 947, 949 (CA8 1990); United States v. Wilson, 900 F.2d 1350, 1353-1354 (CA9 1990).

Page 949

In a marginal case, such a difference in the standard of review could well prove dispositive, especially where, as in the Fifth Circuit,

[a] defendant who objects to the use of information bears the burden of proving that it is "materially untrue, inaccurate or unreliable."

946 F.2d at 366 (quoting Angulo, 927 F.2d at 205). The Sentencing Guidelines do not explicitly adopt a standard of proof required for relevant conduct, and we have not visited this issue since its new procedures took effect in November 1987. See McMillan v. Pennsylvania, 477 U.S. 79, 91-93 (1986) (preponderance standard for sentencing enhancements satisfies due process). The burden of proof at sentencing proceedings is an issue of...

To continue reading

Request your trial
6 practice notes
  • Schedules of Controlled Substances: Rescheduling of Hydrocodone Combination Products From Schedule III to Schedule II
    • United States
    • Federal Register August 22, 2014
    • 22 d5 Agosto d5 2014
    ...authority under separation of powers doctrine); U.S. v. Kinder, C.A.5 (Tex.) 1991, 946 F.2d 362, cert. denied, 503 U.S. 987, cert. denied, 504 U.S. 946, rehearing denied, 505 U.S. 1238 (Attorney General followed proper procedures in reclassifying methamphetamine as schedule II controlled su......
  • Foreword: beyond Blakely and Booker: pondering modern sentencing process.
    • United States
    • Journal of Criminal Law and Criminology Vol. 95 Nbr. 3, March 2005
    • 22 d2 Março d2 2005
    ...the Federal Sentencing Guidelines, 105 HARV. L. REV. 1880 (1992). (73) 488 U.S. 361 (1989). (74) See generally Kinder v. United States, 504 U.S. 946, 947-50 (1992) (White, J., dissenting from denial of certiorari). (75) In Wade v. United States, 504 U.S. 181 (1992), the Court held that, abs......
  • Procedural rights at sentencing.
    • United States
    • Notre Dame Law Review Vol. 90 Nbr. 1, November - November 2014
    • 1 d6 Novembro d6 2014
    ...circuit courts have generally concluded that due process imposes a preponderance standard at sentencing. See Kinder v. United States, 504 U.S. 946, 948 (1992) (White, J., dissenting from denial of certiorari) (collecting cases). Although the Court has not imposed a burden of proof, it has s......
  • Fifth Amendment first principles: the self-incrimination clause.
    • United States
    • Michigan Law Review Vol. 93 Nbr. 5, March - March 1995
    • 1 d3 Março d3 1995
    ...the issue of whether the sentencing reduction can be conditioned on defendant's admitting to uncharged conduct. Kinder v. United States, 112 S. Ct. 2290 (1992). The defendant agreed to a plea bargain but then was denied the sentencing reduction when he refused to admit to conduct to which h......
  • Request a trial to view additional results
5 books & journal articles
  • Foreword: beyond Blakely and Booker: pondering modern sentencing process.
    • United States
    • Journal of Criminal Law and Criminology Vol. 95 Nbr. 3, March 2005
    • 22 d2 Março d2 2005
    ...the Federal Sentencing Guidelines, 105 HARV. L. REV. 1880 (1992). (73) 488 U.S. 361 (1989). (74) See generally Kinder v. United States, 504 U.S. 946, 947-50 (1992) (White, J., dissenting from denial of certiorari). (75) In Wade v. United States, 504 U.S. 181 (1992), the Court held that, abs......
  • Procedural rights at sentencing.
    • United States
    • Notre Dame Law Review Vol. 90 Nbr. 1, November - November 2014
    • 1 d6 Novembro d6 2014
    ...circuit courts have generally concluded that due process imposes a preponderance standard at sentencing. See Kinder v. United States, 504 U.S. 946, 948 (1992) (White, J., dissenting from denial of certiorari) (collecting cases). Although the Court has not imposed a burden of proof, it has s......
  • Fifth Amendment first principles: the self-incrimination clause.
    • United States
    • Michigan Law Review Vol. 93 Nbr. 5, March - March 1995
    • 1 d3 Março d3 1995
    ...the issue of whether the sentencing reduction can be conditioned on defendant's admitting to uncharged conduct. Kinder v. United States, 112 S. Ct. 2290 (1992). The defendant agreed to a plea bargain but then was denied the sentencing reduction when he refused to admit to conduct to which h......
  • Capital Punishment in America.
    • United States
    • Michigan Law Review Vol. 91 Nbr. 6, May 1993
    • 1 d6 Maio d6 1993
    ...1991) (holding counsel ineffective for failure to investigate for mitigating evidence), cert. denied, 112 S. Ct. 2282 and cert. denied, 112 S. Ct. 2290 (1992); Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991) (same), cert. denied, 112 S. Ct. 1516 (1992). See generally White, supra note 12. (5......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT