U.S. v. Frederick, No. 89-6009

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore McKAY and SETH, Circuit Judges, and CONWAY; McKAY
Citation897 F.2d 490
Decision Date28 February 1990
Docket NumberNo. 89-6009
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Karen Sue FREDERICK, Defendant-Appellant.

Page 490

897 F.2d 490
UNITED STATES of America, Plaintiff-Appellee,
v.
Karen Sue FREDERICK, Defendant-Appellant.
No. 89-6009.
United States Court of Appeals,
Tenth Circuit.
Feb. 28, 1990.
Rehearing Denied April 13, 1990.

Susan M. Otto, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

D. Blair Watson, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before McKAY and SETH, Circuit Judges, and CONWAY, District Judge. *

Page 491

McKAY, Circuit Judge.

This case involves a challenge to the defendant's sentence which was imposed under the federal sentencing guidelines.

I. Facts

Defendant was charged and sentenced for possession of nineteen grams of heroin with intent to distribute. It is uncontroverted by either party that defendant was also involved in other criminal activities. Defendant participated as a front for the sale of heroin. She was also recorded making a deal to supply cocaine; and cocaine was found during the subsequent search of her house.

Following her arrest defendant entered into a plea agreement with the United States. In exchange for her full and complete cooperation, the government agreed to reduce the charges to a single count of possession of nineteen grams of heroin with intent to distribute. Defendant's plea of guilty under the plea agreement was accepted by the trial court which then proceeded to sentencing.

During the sentencing phase, the trial court relied on all of the defendant's criminal activities--including activities not involving the nineteen grams of heroin--in computing the base offense level under the sentencing guidelines. The trial court rejected defendant's objection to the use of this non-charged criminal activity in the presentence report. The trial court concluded that the government had the burden to prove that noncharged criminal activity actually took place. However, the test for this activity was a "preponderance of the evidence" and not "beyond a reasonable doubt." The trial court held an evidentiary hearing and ultimately sentenced defendant partially based on non-charged criminal activity.

Defendant appeals her sentence on two grounds. Initially, she claims that the trial court's use of non-charged criminal activity in computing her sentence violated her right to due process because she was sentenced for crimes of which she had never been convicted. Secondly, defendant challenges the Sentencing Commission's 1988 revision of the sentencing guidelines--which required judges to consider non-charged criminal activity in reaching a sentence--as beyond the Commission's statutory authority. We address each challenge in turn.

II. Standard of Review

Both of the defendant's challenges--whether the guidelines violate due process and whether the Commission acted outside its authority--are questions of law subject to de novo review by this court. In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.1988). When an issue concerns a question of law, the standard of review on appeal is the same as that which was applied by the trial court in making its initial ruling. Boise City Farmers Co-op v. Palmer, 780 F.2d 860, 866 (10th Cir.1985). Therefore, we apply our independent judgment to each of defendant's challenges. We hold that the trial court correctly denied defendant's challenge on the first ground, and we conclude that the second ground has no merit. As a result, we affirm the trial court's sentence.

III. Due Process

Initially we note that there is no question that the guidelines were properly applied by the trial court. Defendant simply claims that the guidelines, as correctly applied, violated her due process rights. The guidelines required the trial court to sentence the defendant based on evidence of offenses which were not proved beyond a reasonable doubt. 1 Defendant claims that she should only be sentenced for offenses which have been proven to the level that would support a conviction--beyond a

Page 492

reasonable doubt. We affirm the trial court's rejection of the beyond-a-reasonable-doubt standard and thus conclude that the trial court's action did not violate defendant's due process rights.

Defendant cited no authority for her claim that the standard for sentencing evidence should be beyond a reasonable doubt. Based on several factors, we hold that the correct standard is the preponderance of the evidence.

First, there are several authorities which support the preponderance-of-the-evidence standard. The federal sentencing guidelines did not repeal or change 18 U.S.C. Sec. 3661 (1985). Section 3661 states: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." Prior to the sentencing guidelines, sentencing courts relied on section 3661, and its predecessor 18 U.S.C. Sec. 3577, in considering virtually any relevant information--without any prescribed burden of proof--in making sentencing decisions. In Smith v. United States, 551 F.2d 1193, 1196 (10th Cir.1977), we stated that former section 3577 "was enacted in order to clearly authorize the trial judge to rely upon information of alleged criminal activity for which the defendant has not been prosecuted." Without a modification of this statute, the continued practice of considering all relevant evidence is presumptively correct.

The Supreme Court has also specifically supported the preponderance of the evidence test in a relevant case. In McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Court considered a Pennsylvania statute which required sentencing courts to impose a minimum sentence of five years for certain felonies if the sentencing judge found, by a preponderance of the evidence, that the person visibly possessed a firearm during the commission of the offense. The firearm consideration was not part of the offense, but was only considered at the sentencing phase. The Supreme Court noted: "The Act operates to divest the judge of discretion to impose any...

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48 practice notes
  • U.S. v. Sanchez, Nos. 89-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...States v. Ross, 905 F.2d 1050, 1054 (7th Cir.1990); United States v. Restrepo, 903 F.2d 648 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 493 (10th Cir.1990); United States v. Candito, 892 F.2d 182, 186 (2d 7 See, e.g., United States v. Wilson, 900 F.2d 1350, 1353 (9th Cir.1990)......
  • U.S. v. Galloway, No. 90-3034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 17, 1992
    ...from pleading guilty. See Ebbole, 917 F.2d at 1501; Miller, 910 F.2d at 1332-33 (Merritt, J., dissenting); United States v. Frederick, 897 F.2d 490, 491 n. 1 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990). We recognize the danger that United States Attorneys......
  • USA v. Jackson, Nos. 98-6487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 2, 2000
    ...1492 (holding factual issues relevant to the degree of punishment are to be decided by the trial court). Cf. United States v. Frederick, 897 F.2d 490, 492-93 (10th Cir.) (holding sentencing factors need not be proven to the jury beyond a reasonable doubt), cert. denied, 498 U.S. 863 (1990).......
  • U.S. v. Saucedo, No. 91-6126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 13, 1991
    ..."Normally, failure to alert the trial court to an error precludes review of that same issue by this court." United States v. Frederick, 897 F.2d 490, 494 (10th Cir.) (citing United States v. Mitchell, 783 F.2d 971, 975 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (......
  • Request a trial to view additional results
48 cases
  • U.S. v. Sanchez, Nos. 89-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...States v. Ross, 905 F.2d 1050, 1054 (7th Cir.1990); United States v. Restrepo, 903 F.2d 648 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 493 (10th Cir.1990); United States v. Candito, 892 F.2d 182, 186 (2d 7 See, e.g., United States v. Wilson, 900 F.2d 1350, 1353 (9th Cir.1990)......
  • U.S. v. Galloway, No. 90-3034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 17, 1992
    ...from pleading guilty. See Ebbole, 917 F.2d at 1501; Miller, 910 F.2d at 1332-33 (Merritt, J., dissenting); United States v. Frederick, 897 F.2d 490, 491 n. 1 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990). We recognize the danger that United States Attorneys......
  • USA v. Jackson, Nos. 98-6487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 2, 2000
    ...1492 (holding factual issues relevant to the degree of punishment are to be decided by the trial court). Cf. United States v. Frederick, 897 F.2d 490, 492-93 (10th Cir.) (holding sentencing factors need not be proven to the jury beyond a reasonable doubt), cert. denied, 498 U.S. 863 (1990).......
  • U.S. v. Saucedo, No. 91-6126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 13, 1991
    ..."Normally, failure to alert the trial court to an error precludes review of that same issue by this court." United States v. Frederick, 897 F.2d 490, 494 (10th Cir.) (citing United States v. Mitchell, 783 F.2d 971, 975 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (......
  • Request a trial to view additional results

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