US v. Dolan, CR-1-88-57.

Decision Date22 November 1988
Docket NumberNo. CR-1-88-57.,CR-1-88-57.
Citation701 F. Supp. 138
PartiesUNITED STATES of America v. Jeffrey B. DOLAN.
CourtU.S. District Court — Eastern District of Tennessee

John W. Gill, Jr., U.S. Atty., Steven Cook, Asst. U.S. Atty., Chattanooga, Tenn., for plaintiff.

W. Thomas Dillard, Ritchie, Fels & Dillard, Knoxville, Tenn., for defendant.

MEMORANDUM AND ORDER

EDGAR, District Judge.

This case is before the Court on the motion of defendant Jeffrey B. Dolan ("Dolan") to clarify burden of proof and standard of proof.

Defendant Dolan has pleaded guilty to two counts of distributing cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1). He is to be sentenced under guidelines ("Guidelines") established by the United States Sentencing Commission pursuant to the Comprehensive Crime Control Act of 1984. The United States Probation Office has prepared a presentence report ("PSI"). Under this Court's local rules, both the defendant and the Government have objected to portions of the PSI.

The objections have raised two disputes:

1. The PSI added two "levels" to Dolan's guidelines score because Dolan was a "manager" in this offense pursuant to § 3B1.1(c) of the Guidelines. Dolan objects to this determination.

2. The PSI reduced Dolan's Guidelines score by two "levels" because he has accepted responsibility within the meaning of § 3E1.1 of the Guidelines. The Government has objected to this determination.

This Court will hold a hearing on these disputed issues in accordance with Rule 32(c)(3) of the Federal Rules of Criminal Procedure and § 6A1.3 of the Guidelines. Defendant Dolan's motion raises the issues of (a) who carries the burden of proof at this hearing, and (b) what is the standard of proof.

(a) Who bears the burden?

Heretofore, courts have heard proof and found facts on sentencing matters without a prescribed burden of proof. McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d (1986). However, the advent of the Guidelines and the newly authorized appeals1 from sentences imposed by United States District Courts make it necessary to have uniform burdens of proof and standards of proof to insure fairness and allow intelligible review on appeal.

In recent cases decided under pre-guide-lines sentencing procedures pursuant to Rule 32, Federal Rules of Criminal Procedure, courts have concluded that the Government bore the burden of persuasion on all matters disputed in PSI's where those matters were relied upon by the sentencing judge. United States v. Restrepo, 832 F.2d 146, 149 (11th Cir.1987); United States v. Lee, 818 F.2d 1052, 1056 (2d Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987).

The Government here concedes that it should bear the burden to show that the defendant's sentence should be increased. Thus, the Government concedes that it should have the burden to show in this case that the defendant's sentence should be enhanced because of his role in the offense. However, the Government contends that the defendant should bear the burden of showing that his sentence should be reduced (as, for example, in this case where the defendant contends that he has accepted responsibility). To do otherwise, says the Government, would subject it to the difficulty of proving a negative where the defendant holds the key to relevant information. Cf. United States v. Lee, 818 F.2d at 1056-57.

The Government's contentions have considerable appeal. However, it is clear that whatever determination the Court makes with respect to either of the disputed matters in the PSI, that determination will have the effect of either increasing or reducing the Guidelines applicable to defendant Dolan. This is not essentially different from the situation which existed prior to promulgation of the Guidelines. Moreover, with respect to the "acceptance of responsibility" issue, the commentary to the Guidelines in § 3E1.1 sets out some fairly objective criteria for courts to consider in deciding this issue.2 The Government, it would seem, should for the most part have as much access to this information as the defendant. In this particular case, the Government contends that the defendant threatened one of its witnesses, and that this is evidence of lack of acceptance of responsibility. The Government is in as good a position to offer evidence on this as is the defendant. Therefore, the Court concludes that it is not unreasonable to place the burden of persuasion upon the Government on the issue of acceptance of responsibility.

(b) What is the standard of proof?

The defendant here contends that the standard of proof should be "clear and convincing." The Court rejects this contention and holds instead...

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13 cases
  • U.S. v. Barrett
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 5 Diciembre 1989
    ...government was required to bear the burden of persuasion as to both issues by a preponderance of the evidence. 3 United States v. Dolan, 701 F.Supp. 138, 139-40 (E.D.Tenn.1988). To substantiate their objection to the pre-sentence report's recommendation of a two-level downward adjustment fo......
  • U.S. v. Howard
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 25 Enero 1990
    ...minor participant in the crime. In support of that argument, Howard relies on a district court case from Tennessee, United States v. Dolan, 701 F.Supp. 138 (E.D.Tenn.1988). In Dolan, the court stated that the government would bear the burden of proving that the defendant had not accepted re......
  • U.S. v. Carroll
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 9 Enero 1990
    ...standard is the proper measure." See, e.g., United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989); United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988); United States v. Silverman, 692 F.Supp. 788, 791 (S.D.Ohio 1988). Moreover, although McMillan v. Pennsylvania, 477 U.S. 79, 91,......
  • U.S. v. Ehret, 88-2749
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 13 Septiembre 1989
    ...alternative, the government urges the court to adopt the preponderance of the evidence standard of proof. E.g., United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988). In the present case the district court applied the clear and convincing evidence standard of proof. We hold only that......
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