explaining that § IB 1.3 “instructs that differentiation between co-conspirators is required” and remanding the case for resentencing so that the district court could “determine the scope of the criminal activity [the defendant] agreed to undertake”
How later courts described this case
- explaining that § IB 1.3 “instructs that differentiation between co-conspirators is required” and remanding the case for resentencing so that the district court could “determine the scope of the criminal activity [the defendant] agreed to undertake”
- holding that Guidelines require “differentiation between co-conspirators” and that defendant’s ability to foresee the total amount involved in a conspiracy was not sufficient to impose sentence based on that amount
- noting in drug conspiracy case that "the district court did not address, implic- itly or explicitly, the scope of the criminal activity [the defendant] agreed to jointly undertake," and that as a result, the court "lack[ed] an adequate basis on which to differentiate between" the defendant and other coconspirators
- holding that illegally seized evidence may be considered at sentencing as long as the evidence was not obtained for the purpose of enhancing the defendant’s sentence
Written by the judges who cited it.
The opinion
KEITH, Circuit Judge,
concurring in part and dissenting in part.
While I concur in Sections I, II, III.B. of the majority opinion, I must dissent from this court’s exclusionary rule analysis in section III.A. of the majority opinion.
It is axiomatic that the exclusionary rule applies to suppress the presentation of evidence seized in violation of the Fourth Amendment. Placing unnecessary emphasis on the subjective intent of police officers who seize evidence, the majority, however, concludes that this suppressed evidence may be utilized in the calculation of a sentence under the sentencing guidelines. The majority holds that, if it can be shown that the suppressed evidence was seized for the express purpose of enhancing the sentence, then the evidence should be excluded. Absent a showing that the police officers intentionally violated the fourth amendment, the majority rationalizes that the deterrence rationale of the exclusionary rule is not satisfied and thus the evidence may be used.
I disagree and find compelling Judge East-erbrook’s discussion of the purpose and application of the exclusionary rule in United States v. Jewel, 947 F.2d 224, 238-40 (7th Cir.1991) (Easterbrook, J., concurring). There, Judge Easterbrook instructs:
As for doctrine: the fourth amendment establishes an objective standard. I think it most unlikely that the Supreme Court will admit intent through the back door in deciding whether to apply the exclusionary rule. Application is categorical: the exclusionary rule applies, or it doesn’t, to one or another juncture of litigation____ Not one of the Supreme Court’s opinions implies *1348 that the rule may apply when the police have one motive and dissolve when the police have a different one---- Evidence seized on the authority of a warrant is admissible unless the warrant was so weak that reliance was “objectively” unreasonable, or unless the officers procuring the warrant misrepresented or withheld material facts. Neither of the exceptions makes anything of intent. The exclusionary rule is a prophylactic: it applies across the board in situations where the incentives for the police and the deterrence provided by the rule are such that exclusion is required and without reference to what motivated the particular search in issue.
Id. at 239 (citations omitted).
By engaging in a subjective intent inquiry, the majority indeed makes “serious inroads” into the exclusionary rule and ultimately the protections afforded by the fourth amendment. See id. Specifically, the majority undermines the warrant requirement and lessens the general public’s protection from unreasonable police seizures. Accordingly, I would remand the ease for resentencing and' exclude the illegally seized evidence from the calculation.