holding that the defendant’s voluntary revelation to his probation officer during a presentence meeting that he regularly purchased cocaine to support his habit, resulting in the proba tion officer’s recalculation of the defendant’s base offense level and sentencing range for his drug offense, was not a compelled incrimination
How later courts described this case
- holding that the defendant’s voluntary revelation to his probation officer during a presentence meeting that he regularly purchased cocaine to support his habit, resulting in the proba tion officer’s recalculation of the defendant’s base offense level and sentencing range for his drug offense, was not a compelled incrimination
- reproducing the colloquy and holding that it are found guilty and in light of all the difficulties of constituted an effective waiver
- holding, under clear-error review, that regular purchases and sales of cocaine over a 20-month period constituted relevant conduct
- affirming the inclusion, as relevant conduct, of all drugs sold by the defendant during a twenty-month period, including those that predated his three-month affiliation with the charged conspiracy
Written by the judges who cited it.
Distinguished
Distinguished by United States v. Tilford, 85 F. App'x 516 (2004)
Barrett and Miller are inapposite because the uncharged conduct in those cases was unquestionably related to the respective defendant’s sentence and the only issue presented then was whether
The opinion
BOYCE F. MARTIN Jr., Circuit Judge,
concurring.
I join Judge Guy’s opinion upholding the sentence imposed upon the defendant, Harold Miller. I write separately to express my concern that the “relevant conduct” *1329 considerations established by the Sentencing Commission in the guidelines are over-broad.
As pointed out by Judge Guy, this circuit has joined the majority of circuits in concluding that the guidelines allow a district court to consider conduct not charged in an indictment for the purpose of determining the base offense level for a defendant’s sentence. See United States v. Smith, 887 F.2d 104 (6th Cir.1989); United States v. Sailes, 872 F.2d 735 (6th Cir.1989). We are bound by those decisions unless an en banc panel reverses their reading of the guidelines on the issue of legitimate usage of relevant conduct in sentencing calculations.
In this case, this circuit’s interpretation of the guidelines’ relevant conduct provisions in Smith and Sailes binds us to affirm the district court’s application of the relevant conduct provisions. I disagree with Chief Judge Merritt’s concerns that the “relevant conduct” provisions raise constitutional difficulties. In United States v. Tucker, 404 U.S. 443, 446-47 , 92 S.Ct. 589, 591 , 30 L.Ed.2d 592 (1972), the Court upheld the general proposition that a district court may consider conduct for which the defendant had not been convicted for the purposes of determining the defendant’s sentence. See Smith, 887 F.2d at 108 n. 5 (so interpreting Tucker). However, I share Chief Judge Merritt’s concern that the guidelines, as written, do not adequately reflect the intent of the Commission regarding the use of “relevant conduct” in determining the sentence. It is one thing to utilize the conduct in positioning a defendant within a determined range; it is quite another to use the conduct to determine the range itself by setting the base offense level. While the guidelines appear to allow the latter, and we have so interpreted them in Sailes and Smith , I now believe that we should re-examine the Commission’s intent regarding this expansive language and the historical usage of “relevant conduct” in the relatively contented period in the federal system before the enactment of the nettlesome guidelines. Consequently, I concur in Judge Guy’s analysis of this case under existing precedent in this circuit with the hope that we shall reconsider our interpretation of the “relevant conduct” provisions in light of the concerns expressed in Chief Judge Merritt’s dissent.