Petition for Writ of Certiorari — Kenneth James Barfield, Petitioner v. United States

No. ________________

In the Supreme Court of the United States

KENNETH JAMES BARFIELD, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MAUREEN SCOTT F RANCO

Federal Public Defender

KRISTIN L. DAVIDSON

Assistant Federal Public Defender

Western District of Texas

727 E. César E. Chávez Blvd., B-207

San Antonio, Texas 78206-1205

(210) 472-6700

(210) 472-4454 (Fax)

Counsel of Record for Petitioner

i

QUESTION PRESENTED FOR REVIEW

According to Gall v. United States, 552 U.S. 38 (2007), every

federal criminal sentencing must begin with a correctly calculated

Guidelines range. Sentencing judges have the power to find facts

that increase the Guidelines range—and sentence—based on relevant, uncharged conduct when those facts are proved by a preponderance of the evidence. See United States v. Watts, 519 U.S. 148

(1997). Federal Rule of Criminal Procedure 32(i) sets out the procedure at sentencing for how a court resolves disputes so that legally found facts drive a court’s Guidelines calculation and sentencing decision.

The question presented is: Where the Government offers no evidence at sentencing in response to an objection to a factual assertion in the presentence report that increases a sentencing Guidelines range, does Rule 32(i) prohibit the sentencing court from placing the burden of proof on the defendant to support the objection

factually, as the Fifth Circuit Court of Appeals requires?

No. ________________

In the Supreme Court of the United States

KENNETH JAMES BARFIELD, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

Petitioner Kenneth James Barfield asks that a writ of certiorari issue

to review the opinion and judgment entered by the United States Court

of Appeals for the Fifth Circuit on October 25, 2019.

PARTIES TO THE PROCEEDING

The caption of this case names all parties to the proceeding in the

court whose judgment is sought to be reviewed.

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...................................... i

PARTIES TO THE PROCEEDING ................................................ ii

TABLE OF AUTHORITIES ........................................................... iv

OPINION BELOW ............................................................................1

JURISDICTION OF THE SUPREME COURT OF THE UNITED

STATES .............................................................................................1

FEDERAL RULE OF CRIMINAL PROCEDURE INVOLVED .....1

STATEMENT ....................................................................................1

REASONS FOR GRANTING THE WRIT .......................................7

CONCLUSION ............................................................................... 17

APPENDIX

United States v. Barfield,

941 F.3d 757 (5th Cir. 2019)

iv

TABLE OF AUTHORITIES

Cases

Gall v. United States,

552 U.S. 38 (2007) ................................................................. i, 7, 8

Jones v. United States,

135 S. Ct. 8 (2014) ...................................................................... 16

Molina-Martinez v. United States,

136 S. Ct. 1338 (2016) .................................................................. 7

Peugh v. United States,

569 U.S. 530 (2013) ...................................................................... 8

Rita v. United States,

551 U.S. 338 (2007) ...................................................................... 7

United States v. Barfield,

941 F.3d 757 (5th Cir. 2019) .......................................... 1, 2, 6, 14

United States v. Beasley,

442 F.3d 386 (6th Cir. 2006) ...................................................... 10

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015) ...................................................... 8

United States v. Blue,

536 F. App’x 353 (4th Cir. 2013) ............................................... 15

United States v. Burke,

80 F.3d 314 (8th Cir. 1996) ........................................................ 10

United States v. Cesare,

581 F.3d 206 (3d Cir. 2009) ......................................................... 9

United States v. Cummings,

337 F. App’x 313 (4th Cir. 2009) ............................................... 15

United States v. Electrodyne Sys. Corp.,

147 F.3d 250 (3d Cir. 1998) ......................................................... 9

v

United States v. Gricco,

277 F.3d 339 (3d Cir. 2002) ......................................................... 9

United States v. Harrison,

743 F.3d 760 (10th Cir. 2014) .................................................... 11

United States v. Johnson,

342 F.3d 731 (7th Cir. 2003) ...................................................... 15

United States v. Leyva-Franco,

311 F.3d 1194 (9th Cir. 2002) .................................................... 11

United States v. McCants,

434 F.3d 557 (D.C. Cir. 2006) .................................................... 12

United States v. Melquiades,

139 F. App’x 172 (11th Cir. 2005) ............................................. 15

United States v. Miele,

989 F.2d 659 (3d Cir. 1993) ....................................................... 10

United States v. Pinkerton,

279 F. App’x 382 (6th Cir. 2008) ............................................... 15

United States v. Poor Bear,

359 F3d 1038 (8th Cir. 2004) ..................................................... 11

United States v. Roberts,

919 F.3d 980 (6th Cir. 2019) ...................................................... 10

United States v. Rodriguez,

732 F.3d 1299 (11th Cir. 2013) .................................................. 12

United States v. Sabillon-Umana,

772 F.3d 1328 (10th Cir. 2014) .................................................... 8

United States v. Sumner,

325 F.3d 884 (7th Cir. 2003) ...................................................... 12

United States v. Terry,

916 F.2d 157 (4th Cir. 1990) ...................................................... 12

vi

United States v. Watts,

519 U.S. 148 (1997) ................................................................... i, 8

United States v. Wyatt,

19 F.3d 1283 (8th Cir. 1994) ...................................................... 15

Statutes

21 U.S.C. § 841(a)(1) ........................................................................ 3

21 U.S.C. § 841(b)(1)(B) ................................................................... 3

21 U.S.C. § 851 ................................................................................. 3

28 U.S.C. § 1254(1) .......................................................................... 1

Rules

Fed. R. Crim. P. 32 ............................................................... 9, 10, 12

Fed. R. Crim. P. 32(c)(1) ................................................................ 11

Fed. R. Crim. P. 32(i) ..............................................................passim

Fed. R. Crim. P. 32(i)(3)(B) .....................................................passim

Sup. Ct. R. 13.1 ................................................................................ 1

United States Sentencing Guidelines

U.S. Sentencing Guidelines Manual (U.S.S.G.),

ch. 1, pt. A, subpt. 1.3 (2016) ....................................................... 7

U.S.S.G. §1B1.2(a) ........................................................................... 8

U.S.S.G. §1B1.2(b) ........................................................................... 8

U.S.S.G. §1B1.3 ................................................................................ 8

U.S.S.G. §2D1.1.............................................................................. 13

U.S.S.G. §2D1.1(c)...................................................................... 4, 15

vii

U.S.S.G. §6A1.3(a) ........................................................................... 8

1

OPINION BELOW

A copy of the opinion of the court of appeals is reported as

United States v. Barfield, 941 F.3d 757 (5th Cir. 2019), and is attached to this petition at Pet. App. A.

JURISDICTION OF THE SUPREME COURT OF THE

UNITED STATES

The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on October 25, 2019. This

petition is filed within 90 days after entry of judgment. See Sup.

Ct. R. 13.1. The Court has jurisdiction to grant certiorari under 28

U.S.C. § 1254(1).

FEDERAL RULE OF CRIMINAL PROCEDURE

INVOLVED

The question presented involves Federal Rule of Criminal Procedure 32(i)(3)(B), which provides that, at sentencing, the court

“must—for any disputed portion of the presentence report or other

controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.”

STATEMENT

1. Kenneth James Barfield pleaded guilty to a drug trafficking

offense that involved about 31 grams of methamphetamine. The

2

presentence report said that he was responsible for a much larger

amount, which dramatically increased his Sentencing Guidelines

range. Barfield objected and argued that the evidence in the report

did not support the higher amount, but the district court overruled

the objection, adopted the presentence report, and imposed a

within-Guidelines sentence of 30 years’ imprisonment.

2. Mr. Barfield, now 27, suffers from an untreated methamphetamine addiction that began when he was eleven years’ old. After he was released in April 2017 from a four-year term of imprisonment for robbery, Mr. Barfield resumed his daily abuse of controlled substances.

Officers from the Midland, Texas Police Department first

learned that Mr. Barfield was selling methamphetamine some

time in November 2017, after a confidential informant purchased

about 11 grams of methamphetamine for $475. 1 The officers were

surveilling Mr. Barfield on November 17 and initiated a traffic

stop. A search of Mr. Barfield’s car revealed drug paraphernalia,

$917 (which included the $475 from the confidential informant),

and about 20 grams of methamphetamine.

1 The Fifth Circuit’s assumption, that the Midland Police Depart-

ment “began surveilling him shortly after his release” in April 2017, see

Barfield, 941 F.3d at 759, is not supported by the record facts.

3

Mr. Barfield was charged with possessing with intent to distribute five grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The Government also

sought an enhanced penalty under 21 U.S.C. § 851 based on a prior

conviction for simple possession of methamphetamine.

Mr. Barfield pleaded guilty. A probation officer prepared a revised presentence report, which said that “[w]hen Barfield was

questioned by officers, he admitted to obtaining a pound of methamphetamine a week since he was released from prison.” There

were no recordings or transcripts of this statement, and the probation officer who wrote the police report did not cite the source he

relied on in order to attribute the non-verbatim synopsis to Mr.

Barfield. 2 Nonetheless, the officer recommended that Mr. Barfield

be held responsible for a total of 12.2 kilograms of methamphetamine, the product of multiplying a pound of methamphetamine

(453.6 grams) by 27, the number of weeks Mr. Barfield had been

out of prison. This estimate raised his base offense level under

2 During Mr. Barfield’s plea hearing, the Government proffered that

its evidence would show that Mr. Barfield, in a post-arrest statement,

admitted to obtaining one pound of methamphetamine per week since

the time he had been released from prison, which was April 2017. However, Mr. Barfield objected to those statements, and the district court

excluded them from the factual basis in support of his guilty plea.

4

guideline §2D1.1(c) from 26 to 38. Combined with a criminal history category of VI, the officer recommended a Guidelines imprisonment range of 360 months to life. Without the estimated methamphetamine, Mr. Barfield’s advisory Guidelines range would

have been 120 to 150 months.

Mr. Barfield objected to his offense level, arguing that the relevant conduct calculation was not based on reliable evidence.

At sentencing, the Government did not offer evidence to support the assertion in the presentence report that Mr. Barfield had

admitted to selling over 12.2 kilograms of methamphetamine, nor

did the Government participate in the argument. Instead, defense

counsel discussed a legal argument he had made in a separate, unrelated case before the same judge the previous week. In that other

case, defense counsel had challenged the reliability of the defendant’s recorded admission to establish relevant conduct. The court

overruled Mr. Barfield’s objection to relevant conduct for the same

reasons, he said, as he had done so the previous week in the other

case.

The district court adopted the presentence report without

change. When asked to allocute, Mr. Barfield said that he had

never in his life seen the amount of methamphetamine he was being held accountable for, and pointed out that he did not have the

5

money that would have reflected trafficking in such a large

amount. The court sentenced him to 360 months’ imprisonment, to

be followed by 8 years’ supervised release.

3. On appeal, Mr. Barfield argued that the relevant conduct

included in the presentence report lacked an adequate evidentiary

basis because the Government had failed to present a preponderance of reliable evidence to support the increase in the drug offense

level. In addition, the relevant conduct estimate was not plausible

on the record. It was undisputed that Mr. Barfield was a daily

abuser of controlled substances, and there was no factual relationship between the actual evidence—31 grams of methamphetamine

involved in the first three weeks of November—and the extrapolation that he sold 453 grams each week for 27 weeks. Selling 12.2

kilograms of methamphetamine would have yielded approximately

$450,000, but, as Mr. Barfield said in his allocution and as the

presentence report reflected, he did not have the assets to reflect

those sales. Mr. Barfield’s timely objection to the relevant conduct

was sufficient to trigger the Government’s burden to present evidence in support of the Guidelines increase at sentencing, which

the Government failed to do. Therefore, the district court erred by

adopting the presentence report’s relevant conduct calculation.

6

The court of appeals held that it was not clear error for the

district court “to rely on a PSR’s account of a defendant’s post-arrest, Mirandized admission of relevant conduct where the defendant has objected to the reliability of his own statement but has

failed to introduce evidence to rebut it.” Barfield, 941 F.3d at 763;

Pet. App. A. The court acknowledged that “[t]he Government did

not offer a transcript or recording of Barfield’s post-arrest interview, nor did it call the officers who interviewed him to testify at

the sentencing hearing.” Id. at 761; Pet. App. A. But it explained

that, “[w]ithout any evidence to support Barfield’s claims [of unreliability and implausibility], … we can only weigh his assertions

against the account presented by the PSR—and as we have recognized, it is proper for the district court to rely on a presentence

report’s construction of evidence to resolve a factual dispute, rather than rely on a defendant’s version of the facts.” Id. at 766.

7

REASONS FOR GRANTING THE WRIT

1. To resolve a contested assertion in a presentence report, the

resolution of which affects the calculation of the Sentencing Guidelines range, the Fifth Circuit Court of Appeals places the initial

burden of proof on a criminal defendant to support his objection

factually. This minority approach inverts the proper order of operations under Rule 32(i), and invites mistakes and miscalculations

that risk sending defendants to prison for longer terms based on

significant procedural errors. The Court should grant certiorari to

clarify that, after a defendant objects to an assertion in the presentence report that increases a Guidelines calculation, Federal Rule

of Criminal Procedure 32(i)(3)(B) requires a sentencing court to resolve that dispute by placing the initial burden on the Government

to present evidence supporting the Guidelines increase.

2. The first step in every criminal sentencing requires the district court to properly calculate a defendant’s advisory Guidelines

range. See U.S. Sentencing Guidelines Manual (U.S.S.G.), ch. 1,

pt. A, subpt. 1.3 (2016); Rita v. United States, 551 U.S. 338, 349

(2007); Gall v. United States, 552 U.S. 38, 49 (2007). A properly

calculated Guidelines range is both “the starting point” for any

sentence, Gall, 552 U.S. at 38, and “the lodestar,” Molina-Martinez

v. United States, 136 S. Ct. 1338, 1346 (2016). A court that miscal-

8

culates a Guidelines range commits a “significant procedural error.” Gall, 552 U.S. at 51. And because the Guidelines often act as

an anchor for the court’s sentencing decision, a miscalculated

Guidelines range creates a significant risk that a longer sentence

is imposed by mistake. Peugh v. United States, 569 U.S. 530, 541–

42 (2013).

Calculating a defendant’s base offense level under the Guidelines is a factual determination based on the offense of conviction,

as well as relevant conduct. See U.S.S.G. §1B1.2(a), (b); §1B1.3; see

also United States v. Bell, 808 F.3d 926, 927 (D.C. Cir. 2015) (Kavanaugh, J., concurring in the denial of rehearing en banc). The

Due Process Clause tolerates an increase to a defendant’s term of

imprisonment—within the statutorily authorized range—based on

uncharged, relevant conduct, providing a judge finds that the relevant facts are supported by a preponderance of the evidence. See

United States v. Watts, 519 U.S. 148, 156 (1997); U.S.S.G.

§6A1.3(a). There is a “proper order of operations” at sentencing

that requires a sentencing court to find facts, first, and make judgments, second, to ensure that the procedural and substantive safeguards are met. United States v. Sabillon-Umana, 772 F.3d 1328

(10th Cir. 2014).

9

The proper order of operations a sentencing court must follow

when resolving factual disputes is set forth in Federal Rule of

Criminal Procedure 32(i)(3)(B) (“Sentencing and Judgment”),

which requires sentencing courts to rule on disputed issues in the

presentence report that will affect a defendant’s sentence. As the

Third Circuit has explained, Rule 32 “permits a sentencing court

to accept a presentence report as its findings of fact, but there is

an exception for ‘any unresolved objection’ to the … report.” United

States v. Gricco, 277 F.3d 339, 355 (3d Cir. 2002), 3 overruled on

other grounds as stated in United States v. Cesare, 581 F.3d 206,

208 n.3 (3d Cir. 2009). Under Rule 32(i)(3)(B), a court “must—for

any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing,

or because the court will not consider the matter at sentencing.”

As the Third Circuit opinion continues, “This Rule is strictly enforced and failure to comply with it is grounds for vacating the sentence.” Id. (quoting United States v. Electrodyne Sys. Corp., 147

F.3d 250, 255 (3d Cir. 1998)).

3 Gricco cites an earlier version of Rule 32, but the later revision and

recodification does not change its meaning.

10

When a defendant objects to a presentence report’s assertion

that increases his Guidelines range, a sentencing court is prohibited from relying solely on the presentence report’s recitations—

some independent, reliable showing becomes necessary before the

district court can resolve the dispute, as it is required to do under

Rule 32(i). See, e.g., United States v. Beasley, 442 F.3d 386, 392

(6th Cir. 2006) (district court correctly took evidence and ruled on

the defendant’s objections to the presentence report’s characterization of one of his convictions, pursuant to Fed. R. Crim. P. 32(i));

United States v. Burke, 80 F.3d 314, 315 (8th Cir. 1996) (“when fact

statements in a presentence investigative report (PSR) are challenged by a defendant, the PSR itself is not evidence and the government must prove those facts at the sentencing hearing.”).

A majority of the circuit courts of appeals understand this to

be the proper order of operations under Rule 32(i). See, e.g., United

States v. Miele, 989 F.2d 659, 665 (3d Cir. 1993) (holding that district court’s failure to follow Rule 32 to resolve factual dispute was

alone grounds for vacating defendant’s sentence, in addition to the

unreliability of the relevant conduct used to estimate the drug

quantity); United States v. Roberts, 919 F.3d 980, 988 (6th Cir.

2019) (“When a defendant actively disputes a factual portion of the

presentence report that might affect his sentence, the district court

11

must affirmatively rule on the matter and may not merely summarily adopt the factual findings in the presentence report or

simply declare that the facts are supported by a preponderance of

the evidence.”) (cleaned up); United States v. Poor Bear, 359 F3d

1038, 1041 (8th Cir. 2004) (“The PSR is not evidence. If the defendant objects to any of the factual allegations contained therein on

an issue on which the government has the burden of proof, such as

the base offense level and any enhancing factors, the government

must present evidence at the sentencing hearing to prove the existence of the disputed facts. The district court cannot rely on facts

at sentencing that have not been proved by a preponderance of the

evidence.”) (cleaned up); United States v. Leyva-Franco, 311 F.3d

1194, 1197 (9th Cir. 2002) (“Appellee acknowledges that Rule

32(c)(1) requires the sentencing court to expressly resolve factual

conflicts that affect the [temporal term of a] sentence or to expressly determine that no finding is necessary.”); United States v.

Harrison, 743 F.3d 760, 763 (10th Cir. 2014) (“At sentencing, the

district court may rely on facts stated in the presentence report

unless the defendant has objected to them. When a defendant objects to a fact in a presentence report, the government must prove

that fact at a sentencing hearing by a preponderance of the evidence.”); United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir.

12

2013) (“When a defendant challenges one of the factual bases of his

sentence ... the Government has the burden of establishing the disputed fact by a preponderance of the evidence.… It is the district

court’s duty to ensure that the Government carries their burden

by presenting reliable and specific evidence”) (cleaned up); United

States v. McCants, 434 F.3d 557 (D.C. Cir. 2006) (holding that district court’s failure to resolve contested disputes in the presentence

report violated Rule 32 because the fact-finding requirement “protect[s] a defendant’s due process rights to be sentenced on the basis

of accurate information, and facilitates appellate review by furnishing a clear record of the resolution of disputed facts). 4

3. Despite Mr. Barfield’s objections, the district court in this

case failed to comply with the plain language of Rule 32(i), as interpreted by a majority of the circuit courts of appeals. It did not

hold the Government to its burden of producing evidence so that it

could make a finding on the disputed assertion that dramatically

4 The Fourth and Seventh Circuit join the Fifth Circuit in placing

the initial burden on the defendant to prove the objection. See United

States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (“The defendant has

an affirmative duty to make a showing that the information in the

presentence report is unreliable, and articulate the reasons why the

facts contained therein are untrue or inaccurate.”); United States v.

Sumner, 325 F.3d 884, 890 (7th Cir. 2003) (A defendant has the burden

of producing at least some evidence that the PSR is unreliable or inaccurate beyond a bare denial, if the facts set forth in a PSR bear “sufficient indicia of reliability to support [their] probable accuracy.”).

13

increased Mr. Barfield’s base offense level under guideline §2D1.1.

Mr. Barfield objected to the relevant conduct and reliability of the

presentence report’s calculation of drug quantity, which was based

on an assertion that he had admitted to selling 12.2 kilograms of

methamphetamine. But no recording or transcript exists to support this assertion, and no testimony was presented at sentencing.

The need for evidence to resolve the dispute over relevant conduct was supported by other, uncontested portions of the presentence report, which highlighted Mr. Barfield’s untreated drug addiction and daily abuse of controlled substances during the same

period of time. Instead, the district court relied on its ruling the

week before in a factually distinct and unrelated case where the

relevant conduct was based on the defendant’s recorded statement.

The district court overruled Mr. Barfield’s objection to relevant

conduct and summarily adopted the presentence report, without

requiring the Government to present evidence or even participate

in the argument. The court failed to follow the proper order of operations required by Rule 32(i).

On appeal, the Fifth Circuit did not address Mr. Barfield’s objections regarding the presentence report’s failure to adequately

document the evidence on which the sentence was enhanced, ex-

14

cept for the assertion that Mr. Barfield had admitted to the relevant conduct. It assumed this fact, relying on the description in the

presentence report, to hold that the mathematical extrapolation

for a non-verbatim synopsis Mr. Barfield is alleged to have said

was reliable. It found no merit in Mr. Barfield’s objections to the

use of the disputed portion of the presentence report to establish

both the fact and the nature of the relevant conduct, holding that

a sentencing court is entitled to rely on the presentence report’s

“construction of evidence to resolve a factual dispute.” Barfield,

941 F.3d at 766; Pet. App. A. The Fifth Circuit requires that the

defendant bear the initial burden of rebutting the disputed assertion, which it held Barfield failed to do, instead of assigning the

initial burden to the Government to present evidence in support of

the Guidelines increase. Id.

The Fifth Circuit attempted to bolster its holding that a district

court can rely solely on a presentence report’s disputed assertion

that a defendant admitted to relevant conduct by pointing to cases

from other circuits. See 941 F.3d at 766, n.38–43; Pet. App. A. But

15

in those other cases, the courts affirmed the district court’s findings based on some form of evidence—usually testimonial—presented by the Government during the sentencing hearing. 5

Mr. Barfield timely objected and disputed the assertions in the

presentence report used to increase his Guidelines range by 20

years. Rule 32(i)(3)(B) thus barred the sentencing judge from relying on the presentence report alone, and instead required the Government to come forward with a preponderance of reliable evidence. Rule 32(i)(3)(B) then required the court to rule on Mr. Barfield’s objection to the presentence report’s calculation of drug

quantity used to establish the base offense level under guideline

§2D1.1(c). Perhaps Mr. Barfield could have been responsible for

some relevant conduct, but the very existence and content of his

5 See United States v. Pinkerton, 279 F. App’x 382 (6th Cir. 2008)

(relying on testimony presented at sentencing); United States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003) (holding that a “drug dealer’s selfincriminating statement to a drug enforcement agent, which was offered

at sentencing solely through the testimony of the agent (as opposed to a

written confession or testimony by the dealer), was sufficiently reliable”); United States v. Blue, 536 F. App’x 353, 355 (4th Cir. 2013) (“the

court is permitted to rely on direct or hearsay testimony of lay witnesses”); United States v. Cummings, 337 F. App’x 313, 315 (4th Cir.

2009) (relying on testimony of an agent at sentencing); United States v.

Wyatt, 19 F.3d 1283 (8th Cir. 1994) (relying on testimony presented at

sentencing hearing). In United States v. Melquiades, 139 F. App’x 172,

175 (11th Cir. 2005), the defendant at first “argued that he never told

the officers the weight of the transported drugs, [but then] he later conceded that he ‘believe[d] that he did tell the [officers] that he believed it

was five pounds.’”

16

statements in the presentence report were never established.

There is no recording or transcript of an interview with Mr. Barfield. The presentence report cited no sources for where it derived

its assertion that he had admitted to selling 12.2 kilograms of

methamphetamine. The Government presented no evidence at

sentencing. The sentencing court failed to properly address Mr.

Barfield’s objection in compliance with Rule 32(i)(3)(B). The Fifth

Circuit affirmed because it believes the initial burden to resolve a

disputed assertion in the presentence report is carried by a defendant. In Mr. Barfield’s case, it was his burden to disprove the relevant conduct calculation that increased his Guidelines range by 20

years. This is not the proper order of operations for calculating a

Guidelines range, and it is at odds with how the majority of circuit

courts of appeals interpret Rule 32(i).

4. It is questionable whether the Constitution allows for such a

dramatic increase in a defendant’s sentence based on judge-found

facts. See, e.g., Jones v. United States, 135 S. Ct. 8 (2014) (Scalia,

J., dissenting from denial of certiorari). As long as a district court

enjoys this power, however, there ought to be a uniform understanding and application of Rule 32(i)(3)(B)’s proper order of operations for resolving factual disputes that affect the proper calculation of a Guidelines range and the length of a defendant’s term of

17

imprisonment. This Court should grant certiorari to consider

whether Rule 32(i)(3)(B), if fully observed, prohibits the defendant

from carrying the initial burden of proving his objection factually,

where the Government has offered no evidence in support of the

disputed portion of the presentence report that increases his

Guidelines range.

CONCLUSION

FOR THESE REASONS, Mr. Barfield asks this Honorable Court to

grant a writ of certiorari.

Respectfully submitted.

MAUREEN SCOTT FRANCO

Federal Public Defender

Western District of Texas

727 E. César E. Chávez Blvd., B-207

San Antonio, Texas 78206

Tel.: (210) 472-6700

Fax: (210) 472-4454

s/ Kristin L. Davidson

KRISTIN L. DAVIDSON

Assistant Federal Public Defender

Counsel of Record for Petitioner

DATED: January 23, 2020