United States v. Bernardine

United States Court of Appeals,

Eleventh Circuit.

No. 94-4240.

UNITED STATES of America, Plaintiff-Appellee,

v.

Donn Darryl BERNARDINE, Defendant-Appellant.

Jan. 29, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-6026-Cr), Kenneth L. Ryskamp, Judge.

Before ANDERSON and BARKETT, Circuit Judges, and YOUNG*, Senior
District Judge.

BARKETT, Circuit Judge:

Donn Darryl Bernardine appeals from a sentence imposed by the

district court following his guilty pleas to conspiring to deal in

firearms without a license and making false statements to a

federally licensed firearms dealer, see 18 U.S.C. §§ 371,

922(a)(1)(A) & 924(a)(1)(A). Bernardine argues on appeal that the

district court erred in enhancing his base offense level by two

levels on the ground that he was a marijuana user. Because we

conclude that the evidence was insufficient to support a finding

that Bernardine was a marijuana user, we vacate the sentence and

remand to the district court.

I.

We review the sentencing court's findings of fact for clear

error and its application of law to those facts de novo. United

States v. Rojas, 47 F.3d 1078, 1080 (11th Cir.1995).

*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
 The district court sentenced Bernardine under § 2K2.1(a) of

the United States Sentencing Guidelines, which sets the base

offense level for prohibited transactions involving firearms.

While § 2K2.1(a)(7) establishes an initial base offense level of

12, the district court enhanced Bernardine's offense level upon a

finding that he was a marijuana user pursuant to § 2K2.1(a)(6),

which provides for a level 14 "if the defendant is a prohibited

person." The accompanying commentary, upon which the court

relied,1 defines "prohibited person" as, among other things, anyone

who is "an unlawful user of, or is addicted to, any controlled

substance." U.S.S.G. § 2K2.1, comment. (n. 6). Bernardine

objected to the offense enhancement at sentencing, and on appeal he

argues that the court should not have enhanced his offense level

because the government failed to carry its burden of proving that

he was a marijuana user.

II.

In United States v. Scroggins, 880 F.2d 1204, 1209 (11th

Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d

946 (1990), we stated that "[g]uideline sentencing is an

adversarial process [which] envisions a confrontation between the

parties similar to that which occurs at a civil bench trial." We

noted that the pre-sentence investigation report ("PSI") serves the

purpose of a pretrial stipulation in a civil case:

1
Commentary in the Guidelines Manual interpreting or
explaining a guideline is binding on the courts unless it
violates the Constitution or a federal statute, or is
inconsistent with or a plainly erroneous interpretation of that
guideline. Stinson v. United States, --- U.S. ----, ----, ----,
113 S.Ct. 1913, 1917, 1919, 123 L.Ed.2d 598 (1993).
 In this [PSI], the probation officer sets out the facts of the
case and explains how the guidelines should be applied to
those facts. After the probation officer prepares the report,
he submits it to the parties, who then have the opportunity to
object to the probation officer's factual recitations and
guideline applications. The probation officer then makes
whatever changes in the presentence report that he believes
are necessary, and summarizes in an addendum to the report any
objections that remain—thereby enumerating the disputed
factual and legal issues that the court must resolve at the
sentencing hearing.

Id. at 1209 n. 11; see also United States v. Wise, 881 F.2d 970,

971-72 (11th Cir.1989).

When, as here, a defendant challenges one of the factual

bases of his sentence as set forth in the PSI, the government has

the burden of establishing the disputed fact by a preponderance of

the evidence. United States v. Ismond, 993 F.2d 1498, 1499 (11th

Cir.1993). As this Court has explained:

Although not as rigorous as the reasonable doubt or clear and
convincing standards, the preponderance standard is not
toothless. It is the district court's duty to ensure that the
Government carries this burden by presenting reliable and
specific evidence. As one of our sister circuits noted:

[T]he Guidelines do not reduce district court judges to
mere automatons, passive compilers of ciphers, or
credulous naifs who must accept as canon all that which
is presented to them regarding a defendant's involvement
in the crime charged or conduct relevant thereto....
[T]he preponderance of the evidence standard ... does not
relieve the sentencing court of the duty of exercising
the critical fact-finding function that has always been
inherent in the sentencing process.... [The standard
signifies] a recognition of the fact that if the
probation officer and the prosecutor believe that the
circumstances of the offense, the defendant's role in the
offense, or other pertinent aggravating circumstances,
merit a lengthier sentence, they must be prepared to
establish that pertinent information by evidence adequate
to satisfy the judicial skepticism aroused by the
lengthier sentence that the proffered information would
require the district court to impose.

United States v. Wise, 976 F.2d 393, 402-03 (8th Cir.1992),
cert. denied, --- U.S. ----, 113 S.Ct. 1592, 123 L.Ed.2d 157
(1993).... Moreover, while the Guidelines allow a district
 court to "consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of
reliability to support its probable accuracy,' U.S.S.G. §
6A1.3(a) (Nov. 1, 1994), this relaxed evidentiary standard
does not grant district courts a license to sentence a
defendant in the absence of sufficient evidence when that
defendant properly objects to a PS[I]'s conclusory factual
recitals.

United States v. Lawrence, 47 F.3d 1559, 1566-67 (11th Cir.1995)

(emphasis added) (citations omitted). Thus, to support an offense

enhancement under § 2K2.1(6), the government has the burden of

presenting "reliable and specific" evidence that Bernardine was an

"unlawful user of" marijuana. This the government failed to do.

III.

In the PSI, the probation officer cites two instances of

Bernardine's involvement with controlled substances. The PSI

indicates first that Bernardine once traded marijuana for an

automatic rifle, and second that he unsuccessfully negotiated an

exchange of firearms for narcotics.2 In addition, the PSI

concludes:

The defendant denies any history of drug or alcohol abuse. In
fact, Bernardine specifically stated he only experimented with
marijuana in high school and never used the substance
regularly. Transcripts provided by the government, however,
indicate the defendant used marijuana on a regular basis and
was involved in the sales of marijuana.

(emphasis added). Bernardine objected to the court's consideration

of the assertions in the PSI, disputing the fact that he was a

marijuana user. In support of his position, Bernardine presented

four witnesses at the sentencing hearing, all of whom testified

2
The PSI's references to exchanges of controlled substances
for firearms have no bearing on whether Bernardine was a
marijuana user.
that they had known him for several years, that they met with him

several times a week, and that they never saw him use marijuana.

In response to Bernardine's challenge, the government stated

that its "primary evidence ... to show that during the time of this

conspiracy [Bernardine] was a prohibited person within the meaning

of the sentencing guidelines" would be transcripts of two

tape-recorded conversations between Bernardine and an undercover

agent. However, the sole reference in the transcripts to

Bernardine's marijuana use occurred when Bernardine was describing

an unrelated event involving a third person and gratuitously added

that he had "quit smoking pot." After expressing its doubt about

the statement's relevance to establish that Bernardine was a

marijuana user during the conspiracy,3 the court asked the

government whether it had any witnesses who had seen Bernardine

smoking marijuana. The government responded by asserting that it

could produce three witnesses who were involved in the conspiracy

and would testify that they had smoked marijuana with Bernardine.

The government, however, produced no such witnesses. Bernardine

objected to the government's assertion, claiming that at least one

of the government's potential witnesses had denied that he was

going to say that he smoked marijuana with Bernardine.

Notwithstanding Bernardine's objection, however, the

sentencing court accepted the government's representation of the

3
At one point in the sentencing hearing, the district court
asked the prosecutor:

Well, when he says I quit, how do you know he didn't
quit a year ago? I mean, there is no way to know what
he is talking about.
facts without requiring it to present any of the witnesses,

stating:

Again, the frustration with the guidelines. Apparently what
we have been told and instructed is that we can take proffers
of testimony, that's proper.... The government has proffered
the testimony of people who were at these deals who were used
as straw men, who said they smoked marijuana with them. I
will retain the 14 points as indicated by the probation
office. I will deny your request to lower it.

Upon review of the record, we conclude that the court

misapprehended the legal requirements of proof in sentencing and

erred in finding that a preponderance of the evidence supported the

government's suggestion that Bernardine was a marijuana user.

IV.

We first address Bernardine's statement that he "quit smoking

pot." As the district court noted, the statement is problematic

because it does not provide any indication as to when Bernardine

quit. Clearly, under § 2K2.1(a)(6) and the accompanying

commentary, a defendant's unlawful use of a controlled substance

must be ongoing and contemporaneous with the commission of the

offense. The government conceded as much at the sentencing

hearing:

Your Honor, I would say in fairness that that provision ought
to be interpreted to require that they be a user during the
time period of the conduct charged as part of the indictment.

Although it appears upon review of the sentencing transcript that

Bernardine did at one time "smok[e] pot," it is equally clear that

he had "quit." There is nothing in the record which tells us

whether he quit weeks or years before the onset of the conspiracy,

or only days before making the statement. Accordingly,

Bernardine's statement is inherently insufficient to establish that
he was a "user" during the firearms conspiracy to which he pled

guilty.

Second, the government's "proffer" that it could produce

three witnesses who would testify to smoking marijuana with

Bernardine at some unspecified time in the past also fails to

support the enhancement in light of Bernardine's objections. Where

a defendant objects to an allegation in a PSI and offers evidence

at a sentencing hearing to rebut the basis for the allegation,

courts may not simply accept a conclusion in the PSI without any

evidentiary support. Here, the PSI's conclusion that Bernardine

was a marijuana user was based specifically on government

transcripts, but as the district court noted, the sole statement in

the transcripts referring to such use was insufficient to support

that conclusion. Thus, the government had the burden of coming

forth with some evidence to support the PSI's "conclusory factual

recitals." Lawrence, 47 F.3d at 1567. The prosecutor's mere

"proffer" that there were potential witnesses who would support

such a conclusion could not provide the missing evidence.

While case law from this circuit permits a district court to

consider reliable hearsay evidence at sentencing,4 the kind of

4
See Lawrence, 47 F.3d at 1567 (courts may consider
"relevant information without regard to its admissibility under
the rules of evidence applicable at trial," provided the
information has "sufficient indicia of reliability to support its
probable accuracy") (citing U.S.S.G. § 6A1.3(a)); United States
v. Query, 928 F.2d 383, 384-85 (11th Cir.1991) (findings of fact
which district court makes in reliance on hearsay statements
contained in co-conspirator's PSI not erroneous); United States
v. Castellanos, 904 F.2d 1490, 1496 (11th Cir.1990) (sentencing
court may consider hearsay statements so long as defendant has
"the opportunity to rebut the evidence or generally to cast doubt
upon its reliability").
"proffer" which the court accepted here was neither reliable nor

evidentiary. The prosecutor's bald statement that he could produce

three witnesses who would testify to smoking marijuana with

Bernardine cannot support the enhancement. The prosecutor himself

could not testify to the fact of Bernardine's alleged marijuana

use, a fact about which he had no personal knowledge. Moreover,

Bernardine was unable to challenge the allegation: he could

neither examine the "witness-prosecutor" nor confront the potential

declarants. Accordingly, the district court's reliance on the

"proffer" of testimony was not "proper."

V.

In light of Bernardine's objections, and in the absence of

"reliable and specific" evidence to the contrary, we conclude that

the PSI's allegation that Bernardine was a marijuana user lacked

the requisite "indicia of reliability" to support an enhancement

under § 2K2.1(a)(6). Accordingly, we vacate Bernardine's sentence

and remand to the district court for further proceedings consistent

with this opinion.5

VACATED and REMANDED.

5
We affirm the sentence, without discussion, with respect to
all of the remaining issues which Bernardine raised on appeal.
See 11th Cir.R. 36-1.