United States v. Padilla

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 4, 2019
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 18-5009
v.
(D.C. No. 4:17-CR-00019-GKF-8)
(N.D. Okla.)
PABLO ARTURO PADILLA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, HOLMES, and CARSON, Circuit Judges.
In September 2017, Pablo Padilla pleaded guilty to a count of knowingly
and intentionally distributing heroin, in violation of 21 U.S.C. § 841(a) and
(b)(1)(C). In calculating Mr. Padilla’s total offense level under the United States
Sentencing Guidelines (the “Guidelines”), the presentence investigation report
(the “PSR”) included 17.38 grams of methamphetamine and a .25 caliber pistol,
each of which Mr. Padilla had allegedly possessed during a state arrest in August
2016. In a written filing, and again at his sentencing hearing, Mr. Padilla
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
objected to the PSR’s inclusion of the methamphetamine and the firearm, arguing
in relevant part that the government had not shown that any pertinent evidence
was sufficiently reliable to establish the necessary sentencing facts. The district
court, however, overruled Mr. Padilla’s objection, concluding that the police
report from the August 2016 arrest—which had not been introduced into
evidence—was sufficiently reliable to establish that Mr. Padilla possessed the
17.38 grams of methamphetamine and the firearm.
Mr. Padilla now argues that the district court clearly erred in making
factual findings at sentencing by merely relying on a police report that had not
been entered into evidence, and that this error warrants reversal and remand for
resentencing. Moreover, Mr. Padilla argues that we should limit our remand so
that resentencing is confined to the existing record. As to both matters, we agree
with Mr. Padilla. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291and 18 U.S.C. § 3742(a), we reverse the district court’s sentencing judgment and
remand the case for resentencing based on the record as it now stands.
I
Mr. Padilla and fourteen others were federally indicted in 2017 for their
involvement in a Tulsa-based conspiracy to distribute methamphetamine and
heroin. The conspiracy was alleged to have begun “as early as in or about
2
January 2016” and to have continued up to the date of the operative indictment, 1
that is, April 10, 2017. R., Vol. I, at 45 (Superseding Indictment, filed Apr. 10,
2017). As reflected in that indictment, federal investigators had conducted two
controlled purchases of heroin from Mr. Padilla.
In September 2017, Mr. Padilla pleaded guilty to a single count of
knowingly and intentionally distributing heroin, in violation of 21 U.S.C. § 841(a)
and (b)(1)(C). Pursuant to a plea agreement, the government agreed to dismiss
the remaining counts against Mr. Padilla, and he reserved the right to appeal from
contested sentencing issues.
In the run-up to sentencing, the United States Probation Office prepared
Mr. Padilla’s PSR which, in its “Offense Conduct” section, included an August 6,
2016 traffic-stop arrest of Mr. Padilla in Sand Springs, Oklahoma (the “August 6
arrest”). 2 R., Vol. III, at 12 (PSR, dated Dec. 5, 2017). According to the PSR, at
the time of that arrest, Mr. Padilla was in possession of 17.38 grams of
methamphetamine and a .25 caliber pistol. The PSR’s inclusion of the
methamphetamine increased Mr. Padilla’s base offense level under the Guidelines
1
Mr. Padilla was originally indicted in February 2017; that indictment
was superseded by another indictment in April 2017. Both indictments charged
Mr. Padilla with participating in the same Tulsa-based drug conspiracy.
2
State charges filed against Mr. Padilla as a result of the August 6
arrest were dismissed in the period between the February 2017 indictment and the
April 2017 superseding indictment.
3
from sixteen to twenty, see U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.1(c)
(U.S. S ENTENCING C OMM ’ N 2016) [hereinafter U.S.S.G.], 3 and the inclusion of the
pistol resulted in a two-level enhancement for possessing a firearm in connection
with a drug offense, see id. § 2D1.1(b)(1)—yielding an adjusted offense level of
twenty two before an offense-level reduction for acceptance of responsibility.
In a written objection to the PSR, Mr. Padilla contested the inclusion in the
Guidelines sentencing calculation of the 17.38 grams of methamphetamine and
the firearm that he had allegedly possessed during the August 6 arrest. In part, as
relevant here, Mr. Padilla argued that incorporating the methamphetamine and
firearm into the computation of his offense level would violate his due-process
rights. To that end, Mr. Padilla noted that no evidence pertaining to the
methamphetamine and firearm had been provided during discovery, and more
broadly argued that the government had not shown that any relevant evidence was
sufficiently reliable to establish the sentencing facts necessary to support the
enhancements at issue. R., Vol. I, at 117–18 (Obj. to PSR and Sentencing Mem.,
filed Dec. 5, 2017) (“[F]or the same reasons set forth . . . in relation to the
methamphetamine, including the evidence [concerning the firearm] from the
August 6, 2016 arrest violates due process, as there are insufficient indicia of
3
The Probation Office relied on the 2016 edition of the Guidelines in
computing Mr. Padilla’s Guidelines sentencing range. Mr. Padilla does not
challenge this decision on appeal. Therefore, in resolving his sentencing
challenge, we also rely on this edition of the Guidelines.
4
reliability and defense counsel has not had the opportunity to review said
evidence.”). Thus, reasoned Mr. Padilla, the government had not met its burden
of proving by a preponderance of the evidence his possession of 17.38 grams of
methamphetamine and the firearm. Notably, the government’s written response to
Mr. Padilla’s objection did not directly address these reliability-of-the-evidence
arguments with respect to either the methamphetamine or the firearm.
In a subsequent addendum to the PSR, the Probation Office responded to
Mr. Padilla’s objection, stating in relevant part that evidence of the
methamphetamine and firearm “consists of a Tulsa Police Department report
prepared and filed by a Tulsa Police officer on the day of the [August 6] arrest.”
R., Vol. III, at 28 (Addendum to PSR, dated Dec. 11, 2017). “Police reports,” the
Probation Office contended in its addendum, “are the exact type of evidence upon
which the [sentencing court] can rely as police reports have a sufficient indicia of
reliability.” Id. And, though the Probation Office noted “the government’s
oversight in not providing these arrest records with the bulk of the discovery to
defense counsel,” it claimed that “a simple search” of Mr. Padilla’s name in a
publicly accessible state database (specifically, the Oklahoma Supreme Court
Network) would have revealed the charge relating to the August 6 arrest and the
corresponding probable-cause affidavit. Id.
At the sentencing hearing six weeks later, Mr. Padilla’s counsel once more
objected to the PSR’s inclusion of the methamphetamine and the firearm:
5
[N]one of that evidence was brought into this case. We don’t
know if . . . this information was contained in charging papers
that were filed in Creek County[, Oklahoma]. Nobody in this
case on either the government’s side or the defense[’s] side has
ever tested the veracity of this evidence. No photographs of the
handgun were produced or the bullets, the magazine, that the
bullets were allegedly in. There’s no scientific reports showing
that the substance was actually methamphetamine. There’s no
photographs of a substance to even show that there was
something that looks like methamphetamine. . . .
So I don’t believe the government could come into this
courtroom and say that we could show by a preponderance of the
evidence that this . . . was, in fact, methamphetamine and it
weighed this amount and so this should be included within the
court’s analysis for sentencing.
R., Vol. II, at 18–19 (Sentencing Hr’g Tr., dated Jan. 30, 2018). The government
offered no response beyond referring to its earlier written response, which did not
directly address Mr. Padilla’s reliability-of-the-evidence arguments.
Significantly, the government did not attempt to enter into evidence the police
report from the August 6 arrest (the “August 6 police report”) or any other
evidence to establish Mr. Padilla’s alleged possession of the 17.38 grams of
methamphetamine and the firearm.
The district court overruled Mr. Padilla’s objection, finding that the August
6 police report—though it was not in evidence—was “sufficiently reliable to
establish a sentencing fact.” Id. at 23–24. While the court acknowledged that
“the government did not provide this arrest record [in] discovery to defense
6
counsel,” it echoed the Probation Office’s reasoning contained in the PSR
addendum, noting that “Padilla himself knew of the [August 6] incident” and that
he could have readily searched the relevant state database to view the charge
relating to that arrest and the associated probable-cause affidavit. Id. at 24. The
court also remarked that the Probation Office is not limited in its investigation of
a case to the evidence that the government provides.
Based on these findings at his sentencing hearing, the court sentenced Mr.
Padilla to thirty months’ imprisonment. He filed a notice of appeal shortly
thereafter. On appeal, he argues that the government failed to meet its burden at
sentencing to establish his possession of 17.38 grams of methamphetamine and a
firearm. He primarily grounds this argument on the contention that the district
court erred by establishing his methamphetamine and firearm possession merely
by relying on a police report that had not been entered into evidence.
Additionally, Mr. Padilla argues that—if we agree with him and determine that
the district court erred—our remand should instruct the court to limit resentencing
to the existing record because the government was made aware at sentencing of
the deficiency in its proof concerning the methamphetamine and the firearm, yet
made no effort to cure that deficiency.
II
We agree with Mr. Padilla that the district court clearly erred in finding
that he possessed 17.38 grams of methamphetamine and a firearm on August 6 by
7
merely relying on a police report that had not been introduced into evidence.
Based on this reliance, the court upwardly adjusted Mr. Padilla’s Guidelines
sentence. We reverse the court’s sentencing judgment due to this error and
remand the case for resentencing.
A
At bottom, Mr. Padilla contends that the district court improperly
calculated his advisory Guidelines sentencing range because it based upward
adjustments in that range on factual findings concerning his alleged possession of
methamphetamine and a firearm that rested on an unreliable foundation—viz., on
a police report that had not been admitted into evidence. This contention amounts
to a challenge to the procedural reasonableness of Mr. Padilla’s sentence. See
United States v. Sutton, 520 F.3d 1259, 1262 (10th Cir. 2008) (“[P]rocedural
reasonableness addresses whether the district court correctly calculated the
advisory Guidelines range and whether the facts relied on were adequately
supported, i.e. not clearly erroneous.”); see also United States v. Huckins, 529
F.3d 1312, 1317 (10th Cir. 2008) (“Procedural reasonableness addresses whether
the district court incorrectly calculated or failed to calculate the Guidelines
sentence, . . . relied on clearly erroneous facts, or failed to adequately explain the
sentence.”).
At sentencing, the government bears the burden of proving by a
preponderance of the evidence the facts necessary to support an upward
8
adjustment in the Guidelines range. See, e.g., United States v. Flonnory, 630 F.3d
1280, 1285–86 (10th Cir. 2011); see also United States v. Aragon, 922 F.3d 1102,
1108 (10th Cir. 2019) (“The government has the burden of proof and production
during the sentencing hearing to establish the amounts and types of controlled
substances related to the offense. . . . by a preponderance of the evidence.”
(omission in original) (quoting United States v. Deninno, 29 F.3d 572, 580 (10th
Cir. 1994))); United States v. Foy, 641 F.3d 455, 470 (10th Cir. 2011) (stating
that to establish a sentencing enhancement for possession of a dangerous weapon
in connection with a drug-trafficking offense, see U.S.S.G. § 2D1.1(b)(1), “[t]he
government bears the initial burden of showing possession by a preponderance of
the evidence”).
As part of our evaluation of the procedural reasonableness of a sentence,
we review for clear error 4 a sentencing court’s assessment of whether the
4
The government argues that Mr. Padilla did not make a proper factual
objection to the PSR’s findings that he possessed the methamphetamine and the
firearm during the August 6 arrest, and thus that his challenge on appeal to those
findings—including his challenge to the reliability of the evidence supporting
them (i.e., the August 6 police report)—should be subject to plain-error review.
Specifically, the government notes that sentencing courts “may accept any
undisputed portion of the [PSR] as a finding of fact,” F ED . R. C RIM . P.
32(i)(3)(A), and, accordingly, “[i]f a defendant fails to specifically object to a
fact in the PSR, the fact is deemed admitted by the defendant and the government
need not produce additional evidence in support of the admitted fact,” United
States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009). While the government
acknowledges that Mr. Padilla claimed before the district court that “the police
report used to establish both the methamphetamine and gun possession lacked
(continued...)
9
4
(...continued)
sufficient indicia of reliability and should not be considered,” the government
argues that this claim was “legal in nature and failed to dispute specifically that
[Mr. Padilla] possessed methamphetamine and a firearm during the August 6
traffic stop.” Aplee.’s Resp. Br. at 12.
We reject this argument for two salient reasons. First, the district court did
not adopt the PSR based on its understanding that Mr. Padilla had not made a
proper factual objection. Instead—as the government acknowledges—the court
overruled Mr. Padilla’s objection to the PSR’s factual findings by independently
relying on the August 6 police report, which it deemed sufficiently reliable to
establish Mr. Padilla’s methamphetamine and firearm possession. See R., Vol. II,
at 23–24 (“The court . . . finds that the police report filed after the defendant’s
arrest on August 6, 2016, is sufficiently reliable to establish a sentencing fact.”
(emphasis added)); Aplee.’s Resp. Br. at 15 (“[The] sentencing court used the
August 6 police report to establish findings of fact that it cited in overruling
Padilla’s objections.” (emphasis added)); id. at 19 (“The district court arrived at
its [factual] conclusion [regarding the methamphetamine and firearm possession]
not merely by restating the findings of the PSR, but through an independent
source of evidence—the August 6 police report.”).
Second, the government’s contention that Mr. Padilla’s objection to the
PSR did not create a factual dispute—and thus that the PSR’s facts were
effectively admitted by Mr. Padilla under Federal Rule of Criminal Procedure
32(i)(3)(A)—is belied by our cases. They indicate that Mr. Padilla’s specific
challenge to the inclusion of the methamphetamine and firearm in the PSR
properly established the existence of a factual dispute: consistent with the
approach articulated in these cases, he “show[ed] that the information in the
[PSR] was unreliable” by “articulat[ing] the reasons why the facts contained
therein were untrue or inaccurate.” United States v. Barnett, 828 F.3d 1189, 1193
(10th Cir. 2016) (quoting United States v. Chee, 514 F.3d 1106, 1115 (10th Cir.
2008)); see, e.g., United States v. Martinez, 824 F.3d 1256, 1259, 1261 (10th Cir.
2016) (treating defendant as having raised a challenge to the reliability of the
evidence supporting a sentencing enhancement where defendant had objected that
the relevant portion of the PSR was “not readily provable nor supported by
credible evidence”); United States v. Cook, 550 F.3d 1292, 1294–95 (10th Cir.
2008) (indicating that defendant had effectively raised a challenge to the
reliability of the evidence supporting a sentencing enhancement where defendant
(continued...)
10
4
(...continued)
had filed a written objection to the enhancement and then argued at his sentencing
hearing that the “documents provided in response to his objections to the PSR
were unreliable, and therefore did not prove [the factual findings on which his
enhancement was predicated] by a preponderance of the evidence”); United States
v. Martinez-Jimenez, 464 F.3d 1205, 1207, 1208–09 (10th Cir. 2006)
(countenancing defendant’s challenge to the reliability of the evidence supporting
a sentencing enhancement where she had objected to several prior convictions
listed in the PSR on the ground that the “evidence that she had been convicted in
those instances was insufficient”); United States v. Keifer, 198 F.3d 798, 799–800
(10th Cir. 1999) (crediting defendant as having raised a proper factual objection
to a loss amount in the PSR relating to pending state charges where he had
objected on the basis that the loss amount was “speculative because he had not
been convicted of the [state] charges and was unaware of the evidentiary support
for them”); cf. United States v. Mateo, 471 F.3d 1162, 1167 & n.3 (10th Cir.
2006) (defendant did not “challenge any of the facts included in the PSR” because
he did not “claim that the facts in the PSR [were] inaccurate or that the PSR
include[d] information that is not reliable” (emphases added)). As these cases
suggest, a challenge to the reliability of the government’s evidence to prove
certain facts is effectively a contention that the government has not carried its
burden to establish the veracity of those facts by a preponderance of the evidence.
Nor, as the government further argues, was Mr. Padilla required to make a
second objection in order to preserve his argument on appeal. To be sure, we
have held that in order to preserve an argument that the district court failed to
make a necessary factual finding regarding a disputed fact in the PSR, a defendant
must make both an initial objection to that fact and then later object once the
district court has failed to make a specific finding. See United States v.
Williamson, 53 F.3d 1500, 1526–27 (10th Cir. 1995); see also United States v.
Warren, 737 F.3d 1278, 1284–85 (10th Cir. 2013). But Mr. Padilla’s argument on
appeal is not that the district court failed to “rule on the dispute” arising from his
objection to the PSR, F ED . R. C RIM . P. 32(i)(3)(B), nor that the court’s
explanation in resolving that dispute was not “definite and clear,” United States v.
Pena-Hermosillo, 522 F.3d 1108, 1111–13 (10th Cir. 2008) (quoting United
States v. Williams, 374 F.3d 941, 947 n.9 (10th Cir. 2004)). Rather, Mr. Padilla’s
challenge relates to the substantive soundness of the district court’s finding—viz.,
the question of whether the district court clearly erred in finding that Mr.
Padilla’s alleged possession of the methamphetamine and firearm on August 6
(continued...)
11
evidence upon which an enhancement was based “lacked sufficient indicia of
reliability to support [its] probable accuracy.” Martinez, 824 F.3d at 1261;
Martinez-Jimenez, 464 F.3d at 1209–10 (“We . . . conclude that the district court
did not clearly err in finding that the evidence establishing [the defendant’s] prior
conviction was sufficiently reliable.”). To constitute clear error, the sentencing
court’s determination must be found by this court to be “simply not plausible or
permissible in light of the entire record on appeal, remembering that we are not
free to substitute our judgment for that of the district judge.” Cook, 550 F.3d at
1295 (quoting United States v. McClatchey, 316 F.3d 1122, 1128 (10th Cir.
2003)). In other words, “[w]e will not find clear error unless ‘our review of the
entire record leaves us with the definite and firm conclusion that a mistake has
been made.’” Id. (quoting United States v. Ary, 518 F.3d 775, 787 (10th Cir.
2008)).
B
“District courts are not strictly bound by the Federal Rules of Evidence at
sentencing hearings.” United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir.
2013). But, while a sentencing court “may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial,” such
4
(...continued)
was reliably established by the August 6 police report, which had not been
admitted into evidence.
12
relevant information must have “sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3(a); see also Cook, 550 F.3d at 1296
(“[H]earsay statements may be considered at sentencing if they bear ‘some
minimal indicia of reliability.’” (quoting United States v. Browning, 61 F.3d 752,
755 (10th Cir. 1995))). “This reliability floor is a requirement of due process,”
Ruby, 706 F.3d at 1229, helping to enforce “a defendant’s right not to be
sentenced on the basis of materially incorrect information,” Cook, 550 F.3d at
1296.
Not every police report satisfies the reliability floor. See Ruby, 706 F.3d at
1230 (describing potential “concerns” with the police report at issue, including
the police officer’s accuracy in recording information provided to him); United
States v. Dougan, 684 F.3d 1030, 1033 n.3 (10th Cir. 2012) (“[N]ot every [police]
complaint [i.e., report] has sufficient indicia of reliability for use in sentencing.”);
see also United States v. Jordan, 742 F.3d 276, 280 (7th Cir. 2014) (“Police
reports are not presumed to be categorically reliable.”); United States v. Johnson,
710 F.3d 784, 789 (8th Cir. 2013) (“[P]olice reports may be demonstrably reliable
evidence of the fact that an arrest was made [but] they are significantly less
reliable evidence of whether the allegations . . . they contain are true.” (quoting
United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986))); United States v.
Leekins, 493 F.3d 143, 149 (3d Cir. 2007) (remarking that police reports are
13
neither “inherently reliable” nor “inherently unreliable”); accord Olivas-Motta v.
Holder, 746 F.3d 907, 918–19 (9th Cir. 2013) (Kleinfeld, J., concurring).
More specifically, police reports are not inherently reliable because they
“can be adversarial in nature, arising from a confrontation between a suspect and
a police officer.” Jordan, 742 F.3d at 280; see Bell, 785 F.2d at 643–44
(“[P]olice reports . . . do not bear the same indicia of reliability as . . . laboratory
reports. . . . The relationship between police officers and those whom they arrest
is much more personal and adversarial in nature than that between chemists and
those whose urine they test.”). Relatedly, police reports “can also be advocacy
pieces, written for prosecutors to use in deciding whether or how to charge a
suspect.” Jordan, 742 F.3d at 280; see Prudencio v. Holder, 669 F.3d 472, 483
(4th Cir. 2012) (noting that “police reports . . . . are designed only to permit a
determination of probable cause”). And, typically, police reports “are generated
early in an investigation . . . [and thus] do not account for later events, such as . .
. amendments[] or corrections.” Prudencio, 669 F.3d at 483–84.
Indeed, for these very reasons, the Federal Rules of Evidence—“[d]espite
their liberality toward public and business records”—explicitly omit police
reports from the hearsay exception for public records. Olivas-Motta, 746 F.3d at
918; see F ED . R. E VID . 803(8)(A)(ii) (excluding, in criminal cases, “a matter
observed by law-enforcement personnel” from the hearsay exception for public
records); see also F ED . R. E VID . 803 advisory committee’s note to 1974 enactment
14
(“Ostensibly, the reason for this exclusion is that observations by police officers .
. . are not as reliable as observations by public officials in other cases because of
the adversarial nature of the confrontation between the police and the defendant
in criminal cases.”).
And because police reports—as a category of evidence—are not inherently
reliable, it follows that courts cannot resolve a disputed sentencing fact simply by
assuming that information contained in a police report meets the due-process
“reliability floor.” Ruby, 706 F.3d at 1229. Instead, sentencing courts must make
a case-by-case reliability determination. In so doing, they may examine the
record, as a whole, to discern whether there is additional evidence to corroborate
sufficiently the relevant information that the police report is being offered to
establish. They also may find that certain features of the police report
itself—such as its level of detail, internal consistency, and
quality—independently support the probable accuracy of the relevant information
contained therein. See, e.g., Jordan, 742 F.3d at 280 (“We cannot simply assume
that any police report . . . is reliable without more information or corroborating
evidence.” (emphasis added)); see also Martinez, 824 F.3d at 1262–63
(concluding that statements contained in a police report could be relied on at
sentencing given the “substantial corroborative evidence” that those statements
were true); United States v. Harrison, 809 F.3d 420, 424 (8th Cir. 2015)
(“Whether a police report is sufficiently reliable is a question we examine ‘on a
15
case-by-case basis, considering all the relevant circumstances . . . .’” (quoting
Bell, 785 F.2d at 644)); United States v. Jimenez, 275 F. App’x 433, 438 (5th Cir.
2008) (unpublished) (concluding that the police reports at issue had “some indicia
of reliability” in part because they were “long and detailed”); Cook, 550 F.3d at
1297 (holding that statements from two witnesses, contained in a police officer’s
affidavit and in a police report, were sufficiently reliable for use at sentencing in
part because each witness’s statements corroborated the statements of the other);
Leekins, 493 F.3d at 151 (determining that transcribed interviews contained in a
police report were sufficiently reliable in part because of their “detail and internal
consistency”); Crawford v. Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003) (holding
that a police report was sufficiently reliable for use at parole-revocation hearing
in part because it was “quite detailed, an indicia of reliability,” as it provided “a
fairly full account of the circumstances surrounding” the disputed facts).
C
In overruling Mr. Padilla’s objection that there was no reliable evidence to
support his alleged possession of 17.38 grams of methamphetamine and a firearm,
the district court did not cite any evidence in the record to corroborate that
alleged possession. Rather, the court overruled Mr. Padilla’s objection based on a
finding that “the [August 6] police report . . . is sufficiently reliable to establish a
sentencing fact.” R., Vol. II, at 23–24.
16
As noted, however, see supra Section II.B, police reports are not inherently
reliable. See, e.g., Ruby, 706 F.3d at 1230; Leekins, 493 F.3d at 149. While we
do not dispute that some police reports contain sufficient indicia of reliability to
support the probable accuracy of information that they contain, the district court
was obliged to specifically determine that the August 6 police report contained
such indicia before relying on that report. See, e.g., Harrison, 809 F.3d at 424
(explaining that “[w]hether a police report is sufficiently reliable” must be
determined “on a case-by-case basis, considering all the relevant circumstances”
(emphasis added) (quoting Bell, 785 F.2d at 644)).
Moreover, it is improper to find that a specific police report bears sufficient
indicia of reliability to support the probable accuracy of the information it is
being offered to establish unless that police report has been first entered into
evidence. 5 We articulated this position most clearly in Dougan. There, the
defendant had objected to the PSR’s characterization of a prior conviction; the
sole source for that characterization was a police complaint (i.e., report) that had
5
We note that where there is evidence in the record to corroborate the
relevant information in a police report, a sentencing court may rely on that
information even if the police report is not in evidence and the relevant
information it contains is instead merely summarized in a record document such
as the PSR. See Martinez, 824 F.3d at 1260, 1262–63 (upholding the reliability of
statements in a police report for use at sentencing—even though “[t]he
government didn’t introduce the . . . police reports into evidence”—because those
statements were supported by “substantial corroborative evidence”); Ruby, 706
F.3d at 1229–30 (same).
17
not been admitted into evidence. 684 F.3d at 1032, 1033 n.3. We noted that the
district court had examined the complaint during “a sidebar, off-the-record
discussion [at the sentencing hearing] with the probation officer who authored the
PSR. . . . and then chose to rely on it.” Id. In overruling the defendant’s
objection, the court seemed to presume that the specific police complaint in
question was sufficiently reliable to support the probable accuracy of its
characterization. Id. at 1033 (reciting the sentencing court’s reasoning, which
was that “[t]he complaint of the arresting officer clearly states what it states,” and
that the court would “not . . . ignore the report of the complaining officer in that
case”).
On appeal, however, we concluded that the sentencing court’s approach
constituted clear error. Id. at 1033 n.3. Specifically, we noted that “not every
[police] complaint has sufficient indicia of reliability for use in sentencing,” and
thus, while we did not question that some police complaints bear sufficient indicia
of reliability to support the probably accuracy of their characterizations of prior
convictions, the sentencing court was required to determine that the specific
police complaint at issue was a reliable police complaint. Id. And this
determination, we elaborated, required the police complaint to have been entered
into evidence. Id. (“Because the government bears the burden of proving
contested facts at sentencing by a preponderance of the evidence, the failure to
obtain the admission of the [police] complaint in evidence . . . is fatal to its claim
18
that the [police complaint] was reliable.” (emphasis added)). Relatedly, we added
that “[w]ithout a copy of the complaint in the record,” we could not, on appeal,
“assess whether [the complaint] bears sufficient indicia of reliability for use by
the [sentencing] court.” Id.
To be sure, Dougan was ultimately decided on other grounds, id. at
1033–34, and thus its discussion of the sentencing court’s deficient factfinding
with respect to the police complaint arguably is dicta, see United States v. Titties,
852 F.3d 1257, 1273 (“[D]icta are statements and comments in an opinion
concerning some rule of law or legal proposition not necessarily involved nor
essential to determination of the case at hand.” (quoting In re Tuttle, 291 F.3d
1238, 1242 (10th Cir. 2002))); accord Thompson v. Weyerhaeuser Co., 582 F.3d
1125, 1129 (10th Cir. 2009). Even if Dougan’s language is dicta, however, it is
well-reasoned and “emphatic” dicta. United States v. Garcia, 413 F.3d 201, 232
n.2 (2d Cir. 2005) (Calabresi, J., concurring) (“Emphatic dicta will and should be
afforded more weight by later panels than casual dicta.”). In this regard, the
Dougan panel relied on our caselaw and carefully reasoned from the proposition
that “not every complaint has sufficient indicia of reliability for use in
sentencing” in order to arrive at its unequivocal holding—viz., the district court
“clearly erred” in accepting the PSR’s factual characterization of the defendant’s
conviction, where that characterization was solely based on a police complaint
that was never entered into evidence. 684 F.3d at 1033 n.3. Therefore, even if
19
Dougan’s police-complaint discussion is dicta, it has considerable power to
persuade. And we in fact are persuaded by it because it squares with logic and
common sense.
In this connection, if a class of documents—such as police complaints or
police reports—is not inherently reliable, then it makes sense that any individual
document within that class cannot be assumed to be sufficiently reliable to
establish a sentencing fact. Rather, there must be a finding that the specific
document at issue contains sufficient indicia of reliability to support the probable
accuracy of the information it is being offered to establish. And such a finding is
logically appropriate only where the document has been entered into evidence so
that the district court may, on the record, assess factors bearing on the document’s
veracity such as the level of detail, internal consistency, and overall quality of
that document. See, e.g., Leekins, 493 F.3d at 151; Crawford, 323 F.3d at129–30. The document’s admission into evidence before the sentencing court
also is logically necessary because it permits us on appeal to properly evaluate the
court’s determination of “whether [the document] bears sufficient indicia of
reliability for use [at sentencing].” Dougan, 684 F.3d at 1033 n.3; cf. United
States v. Vasquez, 985 F.2d 491, 494 (10th Cir. 1993) (“When the record on
appeal fails to include copies of the documents necessary to decide an issue on
appeal, the Court of Appeals is unable to rule on that issue.”). Thus, guided by
Dougan, we conclude that the district court clearly erred in finding that Mr.
20
Padilla possessed methamphetamine and a firearm during the August 6 arrest by
merely relying on the contents of a police report that had not been entered into
evidence.
D
The government—which does not even cite Dougan in its appellate
brief—argues that it was not obliged under our caselaw to obtain the admission of
the August 6 police report into evidence. In so arguing, the government
effectively contends that the district court was permitted to rely on the report,
even without it having been entered into evidence, in finding that Mr. Padilla
possessed the 17.38 grams of methamphetamine and the firearm. The
government, moreover, argues that Mr. Padilla’s alleged methamphetamine and
firearm possession was in fact corroborated by evidence that was in the record,
and it also suggests that it is significant that Mr. Padilla, at some point before
sentencing, may have had access to the August 6 police report. As we now
explain, these arguments are unpersuasive.
The government first seeks refuge in United States v. Walters, 269 F.3d
1207 (10th Cir. 2001), which it describes as “specifically h[olding] that due
process is not violated when a court enhances a defendant’s sentence using police
reports that were inadvertently not produced to the defense in discovery, so long
as the oversight was not material,” Aplee.’s Resp. Br. at 20. Walters, however, is
inapposite. In that case, the defendant had received a sentencing enhancement for
21
possessing a stolen gun in connection with a felony. See U.S.S.G. § 2K2.1(b)(4).
Challenging that enhancement on appeal, he argued that the government violated
his due-process rights by having failed to disclose the FBI report that was the
source of the PSR’s conclusion that the gun he possessed was in fact stolen.
Walters, 269 F.3d at 1215. Critically, however, the defendant’s due-process
arguments were made on a theory that the withheld FBI report was favorable to
him and thus that, by having not turned over that report, the government violated
its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). See
Walters, 269 F.3d at 1215–16 (noting that defendant’s due-process arguments
pertaining to his stolen-gun sentencing enhancement consisted of an explicit
Brady challenge as well as a fundamental-fairness-based argument that was “in
essence, merely re-packaging” a Brady challenge). We rejected these arguments
on appeal, reasoning in part that the FBI report was actually “inculpatory as to the
sentencing enhancement for possessing a stolen gun” and thus did not qualify as
Brady material. Id. at 1216 (emphasis added). Significantly, however, the
defendant in Walters never lodged a due-process challenge to the reliability of the
withheld FBI report. That is, he did not contend that his stolen-gun sentencing
enhancement was established on the basis of insufficiently reliable
evidence—much less did he make the more specific argument that the government
could not properly establish that he had possessed a stolen gun because the FBI
report on which this fact was based was not admitted into evidence. Accordingly,
22
Walters did not address the question before us today—whether, given the due-
process “reliability floor,” Ruby, 706 F.3d at 1229, a fact may be properly
established at sentencing merely through reliance on a law-enforcement report not
entered into evidence. It is therefore inapposite to the resolution of this case.
The government next suggests that the relevant facts in the August 6 police
report—i.e., Mr. Padilla’s alleged possession of 17.38 grams of methamphetamine
and a firearm—were in fact corroborated because these facts are “consistent with
[Mr. Padilla’s] prior incidents” of narcotics trafficking, as charged in his
conspiracy indictment, and, therefore, these facts rest on a sufficiently reliable
foundation for the court to use them at sentencing. Aplee.’s Resp. Br. at 16; see
id. at 17 (“[T]he court found that the incident described in the August 6 police
report involved a ‘similar modus operandi’ to Padilla’s previous heroin
transactions, thus bolstering its reliability . . . .” (quoting R., Vol. II, at 23)). The
district court, however, gave no indication that it considered Mr. Padilla’s
disputed methamphetamine and firearm possession to be corroborated by either of
Mr. Padilla’s prior incidents of narcotics trafficking. See R., Vol. II, at 23–24
(basing its finding as to Mr. Padilla’s alleged methamphetamine and firearm
possession merely on a determination that the August 6 police report was
sufficiently reliable to establish the alleged possession). And significantly, the
government did not urge the district court to view Mr. Padilla’s prior criminal
conduct as corroborative of the statements in the police report.
23
The few observations the district court did make about Mr. Padilla’s prior
narcotics-trafficking incidents do not alter our analysis. While the court did state
that Mr. Padilla’s August 6 arrest “involved a similar modus operandi” as did his
involvement in the narcotics-trafficking conspiracy (namely based on the fact that
similar amounts of methamphetamine were involved in his August 6 arrest and in
the two prior heroin transactions undertaken as part of the conspiracy), id. at 23,
the court made this comment in support of its conclusion that the alleged
methamphetamine and firearm possession “were part of the same course of
conduct or common scheme or plan” as his heroin-trafficking conviction, see
U.S.S.G. § 1B1.3(a)(2)—not, in other words, in support of its distinct, logically
threshold finding that Mr. Padilla in fact possessed 17.38 grams of
methamphetamine and a firearm during the August 6 arrest, see R., Vol. II, at
23–24. In making that threshold finding, the district court relied solely on the
police report that was not admitted into evidence, and, in doing so, it clearly
erred.
But, even if the district court had relied on evidence of Mr. Padilla’s prior
incidents of similar criminal conduct, our caselaw suggests that such
evidence—though not irrelevant—does only modest work in bolstering the
reliability of evidence of subsequent similar conduct. And here, we conclude that
the prior-incidents evidence concerning Mr. Padilla would not, standing alone,
have provided strong enough corroboration of the statements in the August 6
24
police report to put the district court’s findings concerning Mr. Padilla’s alleged
possession of methamphetamine and a firearm (based on the August 6 report) on a
sufficiently reliable foundation.
In this regard, Ruby is instructive. 706 F.3d 1221. There, we considered
the reliability of statements from a police report alleging that the defendant had
repeatedly punched his girlfriend. Id. at 1228–31. While we stated that it was
relevant to our reliability determination as to that police report that the defendant
had years earlier pleaded guilty to an assault charge for repeatedly punching the
same girlfriend, we said so only after first noting that the police report contained
“corroborating statements” from “three relatively neutral witnesses.” Id. at
1229–30. Moreover, we cautioned against placing too much weight on prior
incidents when assessing the reliability of evidence alleging similar subsequent
conduct, stating that prior incidents may serve only as “another piece” in a
broader reliability inquiry. Id. at 1230.
Similarly, in Martinez, we noted that the statements contained in police
reports concerning the defendant’s possession of a firearm that was stolen from a
home were consonant with the defendant’s long criminal history involving six
theft offenses. See 824 F.3d at 1262. Accordingly, we concluded, the district
court could properly rely on this history to bolster the reliability of the statements
in the police reports. Id. (citing Ruby for its “another piece” language regarding
prior incidents involving similar conduct). But, in Martinez, unlike here, there
25
was substantial additional corroborative evidence lending credibility to the
statements, including the defendant’s possession of the stolen firearm and
“suspicious actions” in concealing it shortly after the home theft, as well as his
inability to “rationally explain how he came to possess the shotgun.” Id.
Thus, in both Ruby and Martinez, where the district court’s reliance on the
challenged statements in sentencing was upheld, there was considerable evidence
to corroborate the statements apart from the evidence of the defendants’ prior
criminal conduct, and it appears that this prior-conduct evidence did modest work
in bolstering the reliability of the statements. Here, there is no such additional
corroborative evidence. And we cannot conclude that the evidence of Mr.
Padilla’s prior narcotics trafficking, standing alone, would have been strong
enough corroboration of the statements in the August 6 police report so as to
place the district court’s findings (based solely on that report) concerning Mr.
Padilla’s possession of methamphetamine and a firearm on a reliable footing.
Lastly, the government—echoing the district court’s reasoning—suggests
that it is significant that Mr. Padilla had access to the August 6 police report, at
least before sentencing. But the government offers no authority to persuade us of
the relevance of this fact. The government had a duty to establish—on the basis
of sufficiently reliable evidence—that Mr. Padilla had possessed 17.38 grams of
methamphetamine and a firearm, see, e.g., Flonnory, 630 F.3d at 1285–86, and
this remained true irrespective of whether Mr. Padilla himself had ever seen, or
26
reasonably could access, the August 6 police report. In other words, the mere fact
that Mr. Padilla might have been able to access the August 6 police report did not
relieve the government of its burden to either offer evidence to corroborate that
Mr. Padilla had in fact possessed 17.38 grams of methamphetamine and a firearm,
or to enter the August 6 police report into evidence and show that the report was
sufficiently reliable—through, for example, its high level of detail and internal
consistency—to establish those facts by itself.
***
Police reports are not inherently reliable. See, e.g., Jordan, 742 F.3d at
280; Ruby, 706 F.3d at 1230. Information contained in such reports thus may not
be used to establish a disputed sentencing fact unless there is evidence in the
record to corroborate that information, or the specific police report in question is
in evidence and contains sufficient indicia of reliability to support the probable
accuracy of the relevant information. See, e.g., Martinez, 824 F.3d at 1262–63;
Leekins, 493 F.3d at 150–51. In overruling Mr. Padilla’s objection to the PSR’s
determination that he possessed the 17.38 grams of methamphetamine and the
firearm, the district court did not point to any evidence that might have
corroborated those facts, and instead made a finding that the August 6 police
report was sufficiently reliable to establish those facts. But, by making this
finding even though the police report had not been entered into evidence, the
27
district court effectively made the mistaken assumption that all police reports are
reliable, and thus the court clearly erred. See Dougan, 684 F.3d at 1033 n.3.
Put another way, the district court could not properly conclude that a police
report bore sufficient indicia of reliability to support the probable accuracy of the
information it was being offered to establish without having that report in
evidence so that the court could make an on-the-record, individualized reliability
assessment, and so that on appeal we could review that assessment. See id. It
was improper for the district court to find a sentencing fact merely by relying on a
police report that had not been entered into evidence. And thus, while “[t]he
Sentencing Guidelines do not set a high threshold of reliability, . . . more is
required than was presented here.” United States v. Fennell, 65 F.3d 812,
813–814 (10th Cir. 1995). Moreover, because there is no evidence in the record
that might independently and meaningfully support Mr. Padilla’s alleged
possession of 17.38 grams of methamphetamine and a firearm, we are left with no
choice but to reverse the district court’s sentencing judgment. Cf. id. (stating that
a sentencing enhancement is improper, thus warranting reversal, when the only
evidence to support that enhancement has not been shown to be sufficiently
reliable for use at sentencing).
28
III
Having determined that the district court’s judgment must be reversed, we
now consider the scope of our remand. We agree with Mr. Padilla that the district
court should resentence him based on the record as it now stands.
“Although a remand for resentencing generally allows the district court to
conduct de novo review,” United States v. Forsythe, 437 F.3d 960, 963 (10th Cir.
2005), we have discretion to limit our remand by way of providing the district
court “instructions as [we] consider[] appropriate,” 18 U.S.C. § 3742(f)(1); see,
e.g., United States v. Thomas, 749 F.3d 1302, 1315–16 (10th Cir. 2014);
Forsythe, 437 F.3d at 963–64; United States v. Campbell, 372 F.3d 1179, 1183
(10th Cir. 2004).
We have before exercised this discretion to confine resentencing to the
existing record when three factors had been present: (1) “[t]he government bore
the burden to prove [a sentencing fact],” (2) “[the defendant] alerted the
government to the deficiency in its proof,” and (3) “the government made no
effort to cure the deficiency in its proof.” Thomas, 749 F.3d at 1315–16; see
Forsythe, 437 F.3d at 963 (limiting resentencing to the existing record because
“[a]lthough Defendant alerted the government to the deficiency in its evidence,
the government did not seek to cure the deficiency” (quoting Campbell, 372 F.3d
at 1183)). When these factors are present, we may deprive the government of “a
second bite at the apple,” so that remand “does not invite an open season for the
29
government to make the record that it failed to make in the first instance.”
Forsythe, 437 F.3d at 963–64 (quoting Campbell, 372 F.3d at 1183).
We conclude that the three Thomas factors are present here. First, the
government bore the burden to prove that Mr. Padilla possessed 17.38 grams of
methamphetamine and a firearm during his August 6 arrest. See, e.g., Aragon,
922 F.3d at 1108; Foy, 641 F.3d at 470; Campbell, 372 F.3d at 1183 (“Under
well-established Tenth Circuit precedent, the government has the burden of
proving sentence enhancements and increases.” (quoting Keifer, 198 F.3d at
800)).
Second, Mr. Padilla alerted the government—both in his written objection
to the PSR and at the sentencing hearing—that its proof as to the
methamphetamine and the firearm was deficient. See R., Vol. I, at 117 (“There is
no indication that the United States has reviewed this evidence [regarding the
methamphetamine and firearm], as it was not provided in discovery . . . .”); R.,
Vol. II, at 18 (stating that “none of th[e] evidence” relating to the
methamphetamine and the firearm “was brought into this case”); cf. Thomas, 749
F.3d at 1315 (concluding that the defendant alerted the government to its deficient
evidence regarding prior convictions mentioned in the PSR simply by
“demand[ing] proof” of those convictions); Campbell, 372 F.3d at 1183 & n.3
(holding that the defendant properly alerted the government to its deficient
sentencing evidence even though defendant did not do so until his sentencing
30
hearing; “the government could have sought a continuance at that point and failed
to do so”).
Finally, it is undisputed that, even if partially due to “inadvertent[] . . .
oversight,” 6 Aplee.’s Resp. Br. at 20, the government at no time made an effort to
introduce into evidence the August 6 police report or anything else to corroborate
Mr. Padilla’s alleged possession of 17.38 grams of methamphetamine and a
firearm.
Because the Thomas factors apply here, we “decline to give the government
a second opportunity to make the record that it failed to make the first time.”
Thomas, 749 F.3d at 1316. Therefore, on remand, the district court must
resentence Mr. Padilla based on the existing record.
6
Our conclusion that the Thomas factors apply here does not rest on a
determination that the government acted in bad faith or otherwise engaged in
misconduct. While in Campbell we limited our remand to the existing record
after noting that the government, once it was alerted to the deficiency in its
sentencing evidence, “made patently erroneous legal arguments as to why such
proof was not needed,” that statement was seemingly made to emphasize that “the
government did not seek to cure the deficiency.” 372 F.3d at 1183; see id.(“[T]he government did not seek to cure the deficiency, and instead made patently
erroneous legal arguments as to why such proof was not needed.” (emphasis
added)). Moreover, we did not suggest in either Forsythe or Thomas—each of
which applied Campbell’s reasoning—that our decision in those cases to limit
resentencing to the existing record was driven by an assessment that the
government had acted deceptively or otherwise in bad faith. See Thomas, 749
F.3d at 1315–16; Forsythe, 437 F.3d at 963–64.
31
IV
Because we conclude that the district court clearly erred in finding
sentencing facts by merely relying on a police report that was not in evidence, we
REVERSE the district court’s sentencing judgment and REMAND the case for
resentencing. Moreover, because Mr. Padilla made the government aware of the
deficiency in its sentencing evidence, and yet the government made no effort to
cure that deficiency, we limit our remand such that the district court must
resentence Mr. Padilla based on the record as it now stands.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
32