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federal criminal appeal lawyer

As many of you may know, the government is typically only required to establish a “preponderance of evidence” standard when arguing for the application of an enhancement under the U.S. Sentencing Guidelines. However, a preponderance of evidence is not always the appropriate level of proof. When a sentencing factor “has an extremely disproportionate effect on the sentence relative to the offense of conviction, the government may have to prove the factor by clear and convincing evidence.” United States v. Felix, 561 F.3d 1036, 1045 (9th Cir. 2009). But in United States vs. Rigdill, No. 18-50128 (9th Cir. Oct. 17, 2019), this issue came up on federal criminal appeal.

Edward Ridgill was found guilty at trial of 26-counts of illegally distributing various controlled substances. At sentencing, the district court relied on “CURES” data to enhance Ridgill’s sentence by fourteen levels. (CURES stands for Controlled Substance Utilization Review and Evaluation System). In assessing the fourteen-level enhancement, the district court did so under the preponderance of evidence standard.

What happened in Rigdill?

On appeal before the Ninth Circuit, Ridgill argued that 1) the court erred in utilizing a preponderance of evidence standard is enhancing his offense level by 14 points, 2) part of the Standard Conditions of supervised release imposed by the district court were impermissibly vague, 3) the district court plainly erred by admitting challenged portions of testimony at trial; 4) the district court abused its discretion in rejecting Ridgill’s proposed modifications to the jury instructions, and 5) Ridgill’s 60 month sentence was procedurally unreasonable.

Relying on United States v. Jordan, 256 F.3d 922 (9th Cir. 2001), United States v. Felix, and United States v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000), the Ninth Circuit found that the district court erred by not using the higher burden of proof standard–clear and convincing evidence–in assessing the 14-level enhancement. The court discussed its previous holding in Jordan where it found a nine-point increase under the Guidelines “strongly support[ed] application of the clear and convincing evidence standard.” However, Ridgill did not object to this issue before the district court so the Ninth Circuit reviewed for plain error. Nonetheless, the Ninth Circuit concluded that the court’s error was plain and affected Ridgill’s substantial rights. As such, the appellate court vacated Ridgill’s sentence and remanded to the district court to assess the evidence utilizing the proper standard.

Both parties agreed that a portion of the Standard Conditions of Ridgill’s supervised release were unconstitutionally vague. The Ninth Circuit remanded to the district court to modify the conditions consistent with its opinion in United States v. Evans, 883 F.3d 1154 (9th Cir. 2018). The Ninth Circuit concluded that it need not determine whether Ridgall’s sentence was substantially reasonable given its remand for resentencing. Lastly, the court rejected Ridgill’s remaining arguments for appeal.

What Does All this Mean? How can my Loved One Use this on their Federal Criminal Appeal?

Most sentencing enhancements require the addition of a few additional levels (for example an enhancement under U.S.S.G. 2D1.1(b)(1) requires a two-level enhancement for possession of a dangerous weapon). Under those circumstances, a district court is permitted to find the enhancement applicable under a preponderance of the evidence standard. However, when an enhancement dramatically increases a sentence, a higher burden of proof is imposed on the government. In those cases, the government must establish clear and convincing evidence that the enhancement applies. As seen in Rigdill, this standard of proof can be overlooked by judges and attorneys at sentencing, which can have a dramatic effect on a defendant’s sentence.

About the Law Office of Jeremy Gordon

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. 

United States v. Bethea, Seventh Circuit, No. 17-3468, 2018 WL 1959638

Bethea was charged with using fraudulently obtained credit cards to purchase merchandise at retailers. He had a combined guilty plea and sentencing hearing. The judge was in his courtroom in Madison, WI. Bethea was in Milwaukee because of his health issues and limited mobility. The judge sentenced Bethea to 21 months imprisonment, which is at the bottom of his guideline range. Bethea appealed on the basis that his plea via video conference could not be taken.

The court noted that Federal Rule of Criminal Procedure 43 governs that “the defendant must be present at … the initial appearance, the initial arraignment, and the plea.” The court found while there are exceptions to this, none of them applied here. The court also found that while other circuit courts haven’t answered this question, four circuit courts have held that Rule 43 requires the judge and the defendant to be there. Further, they pointed out that several circuits have indicated that there were intangible benefits to the judge and defendant being physically in the courtroom including the Sixth, Fourth, Third, Seventh, and the Tenth Circuits, which hold that this is per se error, meaning that automatic reversal should be granted.

The Seventh Circuit Vacated the Judgment of the District Court and remanded the case. No. 17-3468, 2018 WL 1959638

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.