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United States v. Griffin

United States District Court, D. Oregon

May 22, 2018

UNITED STATES OF AMERICA,
v.
RYAN GERARD GRIFFIN, Defendant.

          OPINION AND ORDER

          Michael H. Simon, District Judge.

         The parties dispute the correct advisory sentencing guidelines range for Defendant Ryan Griffin under the United States Sentencing Guidelines (“U.S.S.G.”). This Opinion and Order resolves that dispute.

         STANDARDS

         A. United States Sentencing Guidelines

         Sentencing begins with a properly calculated advisory sentencing guidelines range. Gall v. United States, 552 U.S. 38, 39 (2007); United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008). The advisory sentencing guidelines serve as the initial benchmark in every sentencing proceeding, Gall, 552 U.S. at 39, and “reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives.” United States v. Rita, 551 U.S. 338, 350 (2007). The sentencing table in the guidelines presents a defendant's offense level in the vertical axis and a defendant's criminal history category in the horizontal axis. Both the offense level and the criminal history category must be correctly calculated, and the intersection yields the advisory guidelines range. After calculating the advisory guidelines range, the Court must consider that range, along with all of the other sentencing factors listed in 18 U.S.C. § 3553(a) before arriving at a final sentence.

         The U.S.S.G. directs that the court consider all “relevant conduct” when evaluating the nature and circumstances of the offense to determine the correct offense level. U.S.S.G. § 1B1.3. The U.S.S.G. defines “relevant conduct, ” in part, as follows:

Relevant Conduct (Factors that Determine the Guideline Range)
(a) Chapters Two (Offense Conduct) and Three (Adjustments).
Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) * * *
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
(2) * * *
(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and
(4) * * *

U.S.S.G. § 1B1.3(a) (emphasis added). In addition, the United States Sentencing Commission provides the following Commentary for this subsection: “Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.” U.S.S.G. §1B1.3, comment. (background) (emphasis added).

         B. Standard of Proof

         “District courts generally use the preponderance of the evidence standard of proof when finding facts at sentencing, such as the amount of loss caused by a fraud. The higher ‘clear and convincing' standard may apply, however, when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction.” United States v. Hymas, 780 F.3d 1285, 1289 (9th Cir. 2015) (emphasis added) (citations and quotation marks omitted).

         C. Evidence that May Be Considered

         The Federal Rules of Evidence do not apply in a sentencing proceeding. Fed.R.Evid. 1101(d)(3) (“These rules-except for those on privilege-do not apply to . . . sentencing”). As noted by the United States Supreme Court, “18 U.S.C. § 3661 . . . codifies the longstanding principle that sentencing courts have broad discretion to consider various kinds of information.” United States v. Watts, 519 U.S. 148, 151 (1997). That statute provides:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for ...

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