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U.S. v. McMeen

United States Court of Appeals, Sixth Circuit
Mar 13, 1995
49 F.3d 225 (6th Cir. 1995)

Summary

holding that the district court erred by relying on an unsupported conclusion in a presentence report as a basis for finding that sufficient evidence existed to support an enhancement

Summary of this case from Logan v. United States

Opinion

No. 94-5639.

Argued December 8, 1994.

Decided March 13, 1995.

Tony R. Arvin, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Memphis, TN, for plaintiff-appellee.

Charles R. Ray (argued and briefed), Ray Housch, Nashville, TN, for defendant-appellant.

Appeal from the United States District Court for the Western District of Tennessee.

Before: MERRITT, Chief Judge; NELSON and DAUGHTREY, Circuit Judges.


The defendant, Gordon McMeen, pled guilty to one count of making a false statement on a credit application in violation of 18 U.S.C. § 1014. At his sentencing hearing, the District Judge imposed a two-level enhancement for "more than minimal planning" as described by the United States Sentencing Guidelines in § 2F1.1(b)(2). The court below mistakenly based its decision upon an "Addendum" to the Presentence Report prepared by the Probation Officer which stated that the defendant participated in a larger credit card scheme in Florida. The defendant denied involvement in the Florida scheme. The Addendum and the Report did not cite any specific evidence linking the defendant with this scheme. It is merely the conclusion of the Probation Officer. The mere conclusion of the probation report is an insufficient basis for a finding that the evidence before the sentencing judge supports the proposition of fact asserted therein. Basic fairness requires that the evidence be identified and its reliability demonstrated. In a contested case, the position of the probation officer on a material matter should not be treated as evidence admitted in the case unless the probation officer takes the stand and offers testimony which may be cross-examined.

Upon an examination of the facts of the offense of conviction, it is clear that the Government did not establish that the defendant engaged in "more than minimal planning." In fact, the Government did not argue below that such an enhancement should be imposed. Counsel for the Government, Mr. Arvin, forthrightly conceded at oral argument that the District Court relied upon the Addendum, at least in major part, to enhance the defendant's sentence for more than minimal planning. The information concerning the larger offense in Florida does not have sufficient "indicia of reliability" as required by United States v. Silverman, 976 F.2d 1502 (6th Cir. 1992) (en banc) cert. denied, ___ U.S. ___, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993), to prove the defendant's involvement, and may not be used as the basis of an enhanced sentence. When a contested sentencing enhancement factor appears in the probation report and is not proved by the government at the hearing, the court must insure that the factor is otherwise proved by reliable evidence before using it to increase the sentence.

Accordingly, the District Court's imposition of a two-level enhancement for "more than minimal planning" is reversed and the case remanded for resentencing.


Summaries of

U.S. v. McMeen

United States Court of Appeals, Sixth Circuit
Mar 13, 1995
49 F.3d 225 (6th Cir. 1995)

holding that the district court erred by relying on an unsupported conclusion in a presentence report as a basis for finding that sufficient evidence existed to support an enhancement

Summary of this case from Logan v. United States

In McMeen, the defendant pled guilty to making a false statement on a credit card application in violation of 18 U.S.C. § 1014.

Summary of this case from Logan v. United States

relying on Leon and refusing to suppress contraband seized by police where the warrant that the defendant was arrested on was based on an unsworn and deficient affidavit, stating "[t]he exclusionary rule should be limited to those situations where its remedial objectives are best served, i.e., to deter illegal police conduct rather than the errors of judges, magistrates and their staff."

Summary of this case from United States v. Parrish
Case details for

U.S. v. McMeen

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. GORDON McMEEN…

Court:United States Court of Appeals, Sixth Circuit

Date published: Mar 13, 1995

Citations

49 F.3d 225 (6th Cir. 1995)

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