U.S.S.G. § 6A1.3

Resolution of Disputed Factors

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§6A1.3. Resolution of Disputed Factors (Policy Statement)

(a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any dispute concerning a factor important to the sentencing determination, the court may 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.

(b) The court shall resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(i), Fed. R. Crim. P.

Commentary

Although lengthy sentencing hearings seldom should be necessary, disputes about sentencing factors must be resolved with care. When a dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information. Written statements of counsel or affidavits of witnesses may be adequate under many circumstances. See, e.g., United States v. Ibanez, 924 F.2d 427 (2d Cir. 1991). An evidentiary hearing may sometimes be the only reliable way to resolve disputed issues. See, e.g., United States v. Jimenez Martinez, 83 F.3d 488, 494–95 (1st Cir. 1996) (finding error in district court's denial of defendant's motion for evidentiary hearing given questionable reliability of affidavit on which the district court relied at sentencing); United States v. Roberts, 14 F.3d 502, 521(10th Cir. 1993) (remanding because district court did not hold evidentiary hearing to address defendants' objections to drug quantity determination or make requisite findings of fact regarding drug quantity); see also, United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980). The sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law.

In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. See 18 U.S.C. § 3661; Witte v. United States, 515 U.S. 389, 397–401 (1995) (noting that sentencing courts have traditionally considered wide range of information without the procedural protections of a criminal trial, including information concerning uncharged criminal conduct, in sentencing a defendant within the range authorized by statute); Nichols v. United States, 511 U.S. 738, 747–48 (1994) (noting that district courts have traditionally considered defendant's prior criminal conduct even when the conduct did not result in a conviction). Any information may be considered, so long as it has sufficient indicia of reliability to support its probable accuracy. Witte, 515 U.S. at 399–401; Nichols, 511 U.S. at 748; United States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990), cert. denied, 500 U.S. 927 (1991); United States v. Beaulieu, 893 F.2d 1177 (10th Cir.), cert. denied, 497 U.S. 1038 (1990). Reliable hearsay evidence may be considered. United States v. Petty, 982 F.2d 1365 (9th Cir. 1993), cert. denied, 510 U.S. 1040 (1994); United States v. Sciarrino, 884 F.2d 95 (3d Cir.), cert. denied, 493 U.S. 997 (1989). Out-of-court declarations by an unidentified informant may be considered where there is good cause for the non-disclosure of the informant's identity and there is sufficient corroboration by other means. United States v. Rogers, 1 F.3d 341 (5th Cir. 1993); see also United States v. Young, 981 F.2d 180 (5th Cir.), cert. denied, 508 U.S. 980 (1993); United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978), cert. denied, 444 U.S. 1073 (1980). Unreliable allegations shall not be considered. United States v. Ortiz, 993 F.2d 204 (10th Cir. 1993).

The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case. Acquitted conduct, however, is not relevant conduct for purposes of determining the guideline range. See §1B1.3(c) (Relevant Conduct). Nonetheless, nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. § 3661.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (amendment 294); November 1, 1991 (amendment 387); November 1, 1997 (amendment 574); November 1, 1998 (amendment 586); November 1, 2004 (amendment 674); November 1, 2024 (amendment 826).

Notes of Decisions

Cited in 1,512 cases (158 in the last 5 years), 1989–2026 · leading case: United States v. Christman, 509 F.3d 299 (6th Cir. 2007).

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United States v. Christman, 509 F.3d 299 (6th Cir. 2007). · cites it 24× “Here, the district *301 court's admitted reliance upon the ex parte communications, consisting of the probation and pretrial services officers' subjective impressions that defendant had acted on his pedophilia and in fact had molested children, not only deprived defendant of his…”

United States v. Booker, 543 U.S. 220 (2004). · cites it 2× “2003) (USSG) (setting the base offense level for the crime of possession with intent to sell 50 to 150 grams of cocaine base at 32).”

United States v. Bryant, 571 F.3d 147 (1st Cir. 2009). · cites it 8× “U.S.S.G. § 6A1.3 states that when a court resolves "any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence .”

United States v. James B. Simmons, United States of Am. v. Charles H. Bowers, 964 F.2d 763 (8th Cir. 1992). · cites it 7× “When a reasonable dispute exists about any factor important to the sentencing determination, the court must insure that the parties have an adequate opportunity to present relevant information.”

United States v. Anthony M. Miele John Jay McElfresh Charles J. Walters Patrick T. Reinstadtler James F. Foster, Anthony M. Miele, 989 F.2d 659 (3rd Cir. 1993). · cites it 7× “numerous inconsistencies in the record, the fact that the source of most of the critical evidence was an addict-informant with an impaired memory, and the lack of any findings by the district court other than a single con-clusory finding as to drug quantity, we find that the…”

United States v. Scott Lee Young, United States of Am. v. Donald Charles Allman, United States of Am. v. Michael Allen Crow, 981 F.2d 180 (5th Cir. 1993). · cites it 9× “” U.S.S.G. § 6A1.3. Obviously, the district court has significant discretion in evaluating reliability.”

United States v. James Michael Wise, 976 F.2d 393 (8th Cir. 1992). · cites it 6× “Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.”

United States v. David Armstrong, 920 F.3d 395 (6th Cir. 2019). · cites it 5× “See U.S.S.G. § 6A1.3 cmt. (2016). And on top of that, we review those reliability decisions under the highly deferential, clearly erroneous standard.”

United States v. Kelly J. Jackson, 32 F.3d 1101 (7th Cir. 1994). · cites it 9× “2d 123 (1991) (citing U.S.S.G. § 6A1.3, commentary). Thus, to ensure accuracy in the sentencing process as dictated by the Guidelines procedural 'formality is unavoidable.”

United States v. Richard Young Alfaro, 919 F.2d 962 (5th Cir. 1990). · cites it 6× “Often this will require a more formal sentencing procedure than was required before the sentencing guidelines, as recognized by the commentary to Sentencing Guidelines § 6A1.3: In current practice, factors relevant to sentencing are often determined in an informal fashion.”

United States v. Sean Michael Grier, 475 F.3d 556 (3rd Cir. 2007). · cites it 2× “In his brief, Grier argues that we should use the doctrine of constitutional avoidance and read § 3553(a) or, alternatively, U.S.S.G. § 6A1.3(a) to require proof beyond a reasonable doubt.”

United States v. Joshua Brent Gray, United States of Am. v. Terrence A. Askew, 491 F.3d 138 (4th Cir. 2007). · cites it 5× “32(e)(2), (f)(1), (i)(l)(A), (i)(l)(C), (i)(l)(D); see also U.S.S.G. § 6A1.3 (2006). The Sentencing Guidelines reinforce these protections requiring the district court to “resolve with care” any disputed issues of fact which may bear on sentencing.”

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— U.S.S.G. §6A1.3(a) — 909 cases

United States v. Bryant, 571 F.3d 147 (1st Cir. 2009). “U.S.S.G. § 6A1.3 states that when a court resolves "any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence .”

United States v. Sean Michael Grier, 475 F.3d 556 (3rd Cir. 2007). “In his brief, Grier argues that we should use the doctrine of constitutional avoidance and read § 3553(a) or, alternatively, U.S.S.G. § 6A1.3(a) to require proof beyond a reasonable doubt.”

United States v. Juan Ortega-Calderon, 814 F.3d 757 (5th Cir. 2016).

United States v. Alejandro Umana, 750 F.3d 320 (4th Cir. 2014).

United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009).

— U.S.S.G. §6A1.3(b) — 62 cases

United States v. Williams, 374 F.3d 941 (10th Cir. 2004).

United States v. Jason Oma Milam, United States of Am. v. Dewayne Lee Milam, 443 F.3d 382 (4th Cir. 2006).

United States v. Ricky Ramirez, Jose Garcia, & Jose Cantu-Cantu, United States of Am. v. Alfredo Garcia, 963 F.2d 693 (5th Cir. 1992).

United States v. John Westine, Jr., 883 F.3d 659 (6th Cir. 2018).

United States v. Raul Mercado-Moreno, 869 F.3d 942 (9th Cir. 2017).

— U.S.S.G. §6A1.3(b)(2004) — 1 case

United States v. Mares, 402 F.3d 511 (5th Cir. 2005).

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