Post-Conviction Relief for Immigrants

The court cannot consider conduct of the defendant, for which no conviction resulted, that is shown only by an unverified arrest record.[355]  Facts concerning offenses not resulting in convictions contained in the arrest record that have been verified by other reliable sources, such as police reports, may be considered in sentencing.[356]

Hearsay evidence is generally admissible at sentencing, but a defendant has a due process right not to be sentenced on the basis of materially incorrect information.  “[S]ome minimal indicia of reliability [must] accompany a hearsay statement,”[357] and unreliable hearsay must be excluded.[358]  A new sentencing hearing will be ordered where the defendant can show the hearsay was (1) false or unreliable, and (2) demonstrably made the basis for the sentence.[359]

Hearsay may be considered by the court if it is sufficiently corroborated,[360] and if the defendant is given a sufficient opportunity to explain or rebut it.[361]

[355] U.S.S.G. § 4A1.3 p.s.; Williams v. United States, 112 S.Ct. 1112, 1117, 117 L.Ed.2d 341 (1992); United States v. Williams, 989 F.2d 1137, 1142 (11th Cir. 1993); United States v. Huang, 977 F.2d 540, 543 (11th Cir. 1992); United States v. Gammon, 961 F.2d 103, 108 (7th Cir. 1992).

[356] United States v. Terry, 930 F.2d 542 (7th Cir. 1991); United States v. Williams, 989 F.2d 1137, 1142 (11th Cir. 1993).

[357] See United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995); United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993), cert. denied, 114 S.Ct. 683 (1994).  

[358] United States v. Pinto, 48 F.3d 383, 389 (9th Cir.), cert. denied, 133 L. Ed. 2d 74, 116 S.Ct. 125 (1995); United States v. Ponce, 51 F.3d 820, 828 (9th Cir. 1995) (holding that hearsay statements must be corroborated by extrinsic evidence). 

[359] See United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995); United States v. Hanna, 49 F.3d 572 at 577 (9th Cir. 1994); United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986).

[360] Cafone, Vacation of Illegal Sentences, Chap. 46, in Criminal Defense Techniques § 46.03[5], n.50 (2003).

[361] United States v. Silverman, 976 F.2d 1502 (6th Cir. 1992); United States v. Frondle, 918 F.2d 62 (8th Cir. 1990), cert. denied, 111 S.Ct. 1400 (1991); cf. United States v. McCarthy, 961 F.2d 972 (1st Cir. 1992) (permissible to consider evidence from codefendant’s trial provided defendant given sufficient opportunity to challenge its accuracy).