Criminal Defense of Immigrants

(F)  Challenge to Pre-Sentence Report.   If counsel contests the accuracy of the presentence report, the report standing alone should be considered an insufficient basis for determining whether a prior conviction triggers a particular enhancement.[1]  If counsel does not challenge a sentence enhancement found true in the PSR, the report has been held a sufficient basis on which to impose the enhancement.[2]  For example, where the defense does not specifically object to the PSR’s characterization of a prior conviction as a “drug trafficking offense,” the court may impose the 16-level enhancement. The defense’s general statements that a 16-level enhancement was not appropriate (without explaining why) or that the defendant was not guilty of the prior offense were insufficient.[3]

[177] See United States v. Potter, 895 F.2d 1231 (9th Cir. 1990) (question whether conviction qualifies as a “violent felony” under 18 U.S.C. § 924(e)(1)); United States v. Haslip, 160 F.3d 649 (10th Cir. 1998) (court decides whether sentence enhancement is proper by looking either to the statutory definition of the offense, or, if this is not possible, to the charging papers); United States v. Barney, 955 F.2d 635, 639 (10th Cir. 1992) (if prior conviction resulted from plea of guilty, court may examine charging paper to determine whether the defendant’s conduct fell within the Supreme Court’s definition of burglary: “To the extent that the district court considered convictions … not noticed and only mentioned in the presentence report, it erred.”); cf. United States v. Romero-Rendon, 198 F.3d 745 (9th Cir. 1999).

[178] United States v. Romero-Rendon, 198 F.3d 745, 748 (9th Cir. 1999); United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998).

[179] United States v. Arrieta-Buendia, 372 F.3d 953 (8th Cir. 2004), cert. denied, 543 U.S. 1057 (2005).