ADVERTISEMENTS

In an unpublished decision rendered on September 14, 2010, (United States v. Daniels, 10a0610n.06), the court has remanded a case for resentencing where the district court failed to make sufficient findings of fact to support a drug weight calculation.

Although the remand itself is not "new ground" for the court, the findings are interesting in that the court seemed to indicate that reliance on the PSI Report was not adequate to support a drug weight calculation finding. The Court in remanding noted "Even if the district court implicitly found that Daniels was responsible for at least 1.5 kilograms of cocaine, it did not provide any explanation for such a conclusion, apart from its reliance on the presentence report. The district court?s failure to make a particularized finding and to set forth the reasons for that finding is procedurally unreasonable."

This would seem to contradict the axiom in the Sixth Circuit in United States v. Lang, 333 F.3d 678, 681 (6th Cir.2003) that a "defendant cannot show that a PSR is inaccurate by simply denying the PSR's truth. Instead, beyond such a bare denial, he must produce some evidence that calls the reliability or correctness of the alleged facts into question. If a defendant meets this burden of production, the government must then convince the court that the PSR's facts are actually true. But the defendant gets no free ride: he must produce more than a bare denial, or the judge may rely entirely on the PSR.?

Although the Lang case is a burden of proof/production case, and the Daniels case is one of adequate findings, nonetheless, it is certainly worthy to note that a court may not apparently rely simply on the PSR recitation to meet procedural reasonableness standards.

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