United States District Court, D. Alaska
THE
HONORABLE TIMOTHY M. BURGESS JUDGE
PROCEEDINGS:
ORDER FROM CHAMBERS
The
matter comes before the Court on the imposition of sentence
for Defendant Michael Saofaga. Soafaga pleaded guilty to
being a felon in possession of a firearm, a violation of 18
U.S.C. § 922(g)(1).[1]U.S. Probation, in its Final Presentence
Report (“PSR”), and the United States, in its
Sentencing Memorandum, allege that in the course of his
offense, Saofaga knowingly fled from multiple law enforcement
officers.[2] During the pursuit, Saofaga allegedly
attempted to discharge the prohibited firearm in the
direction of the pursuing officers (including a
K9).[3]
Based on this alleged conduct, the PSR asserts that Saofaga
is subject to a four-level increase pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B).[4] Additionally, because Saofaga allegedly
assaulted persons he knew or had reasonable cause to believe
were law enforcement officers during the course of the
offense, the PSR adds an additional six-level increase to
Saofaga's offense level pursuant to U.S.S.G. §
3A1.2(c)(1).[5] Taking these two enhancements into
account, Saofaga's resulting offense level would be 23
with a criminal history category of IV, correlating to a
sentencing range of 70 to 87 months.[6]
The
question before the Court is whether the United States must
prove the facts underlying each of the enhancements described
above-i.e. the assault and the victim-related
adjustment-by a preponderance of the evidence or by clear and
convincing evidence. In support of his position, Saofaga
cites to Ninth Circuit cases which stand for the proposition
that where applied enhancements have a disproportionate
impact on the sentence, the underlying facts must be proven
by clear and convincing evidence.[7] Saofaga argues that applying
both enhancements would add an aggregate of ten levels to his
base offense level and, therefore, each enhancement must be
proven by clear and convincing evidence.[8] Likewise, the
United States cites to a recent Ninth Circuit decision,
United States v. Valle, [9]to support its contention
that each enhancement must be proven by clear and convincing
evidence.[10] Both Parties agree that because together
the “enhancements substantially impact the guideline
sentence, then the government must prove those adjustments by
clear and convincing evidence rather than just a
preponderance.”[11]
“The
burden of proof for a factual finding underlying a sentencing
enhancement depends on the magnitude of the finding's
effect on the sentencing range.”[12] Generally, an
enhancement need only be supported by a preponderance of the
evidence.[13] However, in cases where there is
“an extremely disproportionate impact on the sentence,
” the United States must establish the applicable
enhancement by clear and convincing evidence.[14] Enhancements
are not always considered in isolation; the Ninth Circuit has
counseled that where “the combined impact of contested
sentencing enhancements is disproportionate relative to the
offense of conviction, the district court must apply the
clear and convincing evidence standard of
proof.”[15]
In this
case, two separate but related enhancements could apply to
affect Saofaga's sentencing guideline range. The Parties
argue that because the two enhancements, if applied together,
would result in a disproportionate impact, the Court must
find whether each enhancement is supported by clear and
convincing evidence. However, the Court is unaware of any
authority that maintains the higher standard of proof even if
the Court considers the lesser enhancement separately.
Where
the United States seeks to apply both enhancements, it must
prove that Saofaga committed an assault and he knew or had
reasonable cause to believe that a victim of his assault was
a police officer. Because this would result in a ten-level
increase to Saofaga's offense level, the Court may not
apply both enhancements unless the United States established
the underlying facts as to each enhancement by clear and
convincing evidence. Alternatively, the Court could find that
only the lesser enhancement applies: Saofaga committed an
assault. This singular enhancement, which would result in a
four-level increase to his offense level and would not have a
disproportionate impact on Saofaga's guideline range and,
therefore, may be proven by a preponderance of the
evidence.[16]
The
Parties only cite to cases that hold the clear and convincing
standard applies when multiple enhancements are actually
applied to a defendant's offense level and the totality
of which results in a disproportionate impact at sentencing.
None of the cases discuss whether the burden of proof changes
depending on which of the proposed enhancements are
considered for application. It seems untenable to determine
an overarching standard of proof by the universe of potential
enhancements in any given case, regardless of their ultimate
applicability.
Accordingly,
the Parties should address the following issues in their
supplemental sentencing memoranda:
1. Whether Saofaga committed an assault and that assault was
committed against a person he knew or had reasonable cause to
believe was a law enforcement officer based on clear and
convincing evidence; or, in the alternative,
2. Whether Saofaga committed an assault based on a
preponderance of the evidence. Entered at the direction of
the Honorable Timothy M. Burgess, United States District
Judge.
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Notes:
[1] Dkt. 32 (Minute Entry).