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United States v. Mustread - 42 F.3d 1097 (7th Cir. 1994)

Rule:

Where a court relies on a pre-sentence report (PSR) in sentencing, it is the defendant's task to show the trial judge that the facts contained in the PSR are inaccurate. 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. In some instances, however, the defendant may escape his burden of producing some evidence to contradict the PSR. This can occur when the PSR contains nothing but a naked or unsupported charge. That is because in response to a bare assertion by the PSR, a bare denial from the defendant may suffice to suggest inaccuracy.

Facts:

Defendant was convicted by the district court for his role in a marijuana distribution network. Defendant was given a sentence enhanced by aggravating factors for his role as a leader, organizer, manager, or supervisor of other participants in the conspiracy pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(a), and also for committing perjury during the course of his trial pursuant to U.S. Sentencing Guidelines Manual § 3C1.1. Defendant challenged his sentence and the pre-sentence report (PSR) relied upon by the district court. 

Issue:

(a) Did the PSR contain unsupported charges that were backed by no real evidence?

(b) Did sufficient evidence support the district court's finding of defendant's aggravated leadership role for sentence enhancement?

Answer:

(a) No (b) No

Conclusion:

(a) The court held that the district court was entitled to rely on the PSR because defendant did not produce any contrary evidence to counter its conclusions. 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;" (b) The court determined that, considering the whole record, defendant lacked the aggravating leadership role in the conspiracy necessary for a sentence enhancement pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(a) or (b). While defendant Mustread did distribute marijuana to others, that by itself, being a distributor, even a large distributor like Mustread, is not enough to support a § 3B1.1 offense level increase.  Rather, if defendant was a distributor, the defendant must also have been an organizer, leader, manager or supervisor of those to whom he distributed. If the record does not show that he had that status, if the defendant maintained no real guiding influence or authority over the purchasers, a § 3B1.1 adjustment is inappropriate. And the record does not show that Mustread had influence or authority over anybody to whom he distributed.

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