United States v. Gibbs, No. 20-3304 (7th Cir. 2022)
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Gibbs and others were indicted for conspiring to possess “500 grams or more of a substance” containing methamphetamine, 21 U.S.C 841(a)(1), (b)(1)(A), 846. Gibbs pleaded guilty. At the plea hearing, the Assistant U.S. Attorney (AUSA) first asserted that the conspirators had distributed more than 4.5 kilograms of methamphetamine. The PSR only listed .839 kilograms seized from his car and two .907-kilogram deals Gibbs tried to arrange. Based on the assumption that the conspiracy involved 4.5 kilograms or more of methamphetamine, and that the drug was in the pure “ice” form, the PSR calculated an advisory guidelines range of 235–293 months. If Gibbs had been sentenced for a conspiracy involving 2.5 kilograms of ice, his range would have been 188–235 months. Gibbs objected to the PSR’s use of the alleged 4.5 kilos. The AUSA did not provide any evidence. At Gibbs’s sentencing hearing, the AUSA raised new, allegations concerning Gibbs's statements during an unrecorded proffer session. Gibbs’s counsel objected, stating that he had been present at the proffer session and that he did not remember Gibbs making the alleged confession. The AUSA had not been present.
The district court overruled Gibbs’s objections and sentenced him to 200 months' imprisonment, The Seventh Circuit reversed. Although sentencing proceedings are more informal than trials, they are not “a free-for-all.” The requirements of Federal Rule of Criminal Procedure 32 were not followed; Gibbs was held responsible for far more methamphetamine than the record supported.
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