First Circuit Affirms Sentences of 35 and 55 Years Imposed Due to Murder Proven by Preponderance Standard
In United States v. Avilés-Colón, the First Circuit yesterday held that crimes for which a defendant is not convicted – including murder – may be taken into account during sentencing when proven by a preponderance of the evidence.
While the defendants in Avilés-Colón were convicted of conspiracy to distribute and possess controlled substances and possession of firearms in furtherance of the conspiracy, the sentencing court employed a base offense level of forty-three after determining, under a preponderance of the evidence standard, that three murders had been committed in furtherance of the conspiracy. After considering § 3553, the court ultimately gave each defendant a sentence below the life imprisonment dictated by the guidelines, sentencing one defendant to 660 months in prison and the other to 420 months in prison.
On appeal, one defendant challenged the constitutionality of applying the guidelines’ murder cross-reference when the facts underlying the sentence were proven only by a preponderance of the evidence standard. The First Circuit swiftly rejected this “often raised argument” in one sentence, noting only that “even the heightened sentence does not rise above the statutory maximum.”
While enhanced sentences based on conduct for which a defendant was neither charged nor convicted are not uncommon, and the law here is entirely settled, this case shows how dramatic the potential effect of this principle can be.
[Note: Although the First Circuit states that the defendants were found guilty only of the two charges discussed above, the district court’s opinion indicates that one of the defendants was in fact convicted of murder. It is unclear why this is not discussed in the First Circuit’s opinion but is seemingly irrelevant in that the defendant who unquestionably was not convicted of murder was the one who brought the constitutional challenge.]