In United States v. Restrepo, the Ninth Circuit, on a petition for rehearing, held that conduct of which the defendant was neither charged nor convicted could be taken into consideration at the defendant's sentencing hearing. The court reasoned that this interpretation is consistent with the clear intent of the United States Sentencing Commission and the Federal Sentencing Guidelines. The Ninth Circuit also held that when considering uncharged conduct at defendant's post-conviction sentencing hearing, a preponderance of the evidence standard is sufficient for due process concerns. When used to enhance a sentence, however, a more demanding interpretation of the standard is necessary. Finally, the court held that applying the Guidelines as amended June 15, 1988, and mandated by statute, did not violate the ex post facto clause, although defendant's conduct occurred prior to the amendment.
Matthew A. Goodin,
Criminal Procedure - United States v. Restrepo: Uncharged Conduct Now Considered in the Ninth Circuit Under Federal Sentencing Guidelines, 21 Golden Gate U. L. Rev.