7th Circuit reverses 16-year drug sentence, finds district court relied on unsubstantiated allegations

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Finding federal prosecutors failed to present any evidence to support the allegation that Edward Gibbs confessed to conspiring to distribute 4.5 kilograms of crystal meth, the 7th Circuit Court of Appeals overturned his 16-plus-year sentence and remanded for resentencing at a lower offense level.

Gibbs was indicted on one count of conspiring to possess methamphetamine with the intent to distribute. The indictment alleged only that the conspiracy involved 500 grams or more of a substance containing meth.

Eventually, Gibbs pleaded guilty to the conspiracy charge. However, at the sentencing hearing, an assistant U.S. attorney asserted for the first time that the conspirators had distributed more than 4.5 kilograms. Gibbs refused to agree with that portion of the federal prosecutor’s account, maintaining he was only involved with the 500-gram quantity.

The assistant U.S. attorney made additional allegations at the sentencing hearing, asserting Gibbs had admitted to receiving more than 16 kilos of meth. This, according to court documents, was the first time in the 2½-year history of the case that the government said the defendant had confessed.

Gibbs objected and his attorney said he did not recall his client confessing. The federal attorney acknowledged she had not been assigned to the case when the alleged confession happened, telling the court she had spoken to the prosecutor previously handling the case and had received notes from a law enforcement officer. However, neither the former prosecutor nor the officer was called to testify.

The Southern Indiana District Court still based its sentence on Gibbs’ conspiring to distribute more than 4.5 kilograms of drugs, which set his base offense level at 38. Ultimately, the federal court found a total offense level of 37 and, with a sentencing range of 235 to 293 months, sentenced Gibbs to 200 months.

If Gibbs had been sentenced for conspiracy involving 2.5 kilograms, his adjusted offense level would have been 35, with a sentencing range of 188 to 235 months.

On appeal, the 7th Circuit panel found the district court’s use of the presentence investigation report did not meet the requirements of Rule 32 of the Federal Rules of Criminal Procedure.

“Without substantiation for the AUSA’s statements, the government failed to meet its burden to prove the uncharged conduct by a preponderance of the evidence. Because the PSR charged Gibbs with an unsupported drug quantity, Gibbs’s denial was enough to shift the burden of proof back to the prosecution,” Judge Diane Wood wrote for the court, citing United States v. Helding, 948 F.3d 864, 870 (7th Cir. 2020).

“At sentencing, the AUSA represented that the prosecution could call as a witness an official who was present for Gibbs’s alleged confession and who had kept notes supporting the uncharged drug quantity,” Wood continued. “But that official was never produced. Thus, in the end the only thing in the record was counsel’s statement. That falls short of proof.”

The case is United States of America v. Edward Gibbs, 20-3304.

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