Sentence enhancement based on judge-found facts is plain error

SENTENCING/EVIDENCE United States v. Dazey, No. 03-6187, ___ F.3d ___(10th Cir. Apr. 13, 2005)(W.D. Oklahoma). Appeal of convictions and sentences for wire fraud, securities fraud, money laundering, and conspiracy. HELD: (1) Substantial sentence enhancement obtained through use of contested judge-found facts (i.e., $7 million loss, numbers of victims, obstruction) was plain error. Thus, where defendant showed reasonable likelihood that district court’s application of proper post-Booker standards (i.e., advisory sentencing guidelines and consideration of factors in 18 U.S.C. § 3553) might have produced significantly different sentence, case must be remanded for resentencing. (2) For handwritten notes to be admissible as recorded recollection under hearsay exception of Rule 803(5) of Federal Rules of Evidence, notes must be shown to have been made contemporaneously with event described and that witness’ memory was insufficient to permit full and accurate testimony. Where government established that notes were made contemporaneously with events, but never established witness’ inability to testify fully and accurately from memory, notes were admitted erroneously. However, erroneous admission was harmless because other evidence of guilt was so overwhelming that notes almost certainly did not affect outcome of trial. Read the opinion here.