Permissive inference instruction does not impair fact-finding function of jury

SENTENCING United States v. Badilla, No. 03-2183, ___ F.3d ___ (10th Cir. Aug. 17, 2005)(New Mexico). On remand from United States Supreme Court, reaffirmation of conviction and sentence for intentionally possessing more than one hundred kilograms of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). HELD: (1) Permissive inference jury instruction advising jury that with respect to question of whether or not defendant knew controlled substance was present in vehicle, jury might infer that driver as sole occupant of vehicle had knowledge of controlled substance within it, did not impermissibly invade fact-finding function of jury. (2) Assuming that defendant’s sentence enhancement for obstruction of justice, based on judge-found fact (i.e., perjury at trial for denying knowledge of presence of drugs in vehicle), was constitutional Booker error that was both plain and obvious, defendant was not entitled to relief where he failed to show error affected substantial rights. Specifically, defendant failed to show that outcome of sentencing proceeding would have been different by either: (1) pointing to evidence in record that sentencing judge believed guidelines range was excessive and thus would have imposed different sentence; or (2) showing reasonable probability that jury applying reasonable doubt standard would not have found same material facts that judge found by preponderance of evidence. Read the opinion here.