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United States v. David P. Bowman, 926 F.2d 380, 4th Cir. (1991)
United States v. David P. Bowman, 926 F.2d 380, 4th Cir. (1991)
2d 380
N. George Metcalf, Asst. U.S. Atty., Richmond, Va., argued (Henry E. Hudson,
U.S. Atty., Richmond, Va., on brief), for plaintiff-appellee.
We affirm.
I.
6
The evidence presented at trial indicated that Bowman conspired with others to
distribute cocaine in and around the Richmond, Virginia, area. It was also
shown that during that conspiracy Bowman arranged to purchase approximately
one hundred pounds of marijuana from a government informant named Barry
Armstrong, a/k/a "B.A." Armstrong testified essentially the same at trial and at
sentencing. On the latter occasion he said that during the marijuana transaction
"one of the individuals standing at the end of that aisle opposite of Mr.
Bowman opened up his jacket and he had a gun sticking in the waist band of
his pants." This testimony was uncorroborated, but the trial judge found it
credible and relied on it in applying Sec. 2D1.1(b)(1).
7
The appellant contends that it was error for the trial court to give such reliance
to the uncorroborated testimony of Armstrong. He admits that such was not
"clearly erroneous," but cites no authority for his position.
The sentencing judge in the instant case carefully followed the above
procedure. The presentence report advised the appellant of the evidence he
would be faced with at sentencing. The testimony in question was given under
oath in open court where appellant had an opportunity to observe the witness,
cross examine him and present evidence in rebuttal of his testimony. We,
therefore, conclude that the trial judge properly considered the uncorroborated
testimony of Armstrong in finding that Bowman did possess a weapon during
the commission of the offense in question.3
II.
10
Bowman next claims that the firearm had an erroneous effect on his sentence
because he was not charged in the indictment with possession of a firearm or
with aiding or abetting another person to possess the same. He bases this
argument on the notice requirements of the Sixth Amendment to The United
States Constitution.4
11
No cases are cited in support of this position, and we have found none
11
No cases are cited in support of this position, and we have found none
interpreting the Sixth Amendment in such a context. The courts have, however,
traditionally evaluated claims such as that here advanced by the appellant
"under the broader protections of the Due Process Clause of The Fourteenth
Amendment," Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1000,
94 L.Ed.2d 40 (1987), and we shall do likewise here.
12
In the case of Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.
1337 (1949), the appellant complained about the unlimited nature of the
information that the court was permitted to consider at sentencing and urged,
among other things, that such a procedure denied him reasonable notice of the
charges against him in violation of his due process rights protected by the
Fourteenth Amendment. His argument was rejected by the United States
Supreme Court, which clearly recognized the difference between a criminal
defendant's constitutional rights at trial and at sentencing. The court had the
following to say:
13 the due process clause does provide these salutary and time-tested protections
That
where the question for consideration is the guilt of a defendant seems entirely clear
from the genesis and historical evolution of the clause.
14
15
Id. at 245-46, 69 S.Ct. at 1082 (citation and footnotes omitted). This does not
mean, however, that a defendant has no due process rights at sentencing. He
clearly has a right not to be sentenced on the basis of "misinformation of a
constitutional magnitude." United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct.
589, 591, 30 L.Ed.2d 592 (1972); United States v. Beaulieu, 893 F.2d 1177
(10th Cir.1990). "This right is protected by the requirement that the defendant
be given adequate notice of and an opportunity to rebut or explain information
that is used against him." United States v. Beaulieu, 893 F.2d 1177, 1181 (10th
Cir.1990).
16
The procedure employed at Bowman's sentencing has been described above and
will not be repeated. The same clearly afforded him all of his Sixth Amendment
notice rights, and his claim of error in that regard is without merit.
17
17
18
AFFIRMED.
It plays no part in this decision, but it is interesting to note that almost the
identical testimony was considered by the trial jury without objection