US v. McCarty, 09-3398

In affirming, the court rejected defendant's argument that the district court improperly considered hearsay evidence or his uncharged and unconvicted acts in crafting his sentence, as the Guidelines explicitly contemplate such consideration and this court has held that the rules of evidence do not apply at sentencing, and that a district court may properly consider a defendant's uncharged and unconvicted conduct in determining his or her sentence.  The court held that the district court properly applied the ten-level enhancement of U.S.S.G. section 2B1.1(b)(1)(F).  Further, the facts supported the district court's conclusion that "pecuniary gain" motivated defendant's thefts, so the district court properly applied the enhancement under U.S.S.G. section 2B1.5(b)(4).  Although the district court's application of section 2B1.5(b)(5) was erroneous in finding that defendant "engaged in a pattern of misconduct involving cultural heritage resources," the court held that it constituted harmless error and that resentencing is unnecessary.  In rejecting defendant's argument that the district court failed to consider defendant's mental health, the court held that the district court's discussion demonstrates that it adequately considered and weighed defendant's mental health in crafting his sentence.  Lastly, the court held that defendant's ineffective assistance claims are unripe as the record on these claims is underdeveloped and defendant's appellate brief consists largely of unsubstantiated allegations without affidavits from defense counsel or himself to buttress his arguments.

Related Link:

• Read the Sixth Circuit's Full Decision in US v. McCarty, 09-3398