Hearsay in Sentencing; Looming Ex Post Facto Issue on Choice of “Book”

United States v. Devon Roche, No. 04-1475 (July 11, 2005): The Court concluded that the confrontation clause, as most recently discussed in Crawford v. Washington, has no place at sentencing. When the government introduces hearsay at sentencing, the only limits are found in the due process clause and in the guidelines requirement that the information have "sufficient indicia of reliability to support its probable accuracy." U.S.S.G. sec. 6A1.3(a).

Mr. Roche also raised the argument that the district court had used the wrong edition of the guidelines, in violation of the ex post facto clause. In dictum, the Court stated, "It is doubtful that the ex post facto clause plays any role after Booker. . . [T]he Court in Booker demoted the Guidelines from rules to advice." The Court then quickly remarked that it did not need to resolve what effect Booker has on the ex post facto analysis, since it did not believe that the newer edition of the guidelines changed the calculations to Mr. Roche’s disadvantage.