NINTH CIRCUIT REQUIRES COURT TO CONSIDER "RELEVANT CONDUCT"
The government used a Confidential Informant to complete multiple sales of crack. The defendant faced three counts, but plead to only one.
The Presentence Report used as relevant conduct all the sales, and found that the defendant was a career offender. This bothered the court, who expressed concern about relevant conduct, and thought that the career offender determination was pumped up.
The government objected, and the court groused that "...You know what you can do with that. Take it to the appellate court...." Well, the government did.
The 9th Circuit agreed that the court, under the guidelines, had to consider the relevant conduct, and that Gall requires an accurate guideline calculation. The 9th Circuit (nudge, nudge) indicated (wink, wink) that the district court under Gall/Kimbrough could use all the factors and could be cognizant of the crack/powder disparity.
U.S. v. Grissom, No. 06-10688 (4-15-08).
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