Police Report Insufficiently Reliable to Support Sentencing Enhancement

United States v. Padilla, 2019 WL 5692530 (10th Cir. November 4, 2019) (OK): The panel reverses an offense level enhancement for relevant conduct because a police report is an inherently unreliable document, and limits resentencing to the record as it was on appeal.

The district court relied on a police report not in evidence to establish that Padilla possessed methamphetamine and a gun. He objected in writing and at the sentencing hearing, arguing that the government had not presented any pertinent evidence to show the report was sufficiently reliable. The panel agreed. A district court must find that the "specific document at issue contains sufficient indicia of reliability to support the probable accuracy of the information it is being offered to establish." This finding can only be made if the document is in evidence. And only when it is part of the record can the district court "assess factors bearing on the document’s veracity such as the level of detail, internal consistency, and overall quality of that document." The document’s admission also is necessary for an appellate court to "properly evaluate the court’s determination of whether the document bears sufficient indicia of reliability for use at sentencing." Here, the panel concluded that the district court clearly erred in finding that Padilla possessed methamphetamine and a firearm by merely relying on the contents of a police report that had not been entered into evidence.

The panel also ordered that Padilla’s resentencing be based on the record as it now stands. Padilla alerted the government that its proof was deficient and the government did not introduce any evidence to corroborate the allegations. Thus, the panel reasoned, the government must be denied a second opportunity to make the record it failed to make the first time.