MEMORANDUM OPINION
RICHARD J. DEON UNITED STATES DISTRICT JUDGE.
Defendant
Allan James ("James") pleaded guilty in this case
to one count of unlawfully possessing a firearm and
ammunition after being convicted of a crime punishable by
imprisonment for a term exceeding one year. See 18 U.S.C.
§ 922(g)(1). He currently awaits sentencing and has
objected to the Sentencing Guidelines range calculation that
appears in his Presentence Investigation Report
("PSR"). The calculation in the PSR is based, in
part, on conduct that was not alleged in James's
indictment and that is evidenced only by social media posts
and testimony about social media posts. See PSR ¶¶
10a-10g [Dkt. # 18]. Indeed, James's Guidelines range
quadrupled as a result of its inclusion. James argues that
this social media evidence is not sufficiently reliable to be
used as a basis for enhancing his Sentencing Guidelines
range. I agree, and his objection will therefore be
SUSTAINED.
BACKGROUND
The
United States ("the Government") indicted James in
October 2017 for a single count of violating 18 U.S.C. §
922(g)(1). See Indictment at 1 [Dkt. # 5]. The one-count
indictment refers in turn to a single firearm-a Glock 22 .40
caliber pistol-and alleges that James possessed the gun,
along with some .40 caliber ammunition, on or about July 12,
2017. See Id. James, as is his right, pleaded guilty
to. the conduct charged in the indictment without first
negotiating a plea deal with the Government. His Sentencing
Guidelines range, if calculated based on the conduct
described in the indictment, provides for twenty-one to
twenty-seven months of incarceration. See Draft PSR
¶¶ 6-10, 75 n.4 [Dkt. #17]. That Guidelines range
was reflected in the draft PSR prepared by the United States
Probation Office ("Probation"). See id.
After
reviewing the draft PSR, the Government argued that
James's Guidelines range should be significantly enhanced
as a result of certain social media posts, most of which were
recovered by executing search warrants for Facebook and
Snapchat accounts. In particular, the Government contended
that James's base offense level should be increased from
fourteen to twenty because these social media posts involved
a semiautomatic firearm capable of accepting a large capacity
magazine, see U.S.S.G. § 2.K2.1(a)(4)(B); that James
should be given an additional four-point enhancement because
the posts linked him to at least eight firearms,
[1] see
U.S.S.G. § 2K2.1(b)(1)(B); and finally that James should
be given another four-point enhancement because he trafficked
firearms, see U.S.S.G. § 2k2.1(b)(5). According to the
Government, images, videos, and messages posted to the social
media accounts between January 2016 and June 2017 show James
in possession of and, in some cases, trying to sell firearms.
Ultimately, Probation adopted the Government's position
in its final PSR, increasing James's Guidelines range to
eighty-four to one hundred and five months of incarceration.
See PSR ¶ 75.
James,
of course, strongly objects to this fourfold increase in his
Guidelines range. The parties have filed memoranda setting
forth their positions on the correct Guidelines range
calculation, and the Government has been given multiple
opportunities to identify all evidence that supports the
calculation in the final PSR.[2] James's objection is now ripe
for resolution.[3]
ANALYSIS'
Courts
are naturally wary when prosecutors seek substantial
sentencing enhancements based on conduct the same prosecutors
declined to charge. Indeed, judges have "note[d] . .,
continuing disagreement with the government's practice of
charging relatively minor crimes, while using . . .
'relevant [uncharged] conduct' ... to argue for
significantly enhanced terms of imprisonment."
United States v. Magee, 834 F.3d 30, 38 (1st Cir.
2016) (Torruella, J., concurring) (quoting U.S.S.G. §
lB1.3(a)); see United States v. Scheiblich, 346
F.Supp.3d 1076, 1082-85 (S.D. Ohio 2018) (citing cases in
which judges express skepticism about this practice). One
Court of Appeals has even gone so far as to expressly and
repeatedly "remind prosecutors 'not to indict
defendants on relatively minor offenses and then seek
enhancement sentences later by asserting that the defendant
has committed other more serious crimes for which, for
whatever reason, the defendant was not prosecuted and has not
been convicted."'[4] United States v. Spiller, 261
F.3d 683, 691 (7th Cir. 2001) (quoting United States v.
Bacallao, 149 F.3d 717, 721 (7th Cir. 1998)).
This
judicial skepticism is, of course, rooted in the
defendant's constitutionally protected rights. After all,
by asking "judges to rely on acquitted or uncharged
conduct to impose higher sentences than they otherwise would
impose," prosecutors adopt a strategy that "seems a
dubious infringement of the rights to due process and to a
jury trial." United States v. Bell, 808 F.3d
926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring with
denial of petition for rehearing en banc). To say the least,
"trial by sentencing enhancements" was not what
Congress had in mind when it blessed the federal Sentencing
Guidelines regime !
But
concerns about this practice extend beyond outright
violations of the Constitution. "Many judges and
commentators" who have questioned prosecutors' zeal
to punish defendants for conduct that has never resulted in a
conviction argue that the use of uncharged or "acquitted
conduct to increase a defendant's sentence undermines
respect for the law and the jury system." United
States v. Settles, 530 F.3d 920, 924 (D.C. Cir. 2008).
Our Circuit Court has specifically acknowledged that it
"understand[s] why defendants find it unfair for
district courts to rely on" such conduct at
sentencing-even while reiterating that "long-standing
precedents of the Supreme Court and [the Circuit] Court"
often allow it.[5] Id. at 923. And so it seems
obvious, as pointed out by Judge, now Justice, Kavanaugh,
that "district judges would" be wise "to heed
. . . concern[s]" about unfairness and, "in
appropriate cases," to "avoid basing any part of [a
defendant's] ultimate sentence on acquitted or uncharged
conduct." Bell, 808 F.3d at 928 (Kavanaugh, J.,
concurring with denial of petition for rehearing en banc);
see also Id. ("[F]ederal district judges have
power in individual cases to disclaim reliance on acquitted
or uncharged conduct" by "vary[ing] the sentence
downward to avoid basing any part of the ultimate sentence on
acquitted or uncharged conduct."); Settles, 530 F.3d at
924 ("[E]ven though district judges are not required to
discount acquitted conduct, the Booker-Rita-Kimbrough-Gall
line of cases may allow district judges to discount acquitted
conduct in particular cases ... . ." (citing
Kimbrough v. United States, 552 U.S. 85, 101 (2007))
(emphasis in original)).
Moreover,
the Government's requested sentence in this particular
case deserves considerable scrutiny because its use of
uncharged conduct is compounded by the weakness of the
evidence it offers to prove the conduct. To say the least,
social media posts:-with little else-can hardly
justify the quadrupling of a defendant's Guidelines
range. How so?
Courts,
and commentators, have explained why determining the accuracy
of information posted to social media is far from
straightforward and hence of questionable reliability.
Facebook records, for example, are "no more sufficient
to confirm the accuracy or reliability of information posted
to the website "than a postal receipt would be to attest
to the accuracy or reliability of the contents of the
enclosed mailed letter." United States v.
Browne, 834 F.3d 403, 411 (3d Cir. 2016). Indeed,
Facebook can actually make photographic evidence less useful
because it "'strips . . . metadata as the photograph
is uploaded' . . . rendering [its] date of creation
unknown." United States v. Farrad, 895 F.3d
859, 867 (6th Cir. 2018) (quoting testimony from a police
officer trained in social media investigations). Snapchat is
similarly problematic as some of its "key
function[s]" give users the ability to edit images
before sharing them. Agnieszka McPeak, Disappearing Data,
2018 Wis. L. REV, 17, 34 (2018) ("A key function within
Snapchat is the use of Filters, which allows users to add
multiple overlays to their images. Lenses also allow
'real-time special effects and sounds' to be added to
images." (footnote omitted)). Even determining who
posted a particular message, image, or video to Facebook or
Snapchat is difficult "because of the great ease with
which a social media account may be falsified or a legitimate
account may be accessed by an imposter." Browne, 834
F.3.d at 412. For these reasons, courts usually
"consider[] . . . extrinsic evidence to determine
whether the government [can meet] its authentication
burden" before permitting the introduction of social
media evidence against a defendant at trial. Id. at
413.
Not
surprisingly, the reliability standard applicable at
sentencings, see U.S.S.G. § 6A1.3(a), [6] counsels in favor
of requiring extrinsic corroboration before social media
evidence is used to resolve a dispute relevant to a
sentencing determination. Because social media posts may
contain false information and doctored images, and because
posters may be using hacked accounts or stolen identities,
uncorroborated social media posts will not often establish,
with any degree of reliability, that the information in the
posts is accurate or that the posts are what they purport to
be.
The
Government here has not offered sufficient extrinsic
corroboration to establish the necessary reliability of its
social media evidence. While it has pointed to reasons to
believe James had access to the Facebook and Snapchat
accounts from which it collected . evidence, see Declaration
of Special Agent Robert Mayo ("Mayo Decl.") at 22
[Dkt. #38-1 ] (reporting that photos found on James's
cell phone had been uploaded to the social media accounts),
account access, alone, cannot possibly justify the sentence
enhancements the ...