Local Rule LCrR 32.4: STATEMENT OF RELEVANT CONDUCT

LCrR 32.4 STATEMENT OF RELEVANT CONDUCT

(a) Submission by United States Attorney's Office. Upon acceptance of the plea or entry of a verdict of guilty, the United States Attorney's Office must submit to the United States Probation Office, and provide defendant with a copy of, a "Statement of Relevant Conduct." Such submission must include: (1) the loss and drug amounts the government believes are supportable by the evidence; (2) facts the government believes support any agreed-upon offense level computations in the plea agreement; and (3) facts warranting any non-agreed-upon Chapter 2 or 3 enhancements or reductions. When practicable, the government should reflect consultation with counsel for defendant and note therein whether defendant concurs or opposes such statement.

(b) Response by Defendant. Defendant may submit to the United States Probation Office a response or objection to the government's submission within seven (7) days. Where defendant elects not to respond initially, no inference is raised that defendant concurs with the government's proposed submission and defendant may wait until a Draft Presentence Report is issued to lodge objections. By filing an initial response within seven (7) days, defendant does not waive the right to later file objections to the Draft and Final PSRs.

Advisory Committee Notes This new Rule is intended to implement the second part of the Superseding Order, 3:14mc005, by providing USPO with a statement of relevant conduct promptly upon acceptance of the plea or entry of a verdict. This Rule does not, however, require defendant to concur in the statement, but instead provides the defendant with an opportunity to promptly respond to the government's proffer without waiving their procedural rights under Fed. R. Crim. P. 32, and without shifting the burden of proof from the government to prove sentencing enhancements. United States v. Mitchell, 825 F.3d 422, 425-26 (8th Cir. 2016) ("Application of sentencing enhancements must be supported by a preponderance of the evidence, and the government has the burden to prove the factual basis for an enhancement.").