Fifth Circuit Discusses Circuit Split Re: Burden of Persuasion With Regard to Exclusionary Provision in Note 12 to U.S.S.G. § 2D1.1; Joins Majority

Per United States v. Davis, 478 F.3d 266 (5th Cir. Jan. 31, 2007):

We are called upon to construe and apply note 12 to U.S.S.G. [U.S. Sentencing Guidelines] § 2D1.1, which states in pertinent part: ["]Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level .... In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense .... If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.["] . . .

As an initial matter, Davis argues that he has only the burden of production with regard to the exclusionary provision in the final paragraph of note 12 to section 2D1.1 of the Guidelines and that the burden of persuasion regarding the drug quantity remains with the Government. This court has not had occasion to decide this issue, [FN15] although in applying the iteration of note 12 in effect before 1995, we noted a split among the circuits. [FN16] Although the Commission expressly observed in stating its reasons for amending note 12 that "[d]isputes over the interpretation of this application note have produced much litigation," [FN17] interpretations of note 12 have diverged even after the amendments. At least one circuit has concluded that the defendant has only the burden of production, while other circuits have held that a defendant bears the burden of production and persuasion with respect to the exclusionary provision. [FN18]

FN15. Cf. United States v. Posada-Rios, 158 F.3d 832, 878-79 (5th Cir.1998) (under an earlier version of note 12, affirming the district court's drug calculation because there was "no evidence" that the defendant lacked intent or capability but not considering whether the defendant had a burden of production or persuasion).
FN16. United States v. Mora, 994 F.2d 1129, 1142 n. 15 (5th Cir.1993) (noting a circuit split on the burden of proof issue under an earlier version of note 12, but not deciding the question); see also United States v. Raven, 39 F.3d 428, 434-35 (3d Cir.1994) (the defendant bears only a burden of production regarding intent and capability); United States v. Tillman, 8 F.3d 17, 19 (11th Cir.1993) (Government bears the burden of persuasion); United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir.1992) (implicitly charging the Government with the burden of persuasion); United States v. Richardson, 939 F.2d 135, 142-43 (4th Cir.1991) (not explicitly discussing the burden of proof, but vacating the defendant's sentence because no evidence of ability in the record); United States v. Ruiz, 932 F.2d 1174, 1183-84 (7th Cir.1991) (the Government bears the burden of persuasion); United States v. Bradley, 917 F.2d 601, 605 (1st Cir.1990) (the Government bears the burden of persuasion); United States v. Smiley, 997 F.2d 475, 480-81 n. 7 (8th Cir.1993) (suggesting that the defendant bears the burden of persuasion); United States v. Barnes, 993 F.2d 680, 683-84 (9th Cir.1993) (defendant bears the burden of persuasion); United States v. Christian, 942 F.2d 363, 368 (6th Cir.1991) (defendant bears the burden of persuasion).

FN17. U.S.S.G. app. C, vol. 1, amend. 518 at 433 (1997).

FN18. Compare United States v. Hazut, 140 F.3d 187, 192 (2d Cir.1998) (the defendant bears only a burden of production) with United States v. Barnes, 244 F.3d 172, 177 & n. 6 (1st Cir.2001) (defendant bears a burden of persuasion); United States v. Munoz, 233 F.3d 410, 415 (6th Cir.2000) (same); United States v. Wash, 231 F.3d 366, 373 (7th Cir.2000) (same); United States v. Maldonado, No. 99-3334, 2000 WL 825717 at *3 (10th Cir. June 26, 2000) (same); Brown v. United States, 169 F.3d 531, 534-35 (8th Cir.1999) (same); United States v. Lopes-Montes, 165 F.3d 730, 731 (9th Cir.1999) (same).

The language of note 12 states explicitly that if "the defendant establishes" he or she had no intent to provide or purchase the agreed-upon quantity of the controlled substance, the district court shall exclude the amount "that the defendant establishes that the defendant did not intend to provide or purchase." We accordingly join a majority of the circuits and conclude that the defendant bears the burden of persuasion.