11.18.2008

11th Cir. Identifies Split Re Whether Dist. Ct. Must Consider Each Enhancing Sentencing Factor on the Record

Per U.S. v. Santiago Moreno, 2008 WL 4787153 (11th Cir. Nov 4, 2008):

The [Sentencing] Guidelines Application Note 20 states "the court shall include consideration of the following factors" in determining whether the offense [manufacture of methamphetamines] created a substantial risk of harm to human life or the environment . . .

Although there is a circuit split on the issue, this Court has not published a case addressing whether the district court is obligated to explicitly consider each factor enumerated in [Sentencing Guidelines] Application Note 20. Application Note 20 does state that, in deciding whether to impose an enhancement under ยง 2D 1.1(b)(8)(B), the court "shall include consideration" of the four factors set forth in the Note. Id. Nevertheless, there is nothing in Application Note 20 that directs the court to do so on the record. See generally id. Because Application Note 20 does not provide the district court must consider on the record all four listed factors, and neither this Court nor the Supreme Court has held a district court is obligated to do so, the district court's failure to do so was not plain error.

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