DueProcess
When a defendant submits a sworn Declaration denying key elements of a weapons enhancement, can the defendant be enhanced without the Government meeting its initial burden?
QUESTIONS PRESENTED 1. When a defendant submits a sworn Declaration attached to her objections to a Presentence Report, which denies certain key required elements of the 2-level weapons enhancement under Sec. 2D1.1 (b)(1), and the Government has not responded with some evidence to refute such sworn statements as part of its initial burden to prove the weapons possession and temporal and spatial relationship, can the defendant be enhanced, consistent with due process, without the Government having met its initial burden? 2. Where a Presentence Investigation Report ("PSR") contains allegations of criminal conduct by a defendant which are stated to be "false" by the district judge at sentencing, but are not used in determining the sentence, is it error to include such untrue allegations in the PSR despite the court's finding that they are false, without either deletion of the allegations or notice to the Bureau of Prisons that such allegations are false?