Whether the defendant should have the right to confront a witness whose testimony is offered to enhance the sentencing guidelines sentence for conduct that is not part of the underlying offense conduct

QUESTION PRESENTED The Sixth Amendment of the U.S. Constitution requires that the accused “shall enjoy the right ... to be confronted with the witnesses against him.” This right to confront witnesses in a prosecution has been limited by this Court as a right that only exists at the time of trial. Baber v. Page, 390 U.S. 719, 725 (1968). Pursuant to this Court’s ruling, the Eleventh Circuit as well as other circuits have allowed hearsay evidence from witnesses to be admitted at sentencing hearings without requiring the defendant to have the right to cross examine the witness. Under the federal sentencing guidelines, a defendant’s guideline range can be enhanced for specific conduct characteristics related to the offense. In this case the underlying conduct that led to the enhancement was unrelated to the offense itself. It involved an assault against a cooperating coconspirator, which took place after the Defendant’s guilty plea but before his sentencing, and as a result the sentencing court applied the guidelines enhancement for “obstructing or impeding the administration of justice” under §3C1.1 of the sentencing guidelines. At the sentencing the Government offered the victim’s testimony given at a separate proceeding before the same sentencing judge. The Defendant contested the incident and objected to the admission of the hearsay testimony because counsel for the Defendant was not present to cross examine the victim. The sentencing court enhanced the Defendant’s sentence, relying upon hearsay testimony. The question presented is whether the defendant should have the right to confront a witness whose testimony is offered to enhance the sentencing guidelines sentence for conduct that is not part of the underlying offense conduct. 1