Getting an Evidentiary Hearing at Sentencing

Another Booker remand from the First Circuit in United States v. Cabrera, No. 03-1890 (1st Cir. June 14, 2005) (not for publication).  However, I find more interesting the panel's comments as to the separate claim raised by appellant that the Court had abused its discretion in refusing to hold an evidentiary hearing at the time of sentencing regarding the issue of drug quantity. In ruling against appellant, the panel stated:

  [. . .] We do not agree: evidentiary hearings at sentencing are the exception, not the rule. A party seeking such a hearing "must carry a formidable burden of persuasion." United States v. McAndrews, 12 F.3d 273, 280 (1st Cir. 1993).

  In this case, the appellant could have put forth a different version of the disputed point (drug quantity) by affidavit. He did not do so. Given that omission, the court had considerable latitude to decide that the appellant had not satisfied his entry-level burden of showing that material facts were genuinely in dispute. "A district court need not grant an evidentiary hearing . . . merely because a defendant's hopes spring eternal or because a defendant wishes to mount a fishing expedition." Id.

Take note of this if you want an evidentiary hearing, for I'm certain the district judges have.