United States Sixth Circuit

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US v. McCarty, 09-3398

Conviction of defendant for knowingly stealing two cultural heritage objects and a within-Guidelines sentence of forty-six months' imprisonment, are affirmed where: 1) defendant's argument that the district court improperly considered hearsay evidence or his uncharged and unconvicted acts in crafting his sentence is rejected as the Guidelines explicitly contemplate such consideration and this court has held that the rules of evidence do not apply at sentencing, and that a district court may properly consider a defendant's uncharged and unconvicted conduct in determining his or her sentence; 2) the district court properly applied the ten-level enhancement of U.S.S.G. section 2B1.1(b)(1)(F); 3) the facts supported the district court's conclusion that "pecuniary gain" motivated defendant's thefts, so the district court properly applied the enhancement under U.S.S.G. section 2B1.5(b)(4); 3) although the district court's application of section 2B1.5(b)(5) was erroneous in finding that defendant "engaged in a pattern of misconduct involving cultural heritage resources," it constituted harmless error and resentencing is unnecessary; 4) district court's discussion demonstrates that it adequately considered and weighed defendant's mental health in crafting his sentence; and 5) defendant's ineffective assistance claims are unripe as the record on these claims is underdeveloped and defendant's appellate brief consists largely of unsubstantiated allegations without affidavits from defense counsel or himself to buttress his arguments.

Appellate Information

  • Argued 12/02/2010
  • Decided 12/28/2010
  • Published 12/28/2010

Judges

Court

  • United States Sixth Circuit

Counsel