What is the standard of review in the context of obstruction of justice enhancements?

MultiRegion, United States of America

The following excerpt is from United States v. Senese, 17-1041 (2nd Cir. 2018):

"Obstruction of justice enhancements are subject to a mixed standard of review." United States v. Ayers, 416 F.3d 131, 133 (2d Cir. 2005). We "review[] a district court's application of the Guidelines de novo, while factual determinations underlying a district court's Guidelines calculation[s] are reviewed for clear error." United States v. Cramer, 777 F.3d 597, 601 (2d Cir. 2015). However, a procedural error in a sentence may be harmless if "the record indicates clearly that the district court would have imposed the same sentence in any event, . . ." Id. (internal quotation marks omitted); see also United States v. Shuster, 331 F.3d 294, 296 (2d Cir. 2003) ("[G]uideline disputes that would not have affected the ultimate sentence need not be adjudicated on appeal.").

"As to the facts that support the application of a Guideline, the burden of proving such facts is on the government, [and] the standard for proving such facts is a preponderance of the evidence." United States v. Archer, 671 F.3d 149, 161 (2d Cir. 2011). Senese quotes (out of context) the district court's statement that "the burden can't be on the government." App'x 47. However, we need not decide whether the district court improperly shifted the burden of proof because it is clear from the record that any such error would have been harmless.

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