United States v. Delarosa, No. 04 CR. 424-1 (RWS), 2006 WL 1148698 (S.D.N.Y. April 17, 2006)
A strange case if ever there was one.
Delarosa -- a minor -- plead guilty to conspiracy to distribute and possess with intent to distribute one kilogram of heroin. His co-conspirators were also minors. Those co-conspirator minors, however, were younger than Delarosa himself. At sentencing, the Government sought a two level upward adjustment pursuant to U.S.S.G. 3B1.4 for the use of a minor to commit a crime. Judge Sweet rejected the Government's argument. The background of this enhancement and Judge Sweet's reasoning on the question of whether a minor can receive an enhancement for the involvement of other minors in offense conduct -- a question that the Second Circuit has not yet addressed -- is interesting.
In 1994 Congress directed the Sentencing Commission to "promulgate guidelines or amend existing guidelines to provide that a defendant 21 years of age or older who has been convicted of an offense shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense. Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, Sec. 140008, 108 Stat. 2033. In promulgating Section 3B1.4 of the Guidelines, however, the Sentencing Commission eliminated the 21 year age requirement, which had the effect of making the enhancement applicable to defendants of ALL ages. The Sixth Circuit has held that the enhancement cannot apply to defendants under the age of 21 because the Sentencing Commission failed to comply with a specific Congressional directive. See United States v. Butler, 207 F.3d 839 (6th Cir. 2000). By contrast, the Fourth, Seventh and Tenth Circuits have concluded that the Sentencing Commission's elimination of the age requirement was a permissible interpretation of Congressional intent. See United States v. Murphy, 254 F.3d 511 (4th Cir. 2001); United States v. Ramsey, 237 F.3d 853 (7th Cir. 2001); United States v. Kravchuk, 335 F.3d 1147 (10th Cir. 2003).
Judge Sweet found the Sixth Circuit's reasoning to be "compelling" but ultimately decided that he did not have to choose sides because all of the foregoing cases involved defendants between the ages of 18 and 21 and all involved circumstances in which the defendants were older than the minors that they involved. In Delarosa, by contrast, the defendant was both a minor and was younger than the other minors involved in the offense conduct. Moreover, Judge Sweet found that "Congress never intended the enhancement to apply to a defendant who was younger than the minors he recruited" because the enhancement was intended to address the concern "that the existence of an age differential allows an older, adult party to influence a minor to engage in wrongful or dangerous behavior." Thus, Judge Sweet did not apply the two level enhancement pursuant to U.S.S.G. 3B1.4 for the involvement of a minor in the commission of the offense.