United States v. Rose, Docket No. 05-5652-cr (2d Cir. July 20, 2007) (found here)
Rose plead guilty to a five-count indictment charging him with robbing a delivery truck and with kidnapping a wealthy Connecticut resident. At sentencing, the court imposed an upward adjustment under U.S.S.G. § 3B1.4 based on Rose's use of a minor in connection with his crimes. On appeal, Rose argued that the adjustment was inappropriate because the minor at issue was a seventeen-and-a-half year old drug dealer who willingly participated in the robbery and kidnapping, and was therefore not the type of minor who needed protection from exploitation.
Read the opinion yourself for the details of the offense. It is one crazy kidnapping story. And involves some pretty amateurish kidnapping techniques. But this blog is about sentencing. So, let's cut right to the sentencing issue.
On appeal, Rose argued that he should not have received the Section 3B1.4 enhancement because the minor at issue was a partner, not a subordinate, and that, in any event, he was "a 6' tall, muscular, [seventeen-and-a-half] year old adult appearing, gun toting, drug dealing criminal" who served as a willing partner in the robbery and kidnapping." Thus, Rose argued that this particular minor was not the type of minor for which Section 3B1.4 was implemented.
The Second Circuit disagreed. Specifically, it found that a "defendant's mere participation in a crimnial venture with a minor" may be insufficient for the enhancement, but that it does apply to a defendant who does more -- such as take affirmative acts to involve the minor, as Rose had done. Section 3B1.4 simply does not apply "only if the minor is vulnerable, child-like in appearance, or predisposed against crime." Thus, the Second Circuit affirmed the district court's enhancement because Rose "solicited, recruited, procured, trained, encouraged, and commanded" a minor. It went on to note that the "fact that the minor was a large, seventeen-and-a-half year old drug dealer who participated eagerly in the crimes does not make § 3B1.4 inapplicable."
The Second Circuit is more than likely correct. But that doesn't mean there is not (or should not) be a distinction between an genuinely innocent minor and a minor like the minor here. Also, shouldn't the characteristics of this minor have played a role in the Section 3553(a) analysis -- to wit, the nature and circumstances of the offense? Couldn't that minor's participation have been the basis of a Section 3553(a) adjustment to offset the Section 3B1.4 enhancement the court was obliged to impose in its Guidelines analysis?