Important Second Circuit Decision Concerning Guidelines Calculations

United States v. Cotto-Lopez, No. 08-5337-cr (2d Cir. June 1, 2010) (found here)

In this little summary opinion, the Second Circuit provides potentially enormous grist for sentencing appeals.

Cotto-Lopez pled guilty to conspiracy to distribute and possess with intent to distribute more than five kilos of cocaine.  At sentencing, he argued for a mitigating role adjustment for his minimal or minor role in the conspiracy.  After a short statement by the Government opposing the adjustment, the court stated simply that it "accept[ed] and adopt[ed] the factual recitations" and Guidelines calculations in the PSR, that it had considered the relevant statutory provisions and, finding "no reason to depart from the advisory sentencing guideline range," sentenced Cotto-Lopez to 87 months imprisonment.

The Second Circuit was not satisfied with the district court's work.  Specifically and "[d]espite the deference we accord to a district court's determinations pertaining to role adjustment," the Second Circuit still requires that district courts state their "findings with sufficient clarity to permit appellate review."  In Cotto-Lopez's case, "the district court made no explicit finding that Cotto-Lopez was or was not a minor or minimal participant despite [his] substantial argument for such a finding."  The Second Circuit reversed and remanded for resentencing ("after explicitly ruling on his argument for a mitigating role adjustment").

Most significantly for those with sentencing appeals, though, the Second Circuit went even further.  In particular, it stated that the district court's "adoption of the PSR's findings cannot save the failure to make explicit findings on the record, because the PSR's own finding regarding Cotto-Lopez's role itself consisted of a bare conclusion without analysis or explanation."

So, what does all this mean?  For appellate counsel, it may provide another basis for sentencing appeals -- to wit, a failure by a district court to provide an explanation for a Guidelines calculation (assuming no explanation for same appears in the PSR).  Presumably this principle could (does?) apply not only to role enhancements, but also to all other factors considered when calculating a defendant's advisory Guidelines offense level.

Comments

[Joseph Marchelewski]

It's a significant step in the right direction, I think.