Imposing Role Adjustment Without Specific Factual Findings Constitutes "Plain Error"

United States v. Ware, 577 F.3d 442 (2d Cir. 2009)

Ware was convicted of securities fraud and conspiracy to commit securities fraud, and was sentenced principally to 97 months imprisonment.  Proceeding pro se on appeal, Ware challenged, among other things, the district court's application of a 4 level role enhancement.  At sentencing, though, Ware had not challenged the district court's role enhancement.  Accordingly, his challenge to the sufficiency of findings was reviewable only for plain error.  And the Second Circuit found such error to have occurred.  Specifically, it "conclude[d] that the findings of the district court are not sufficient to reveal a factual basis for the court's conclusion that Ware's criminal activity involved five or more 'participants' or was 'otherwise extensive' within the meaning of the Guidelines 3B1.1(a).  Thus, the Second Circuit reversed Ware's sentence, and remanded either for supplemental factual findings or for resentencing.

The underlying facts relating to the district court's conclusions concerning the absence of an adequate factual basis for the role enhancement are not as important as the larger point -- to wit, that it is "plain error" for a district court to impose a role enhancement whatever the circumstances without adequate findings of fact.  This is consistent with the Second Circuit's general direction concerning how sentencing hearings should  be conducted in the post-Booker world.  The only question is this: Will "plain error" analysis be extended to any other factual findings upon which sentences are based?

Role Enhancements And RICO

United States v. Ivezaj, Docket No. 06-3112-cr-(L), et al., (2d Cir. June 11, 2009) (found here)

Ivezaj challenged his sentence on the ground that any aggravating role enhancement the district court applied should have been based on his conduct as alleged in the underlying predicate acts, rather than his role in the RICO enterprise as a whole.  The Second Circuit disagreed.

Specifically, it found that "a defendant's role adjustment is to be made on the basis of the defendant's role in the overall RICO enterprise."  More specifically, first, it found that analyzing a defendant's role in the overall RICO conspiracy "makes a good deal more sense than considering his role in each underlying predicate."  Second, it found that "the language of the Guidelines is clear that the requirement to look at each individual act in a RICO offense is only for purposes of establishing the base level offense, not for applying the Chapter Three adjustments."

A View Of Leader/Organizer

United States v. Adams, No. 06-1714-cr (L), et al., (2d Cir. March 23, 2009) (found here)

No surprise that the Second Circuit affirmed a 4 level leader/organizer enhancement here.  Nevertheless, it's always instructive to learn what constitutes a leader/organizer.  Here, the defendant "recruited people into the scheme, paid people for their participation in the scheme, developed the frozen fish pallet shipping method, and discussed going to Guyana to arrange a new shipment method after the September 23, 2003 seizure." 

Does the conduct of your client fall short of this description?  If so, perhaps a leader/organizer enhancement is inappropriate.

Role Determination Based On Cooperating Witness' Say-So

United States v. Scippio, No. 07-0480-cr (2d Cir. Jan. 15, 2009)

Scippio argued on appeal that: (1) he was entitled to a minor role adjustment; and (2) the district court had failed to account for disparities between his sentence and those of his co-defendants.

As to the first issue, the Second Circuit noted that "it is not enough that a defendant played a lesser role than his co-conspirators; his conduct must have been minor when compared to the average participant in such a crime."  Fair enough.  But, as evidence of Scippio's role, the Second Circuit found that no minor role was played because of what he did (delivering drugs to many different drug dealers and collecting proceeds of sales) and what a cooperating witness said about him (calling him a "manager").  I can understand the first point, but the word that a cooperating witness attaches to someone's role seems a thin basis upon which to determine role.  We'd need to be understand what the cooperating witness meant by "manager" before basing such a determination on his word selection.

As to the second issue, the Second Circuit disposed of it quickly, finding that the district court had, in fact, considered his co-defendants who had accepted responsibility for their offenses and had not threatened cooperating witnesses.

Procedural Error Where District Court Failed To Consider Role Enhancement

United States v. Collazo, No. 06-5236-cr (2d Cir. Jan. 3, 2008) (found here)

The Government appealed the district court's failure to apply a 3 level role enhancement pursuant to U.S.S.G. § 3B1.1(b).  The Second Circuit found that, although the Guidelines are no longer mandatory, courts must still calculate and consider the applicable Guidelines range.  In Collazo, the district court failed to do so when it didn't consider a 3 level manager/supervisor role enhancement.  And, in doing so, it committed procedural error, resulting in a reversal and remand for resentencing.

Short Involvement In Conspiracy Leads To Shorter Sentence

United States v. Hurtado, No. 06-CR-741 (JBW), 2007 WL 4322972 (E.D.N.Y. Dec. 4, 2007)

Hurtado's advisory Guidelines range was 46 to 57 months for his narcotics conspiracy.  But the court sentenced him to 18 months incarceration.  Several reasons relating to the purposes of punishment (deterrence, rehabilitation, etc.) were given for that significantly reduced sentence.  Most interestingly, however, the court considered "the extent of his criminal behavior," which amounted to only a "few hours."  Otherwise, Hurtado was "a very hard worker who owned a pedi cab business consisting of four pedicabs that he operated himself and leased to others.  He regularly sent more than $700 a month in child support to his ex-wife and he maintains a close relationship with his children." 

Just goes to show the tremendous impact that presenting facts relating to the 18 U.S.C. 3553(a) factors can have.

Hard Work Does Pay Off

United States v. Rincon, No. 07-CR-44-01, 2007 WL 4322979 (JBW) (E.D.N.Y. Dec. 6, 2007)

Rincon pled guilty to one count of possession with intent to distribute cocaine, an offense for which the Probation Department calculated an advisory Guidelines range of 18 to 24 months.  The court, however, granted a four-level downward adjustment because of Rincon's minimal role in the offense.  And then it explained its reasons for imposition of a non-Guidelines sentence: "the defendant had been a hard worker, both in the United States and in Columbia, until a recent accident rendered him unable to work.  The defendant maintains relationships with his children by three women, including one son who lived with him until the time of his arrest."  Interesting, Rincin had spent three weeks in jail and eleven month on home detention in his one bedroom apartment.  But we know that doesn't count towards satisfaction of the ultimate sentence imposed.

Major Relevant Conduct Decision By The Second Circuit

United States v. Juwa, Docket No. 06-2716-cr (2d Cir. Nov. 28, 2007) (found here)

Notwithstanding an advisory Guidelines range of 24-30 months for a guilty plea to one count of possession of child pornography, Juwa was sentenced to 90 months imprisonment.  In declaring its reasons for the upward departure, the district court cited the fact that Juwa had engaged in sexual conduct with a minor "on repeated occasions."  Yet Juwa had only indicated his intent to plead guilty to one count of felony sexual abuse in a parallel state case.  It was therefore unclear to the Second Circuit to what extent the district court impermissibly based its sentencing enhancement on unsubstantiatied charged conduct, thereby rendering the 90 month sentence procedurally unreasonable.  The Second Circuit ordered a reversal and remand.

We all know that a sentence can be based on all sorts of relevant conduct, including acquitted conduct and even uncharged conduct, so long as it is established by a preponderence of the evidence.  I've criticized here the use of acquitted conduct in sentencing.  And the Second Circuit in Juwa indicates its agreement that there are limits to the use of relevant conduct in determining and imposing sentence.  As the Second Circuit held:

[T]here are distinct limits to this discretion, and they include a defendant's due process right to be sentenced based on accurate information. . . . As the Third Circuit stated in United States v. Matthews . . . "[f]actual matters considered as a basis for sentence must have 'some minimal indicium of reliability beyond mere allegation.'

In Juwa's case, the problem was the there simply was "no evidence" to support the finding that he had abused more than one child "apart from the charges contained in the state indictment," which the Second Circuit described as "bare-bones" and "insufficient to support a factual underpinning for sentencing purposes."  The Second Circuit went on to hold that:

We therefore adhere to the prescription that at sentencing, an indictment or a charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed.  Some additional information, whether testimonial or documentary, is needed to provide evidentiary support for the charges and their underlying facts.

Juwa is a move in the right direction for acquitted conduct sentencing.  It provides some procedural safeguards, and broadly requires that unsubstantiated charged conduct must have some modicum of reliability before it can be used as a basis for an enhanced sentence.  I expect that defense attorneys in the Second Circuit (and elsewhere) will rely on Juwa to test and challenge courts when consideration of relevant conduct is at issue.

Very Low Threshold For Supervisory Role

United States v. Melia, No. 06-2054-cr, 2007 WL 3254416 (2d Cir. Nov. 5, 2007)

On appeal, Melia challenged the imposition of a 2 level enhancement pursuant to Section 3B1.1 for his supervisory role.  According to the Second Circuit, Melia exercised control over Athanasios Tsiropoulos, who extended usurious loans only with Melia's prior permission.  Triropolous "revealed his reliance on Melia as a manager in his statement that he 'was starving" until Melia gave him permission to put money on the streets."  And that's it.  Seems like pretty thin grounds for imposing a Section 3B1.1 role enhancement.  But it passed the Second Circuit because of the its deferential role in reviewing the facts upon which a district court bases determinations.

One Role Enhancement Per Customer, Please

United States v. Zavala, Nos. 05-7001-cr (L), 06-3228-cr (Con.), 2007 WL 3230741 (2d Cir. Nov. 1, 2007)

Section 3B1.1 of the Guidelines provides for 2 to 4 offense level enhancements based on a defendant's role in the offense.  In Zavala, the district court misinterpreted Section 3B1.1 and imposed simultaneous enhancements under subsections (a) and (c), for a total enhancement of 6 offense levels.  The Second Circuit reversed and remanded, finding that Section 3B1.1's "subsections are mutually exclusive as to any particular offense.  That is, if subsection (a) does not apply, then subsection (b) might; and if neither (a) nor (b) applies, then (c) might. . . .  the district court erred by applying simultaneous role-in-offense enhancements under subsections (a) and (c) for the same offense."

The district court judge -- Judge Sandra Feuerstein -- has been on the bench since 2003.  How could this mistake have been made?  Shouldn't someone have pulled to the judge aside and pointed out the obviousness of this error?