When Dorvee Does NOT Apply

United States v. Levy, No. 09-2965-cr (2d Cir. July 14, 2010) (found here)

Levy challenged (among other things) the substantive reasonableness of his 360 month sentence for producing and distributing child pornography.  On appeal, the Second Circuit found that his case did "not present the same issues" as in Dorvee, "specifically whether the defendant was likely sexually to assault a child."  Rather, "Levy actually molested a five-year-old girl, bragged about his conduct online, and thereafter not only failed to accept responsibility, but lied under oath about his culpability."  Thus, Levy could not benefit from Dorvee, in which the Second Circuit expressed concern about the reasonableness of child pornography sentences.

The Case of the 17 1/2 Year Old Drug Dealer Accomplice

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?

Can A Minor Receive An Enhancement For The Involvement Of Other Younger Minors In The Commission Of An Offense?

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.