Failure To Make Adequate Findings Concerning Role Adjustment Results In Reversal

United States v. Gomez, No. 09-4412-cr (2d Cir. Nov. 23, 2010) (found here)

Gomez appealed his 150 months sentence that followed his plea of guilty to an eight-count indictment charging a conspiracy to import and distribute heroin.  Among other things, Gomez argued that the district court erred in applying a role enhancement because it failed to make any particularized finding in open court regarding the enhancement.

The Second Circuit agreed -- Even finding that the district court had committed plain error (that is, procedural error).  In particular, the district court neither adopted the factual findings in the PSR nor made any specific factual findings to support the sentence enhancement -- two well-established ways that the district court could have supported its finding of a role enhancement.  The Second Circuit therefore remanded to the district court for it to either make specific factual findings supporting the role enhancement, or sentence Gomez without the role enhancement.

Note: Gomez must have entered an "open plea" -- that is, he likely had no plea agreement.  Otherwise, the government likely would have relied on the appellate waiver in the standard plea agreement to move to dismiss his appeal.  Or, perhaps, his appeal was viable because his sentence was outside of the range provided for in the appeal waiver clause of his plea agreement. 

Severe Personal Background (That Is, History And Characteristics) Results In Non-Guidelines Sentence

United States v. Goltson, No. 09-CR-461 (JBW), 2010 WL 4032399 (E.D.N.Y. Oct. 13, 2010)

Goltson pled guilty to a lesser-included offense within a single-count indictment charging him with conspiring to distribute and possess with intent to distribute cocaine base, for which he faced an advisory Guidelines range of imprisonment of between 57 and 71 months (inclusive of safety-valve and acceptance of responsibility adjustments).  Goltson was sentence to time served (18 months).  Why:

The offense of conspiracy to distribute and possess with intent to distribute is serious. As a child, Goltson was abused by his father, a heroin addict, and was raised in conditions of severe poverty. He suffers from depression and a severe learning disability, and he has received no education beyond middle school. Goltson has three children: two young daughters and a son in middle school. He remains close to his family and has been offered housing and employment by relatives. Because the defendant has already served eighteen months, a sentence of time served reflects the seriousness of the offense and will promote respect for the law and provide just punishment.

A Lesson In Why Post-Offense Rehabilitation Can Be So Important: Courts Don't Like To Disrupt Lives That Are On The Way To Full Rehabilitation

United States v. Nalley, No. 10-CR-224 (JBW), 2010 WL 3909468 (E.D.N.Y. Sept. 29, 2010)

Nalley pled guilty to conspiracy to distribute crack cocaine, for which he faced an advisory Guidelines range of imprisonment of between 70 and 87 months.  He did, however, qualify for the safety valve, and was sentenced to five years probation.  Why (other than the safety valve)?

The offense of possession of cocaine with intent to distribute is serious.  The defendant's character nevertheless appears to be good, and he has demonstrated a concerted effort to reform.  Since the defendant's last illegal conduct in September 2008, he has made great strides to better himself and provide for his family.  The defendant is employed in a union job, which allows him to earn a good living.  He is leading a useful life, providing for his two-month old son and paying child support for his eleven year old daughter who lives with her mother in a different home.  Probation allows him to continue to rehabilitate himself and support two families.

This isn't just about post-offense rehabilitation.  Rather, this is also about a court's unwillingness to disrupt a life that is on the road to full rehabilitation, notwithstanding the defendant's past offenses.

Never Underestimate The Power Of Contrition

United States v. Morales, No. 09-CR-617-03 (JBW), 2010 WL 3781017 (E.D.N.Y. Sept. 21, 2010)

Morales pled guilty to conspiring to import cocaine into the United States, for which he faced an advisory Guidelines range of imprisonment of between 37 and 46 months (inclusive of a four-point minimal role adjustment and a three-point acceptance of responsibilty adjustment).  The court sentenced him to five years probation.  Why?

The offense is a serious one.  Defendant appears to be contrite and has demonstrated that she understands the seriousness of the crime.  Defendant comes from a stable matriarchal family and has support from her extended family.  She has educated herself despite coming from deprived circumstances.  She was raised without a breadwinner in the family except for her mother, who was able to do only menial work because of her limited education.  Defendant has demonstrated her ability to hold down a job and had formerly been a productive member of society.

Excellent Work History And Supportive Family Form Basis Of Non-Guidelines Sentence For Narcotics Offender

United States v. Wynaar, No. 09-CR-656 (JBW), 2010 WL 3718912 (E.D.N.Y. Sept. 13, 2010)

Wynaar was convicted at trial of conspiring to import cocaine, conspiring to attempt to import cocaine, and conspiracy to attempt to possess cocaine, for which he faced an advisory Guidelines range of imprisonment of between 78 and 97 months.  The court, however, sentenced him to 60 months imprisonment.  Why?

The offenses of conviction were serious.  Defendant was convicted by a jury of conspiring and attempting to import large, distribution quantities of cocaine into the United States from Suriname.  He has exhibited on many occasions a disregard for the criminal law.  A significant period of incarceration is appropriate for purposes of achieving specific deterrence.  Defendant has, however, an excellent work history and a large, supportive family.  The high statutory minimum applicable in this case, plus the maximum term of supervised release, will adequately serve the purposes of sentencing.

Could these same grounds for a non-Guidelines sentence also apply in, say, a white-collar setting?

Second Circuit: Special Condition Of Supervised Release Prohibiting Wearing Of "Gang Colors" Too Broad

United States v. Green, Docket No. 08-5548-cr (2d Cir. Aug. 13, 2010) (found here)

Among other things, Green was sentenced (for his crack cocaine offense) to a term of supervised release that included the following condition: "And of course, as a special condition, you're not to associate with any member or associate of the Bloods street gang or any other criminal street gang."  The final written judgment stated as follows: "The defendant shall not associate with any member or associate of the Bloods street gang, or any other criminal street gang, in person, by mail (including email), or by telephone.  This shall include the wearing of colors, insignia, or obtaining tatoos or burn marks (including branding and scars) relative to these gangs."  It is the "color wearing" condition that the Second Circuit found problematic.

Specifically, the Second Circuit noted that "[d]ue process requires that the conditions of supervised release be sufficiently clear to 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'"  Further, a "condition of supervised release must provide the probationer with conditions that 'are sufficiently clear to inform him of what conduct will result in his being returned to prison,' and violates due process if 'men of common intelligence must necessarily guess at its meaning and differ as to its application.'"  With regard to the "color wearing" condition, the Second Circuit found that it:

is not statutorily defined and does not provide Green with sufficient notice of the prohibited conduct.  The range of possible gang colors is vast and indeterminate. . . .  Eliminating such a broad swath of clothing colors would make his daily choice of dress fraught with potential illegality.  People of ordinary intelligence would be unable to confidently comply with this condition.

Attempted Cooperation Can Have An Effect Even If Not Successful

United States v. De La Rosa, No. 09-CR-497 (JBW), 2010 WL 2816475 (E.D.N.Y. July 12, 2010)

De La Rosa pled guilty to importing cocaine into the United States, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to a year-and-a-day in prison.  Why? 

The importation of cocaine is a serious offense.  The defendant does not have a prior criminal history.  He is a young man of some intelligence who had the ambition to attend college for one semester, but was unable to continue due to a lack of funds.  He became involved in the importation of cocaine in order to obtain money to assist his mother, who lives on limited means in the Dominican Republic, as well as to be able to afford to continue his college education.  Subsequent to arrest, the defendant attempted to cooperate fully with the government, though the information he provided did not lead to an investigation.

United States v. De La Rosa, No. 09-CR-497 (JBW), 2010 WL 2816475 (E.D.N.Y. July 12, 2010)

De La Rosa pled guilty to importing cocaine into the United States, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to a year-and-a-day in prison.  Why? 

The importation of cocaine is a serious offense.  The defendant does not have a prior criminal history.  He is a young man of some intelligence who had the ambition to attend college for one semester, but was unable to continue due to a lack of funds.  He became involved in the importation of cocaine in order to obtain money to assist his mother, who lives on limited means in the Dominican Republic, as well as to be able to afford to continue his college education.  Subsequent to arrest, the defendant attempted to cooperate fully with the government, though the information he provided did not lead to an investigation.

United States v. De La Rosa, No. 09-CR-497 (JBW), 2010 WL 2816475 (E.D.N.Y. July 12, 2010)

De La Rosa pled guilty to importing cocaine into the United States, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to a year-and-a-day in prison.  Why? 

The importation of cocaine is a serious offense.  The defendant does not have a prior criminal history.  He is a young man of some intelligence who had the ambition to attend college for one semester, but was unable to continue due to a lack of funds.  He became involved in the importation of cocaine in order to obtain money to assist his mother, who lives on limited means in the Dominican Republic, as well as to be able to afford to continue his college education.  Subsequent to arrest, the defendant attempted to cooperate fully with the government, though the information he provided did not lead to an investigation.

United States v. De La Rosa, No. 09-CR-497 (JBW), 2010 WL 2816475 (E.D.N.Y. July 12, 2010)

De La Rosa pled guilty to importing cocaine into the United States, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to a year-and-a-day in prison.  Why? 

The importation of cocaine is a serious offense.  The defendant does not have a prior criminal history.  He is a young man of some intelligence who had the ambition to attend college for one semester, but was unable to continue due to a lack of funds.  He became involved in the importation of cocaine in order to obtain money to assist his mother, who lives on limited means in the Dominican Republic, as well as to be able to afford to continue his college education.  Subsequent to arrest, the defendant attempted to cooperate fully with the government, though the information he provided did not lead to an investigation.

Aberrational Conduct

United States v. Ortega, No. 09-CR-742-01 (JBW), 2010 WL 2541364 (E.D.N.Y. June 17, 2010)

Ortega pled guilty to having imported cocaine into the United States, for which he faced an advisory Guidelines range of imprisonment of between 30 and 37 months.  He was sentenced to a year-and-a-year in prison.   Why?  

This is a very serious offense involving the importation of drugs. Drugs are responsible for the destruction of many lives, especially those of young people. An incarceratory sentence is warranted. The defendant seems to be an individual of good character, in light of his supportive family and work history. The defendant's conduct seems to be aberrational, because at the time of the offense, he was under significant financial stress.

"Youth And Immaturity" (Even Though "Highly Culpable") As A Basis For A Non-Guidelines Sentence

United States v. Ginzburg, No. 09-CR-455 (S-2)-01 (JBW), 2010 WL 2540599 (E.D.N.Y. June 17, 2010)

Ginzburg (in companion cases to those described below) pled guilty to having conspired to possess with intent to distribute MDMA, for which he faced an advisory Guidelines range of imprisonment of between 97 and 121 months.  He was sentenced to 36 months in prison.   Why?  

Defendant comes from a good family with hard working parents. Defendant dropped out of school at a young age, did not take his education seriously, and has had prior brushes with the law.  Defendant has committed a very serious offense.  Defendant's participation in the instant offense involved supplying ecstasy to others for further distribution.  The conduct continued over a number of years.  The volume of sales was extensive.  Defendant is highly culpable.  Due to the defendant's youth and immaturity, sentencing within the guidelines would not be appropriate because it would be overly destructive.

United States v. Ginzburg, No. 09-CR-455 (S-2)-01 (JBW), 2010 WL 2540599 (E.D.N.Y. June 17, 2010)

Ginzburg (in companion cases to those described below) pled guilty to having conspired to possess with intent to distribute MDMA, for which he faced an advisory Guidelines range of imprisonment of between 97 and 121 months.  He was sentenced to 36 months in prison.   Why?  

Defendant comes from a good family with hard working parents. Defendant dropped out of school at a young age, did not take his education seriously, and has had prior brushes with the law.  Defendant has committed a very serious offense.  Defendant's participation in the instant offense involved supplying ecstasy to others for further distribution.  The conduct continued over a number of years.  The volume of sales was extensive.  Defendant is highly culpable.  Due to the defendant's youth and immaturity, sentencing within the guidelines would not be appropriate because it would be overly destructive.

Once Again, The Power Of Pre-Sentencing Rehabilitation

United States v. Gurshumov, No. 09-CR-455 (JBW), 2010 WL 2540694 (E.D.N.Y. June 17, 2010)

Gurshumov pled guilty to having conspired to possess with intent to distribute MDMA, for which he faced an advisory Guidelines range of imprisonment of between 18 and 20 months.  He was sentenced to a year-and-a-day.   Why?  "The defendant has strong family connections.  He has made great strides in attempting to educate himself in carpentry, plumbing and related trades, and towards rehabilitation through drug treatment."

United States v. Gurshumov, No. 09-CR-455 (JBW), 2010 WL 2540694 (E.D.N.Y. June 17, 2010)

Gurshumov pled guilty to having conspired to possess with intent to distribute MDMA, for which he faced an advisory Guidelines range of imprisonment of between 18 and 20 months.  He was sentenced to a year-and-a-day.   Why?  "The defendant has strong family connections.  He has made great strides in attempting to educate himself in carpentry, plumbing and related trades, and towards rehabilitation through drug treatment."