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. 

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.

Guest Blogger: Paula Notari On Sentencing And The Crack/Powder Ratio

I've received the following report from Paula Notari ([email protected]) on a recent sentencing she handled before the Honorable Dora L. Irizarry in the United States District Court for the Eastern District of New York in United States v. Dunbar, No. 08-CR-187 (E.D.N.Y. April 21, 2010).  In sum and notwithstanding pending legislation to change the 100:1 crack/powder ratio to 20:1, some judges continue to apply a 1:1 ratio.  Here's the report:

Dunbar was charged in a crack cocaine conspiracy, and pled guilty to a five-year mandatory minimum count.  Based in part on a prior New York Youthful Offender adjudication, Judge Irizarry classified Dunbar as a Career Offender, and determined that his advisory Guidelines range of imprisonment was 188 to 235 months.  Judge Irizarry, however, sentenced Dunbar to 60 months imprisonment based on a 1:1 crack/powder ration.  More particularly, applying this ration (and rejecting the Probation Department's application of a 20:1 ratio), Judge Irizarry concluded that Dunbar's advisory Guidelines range was 30 to 37 months, but was obliged to sentence him to the minimum mandatory five-year term of imprisonment.

Failure To Explain Reason For Sentence Imposed May Be Reversible Error

United States v. Mercado, No. 09-1283-cr (2d Cir. March 25, 2010) (found here)

Among other things, Mercado argued that the district court erred in sentencing him for a supervised release violation because it failed to articulate its reasons for the sentence imposed.  And the Second Circuit agreed -- sort-of.

Specifically, it found that "the district court, in imposing a one-year term of imprisonment, did not explain its reasons for doing so except to note that this was the term recommended by the Probation Office."  However, as the Second Circuit explained in United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (per curium):

Establishing that a sentencing court failed to fulfil the "open court" requirement is not . . . tantamount to plain error. . . .  [F]ailure to satisfy the open court requirement of § 3553(c) . . . does not constitute "plain error" if the district court relies on the PSR, and the factual findings in the PSR are adequate to support the sentence.

The rule applies equally to sentencing for violations of supervised release.

The lesson to learn is to examine sentencing transcripts carefully on appeal.  If no mention is made of the reason for the sentence imposed, it might well prove fertile ground for appeal.

What Judges Really Think

United States v. Fishman, 631 F. Supp. 2d 399 (S.D.N.Y. 2009)

Fishman was a partner at law firm Latham & Watkins, and pled guilty to a multi-year scheme in which committed dozens if not hundreds of acts of dishonesty and fraud -- an offense made worse by the fact that he was an attorney and therefore an officer of the Court. 

But Fishman had some things going for him -- significant charitable and civic activities, particularly his work at the Sinai Schools.  And based on that work, Fishman received a sentence of 15 months imprisonment, even though his advisory Guidelines range was 27 to 33 months.

What's most interesting in the case, though, is views expressed by the Court when confronting offenders who present so much positive information in such a persuasive manner.  Indeed, the Court's detailed explanation shines a light on what judges might really think and, thus, gives guidance to defense lawyers in preparing sentencing memoranda.  It's worth reading in its entirety.  Here are some excerpts:

As a point of departure, the Court notes that Fishman's presentation, though stressing points that argue for uniqueness, distinction and individual consideration, in fact is not uncommon. The Court has heard much of the argument in echoes from similar pleas for mercy frequently urged in this courthouse, indeed in courtrooms across the country. In particular, Fishman's argument falls into a pattern advanced by a subset of the white collar criminal. This category encompasses a select class: distinguished, reputable, highly esteemed model citizens such as Fishman. The list of their achievements and virtues is long and impressive. At home, they are good family men and women, caring spouses, loving parents, loyal and reliable to friends. At work, they are looked up to as outstanding professionals and business partners. To their community's charities and public causes they are generous patrons and sponsors. And as worshipers they are devout, often rising as leaders of the congregation.

Yet, for all of their outward rectitude, these otherwise good people suffer a fatal flaw: they sometimes lead a double life. Somewhere at the core, in a distorted dimension of the soul, the public image they present is as false as the lies they tell to sustain the appearances of an exemplary life. And somehow, for reasons that always defy reason, they fall into crime, doing wrongful deeds that seem aberrational, selfish and greedy acts that, when caught, they claim are entirely out of character with their otherwise law-abiding lives.

Typically, these offenders appear at their sentencing well-represented and well-prepared, offering ample reasons why the Court should exercise exceptional discretion and show maximum leniency. A key aspect of the evidence proffered in mitigation consists of medical records and psychological evaluations attesting that the defendant's criminal conduct, so at odds with an upright character, was driven by some recently diagnosed mental disorder, or ungovernable impulse, other unknown inner or outer demon he could not conquer that made him do it. An outpouring of sympathy and support from relatives, friends, business colleagues, community leaders, and even some of the victims, accompanies the presentation. The beneficiaries of the defendant's charitable work, in some cases intensified since his arrest, testify about his devotion of good will and donation of resources, and underscore the loss they and the larger community would suffer if deprived of the defendant's invaluable contributions to their public services. And of course, the defendant rises in the courtroom to convey profound, personal apologies for all the sorrow he has caused to all the people with whom he broke faith and hurt and betrayed and shamed.

As it ends, the presentation comes to several conclusions it urges the Court to adopt: that the defendant has already shown full rehabilitation and earned redemption; that there is absolutely no likelihood of recidivism from this defendant and thus no threat of future harm to society; that no further need exists to punish the defendant because he has been wracked long enough by shame, by ruin of his family and personal life, by loss of his primary means to earn a livelihood. The purposes of sentencing thus having been satisfied, ergo: a sentence of any incarceration would serve little or no useful purpose; probation would suffice.

Let me stress at this point that the Court is not unmindful or unsympathetic to these points. There is much in Fishman's plea to commend the compassion it seeks to evoke. But the argument goes only so far. Compelling as it sounds on the surface, it fails in some essential ways. Fundamentally, it is flawed by what it omits. In particular, it makes no account of several other circumstances courts are instructed to weigh adequately in ordering a fitting sentence: to reflect the severity of the crime; to promote general respect for the law; to avoid unwarranted sentencing disparities; and to consider the impact of the crime not only on its immediate victims, but on the larger social order. These principles are interrelated. They share vital links with some basic legal and philosophical concepts, ideals emblematic of the law profoundly significant for sentencing to ensure a right and just result for all concerned: fairness, balance, proportionality, and equality of treatment under law for relatively similar persons and circumstances. In sentencing, these principles seek to ensure that judgments overall fairly align so as to achieve, like planets in orbit, a special form of equilibrium, a proper balance in the delicate symmetry of justice.

Second Circuit: No Problem That Defendant And His Counsel Didn't See PSR Addendum Because They Saw A Government Letter Referencing Same

United States v. Simmons, No. 08-4031-cr (2d Cir. June 24, 2009)

Simmons argued on appeal that he was denied due process because his attorney did not receive a copy of an addendum to his PSR when he appeared for resentencing (and therefore did not have an opportunity to contest the factual assertions contained therein).  The Second Circuit found Simmons claim to be "unavailing."  Specifically, it found that the PSR addendum was referenced in a Government letter to the Court that his attorney received, and that Simmons was therefore aware of it and had an opportunity to challenge the new factual assertions (relating primarily to post-offense conduct while in custody).  Accordingly, the Second Circuit was "confident that Simmons received ample notice of the contents of the USPO's supplemental memorandum."  (Emphasis in original.)

The Second Circuit may be right.  Simmons' counsel may have known about the PSR addendum because it was referenced in the Government's letter.  Simmons counsel may have had an opportunity to respond to the Government's assertions and the actual assertions in the PSR addendum.  Indeed, maybe Simmons' attorney should have asked for the PSR addendum.  The fact remains, though, that it was not provided to Simmons or his attorney, and they did not have an opportunity to review or comment on it.  And that strikes this reader as a bit unfair.