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. 

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.

Remanding To Different District Court Judge For Failure To Conduct Resentencing Hearing

United States v. Johnson, No. 06-2026-cr (2d Cir. July 28, 2010) (found here)

Johnson's prior life sentence was vacated, and his case remanded for resentencing.  On remand, the district court declined to conduct a new sentencing hearing and instead issued a new sentencing opinion once again sentencing Johnson to life.  As the Second Circuit noted, it's prior order required a new sentencing hearing.  The district court's failure to conduct one constituted reversible error.

Thus, the only question for the Second Circuit was whether to send it back to the same judge or assign a new judge.  It chose to reassign the case.  Specifically, it stated that:

Though we do not doubt Judge Johnson would comply faithfully with out instructions following remand, and express no view as to the proper sentence in this case, the number of errors that have attended defendant's repeated sentencing proceedings could lead a reasonable observer to question the court's impartiality.  Though we are mindful of the inefficiencies associated with reassignment, we further note that because defendant is entitled to de novo resentencing, any district court judge would be required to update the record and re-weigh the factors contained in 18 U.S.C. § 3553(a).

Second Circuit Reverses Child Pornography Sentence As Procedurally Unreasonable

United States v. DeSilva, Docket No. 09-2988-cr (2d Cir. July 28, 2010) (found here)

Different that the reversals in the context of child exploitation crimes like that in Dorvee, the Second Circuit reversed DeSilva's sentence as procedurally unreasonable.  In particular, it held that "the District Court committed procedural error by engaging in clearly erroneous fact-finding at defendant's sentencing when it relied upon a psychologist's report -- which was prepared for use at a pretrial bail hearing -- to find that defendant, an admitted child molester, posed no danger to the community."  It further found that "[a]lthough a psychologist's report may provide mitigating evidence for the court's consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a)."

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.

Second Circuit Finds Sentence Substantively Unreasonable

United States v. Dorvee, Docket No. 09-0648-cr (2d Cir. May 11, 2010) (found here)

In what amounts to a rare circumstance, the Second Circuit found that a 240 month sentence imposed on a defendant who pled guilty to one count of distribution of child pornography was substantively unreasonable.  (The Second Circuit also found the sentence procedurally unreasonable because of an error in the calculation of the defendant's advisory Guidelines offense level.)

More specifically, the Second Circuit found the sentence substantively unreasonable for the following reasons.  First, the court was "troubled  by the district court's apparent assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the record evidence yet one that plainly motivated the court's perceived 'need to protect the public from further crimes of the defendant.'"  This assumption caused the district court to place undue weight on this sentencing factor.  Second, the district court's "cursory explanation of its deterrence rationale ignored the parsimony clause."  Specifically, the "district court provided no reason why the maximum sentence of incarceration was required to deter Dorvee and offenders with similar history and characteristics."  Moreover, the district court "offered no clear reason why the maximum available sentence, as opposed to some lower sentence, was required to deter an offender like Dorvee."  Finally, the Second Circuit was also "troubled that the district court seems to have considered it a foregone conclusion that the statutory maximum sentence 'probably [would] be upheld' on appeal, apparently because it concluded that its sentence was 'relatively far below' the initial Guidelines calculation of 262 to 327 months."

The facts of Dorvee may make its substantive unreasonableness determination limited.  Indeed, the Second Circuit recognized that the district court's errors "were compounded by the fact that the district court was working with a Guideline that is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what 3553 requires."  Still, it is worth reading (and relying upon) because it provides a road-map and insight to those who are arguing substantive unreasonableness on appeal, particularly as regards the Second Circuit's references to the parsimony clause.  It's well worth checking out in full.

Failure To Consider 15 Years Of Rehabilitation Is Procedural Error On Resentencing

United States v. Hernandez, Docket No. 09-1421-cr, 2010 WL 1780364 (2d Cir. May 5, 2010)

Remember United States v. Ray?  That was the case in which the Second Circuit declared that a fifteen year delay in re-sentencing violated a defendant's right to speedy sentencing.

Hernandez is similar in that there was also a fifteen year delay between a remand for re-sentencing and the actual re-sentencing.  In reversing and remanding for re-sentencing yet again, though, the Second Circuit did not rely on Ray and the speedy sentencing principle (perhaps because Ray was decided after briefing on Hernandez's appeal).  Rather, it relied on the district court's procedural error in failing to consider Hernandez's intervening rehabilitation (and took the unusual step of remanding the matter to a different district court judge for re-sentencing).  As described by the Second Circuit:

Defendant-appellant Hector Hernandez appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) in 2009, which re-imposed a 405-month sentence of incarceration after remand from this Court back in 1993.  The record indicates that the district court evidently started with an assumption -- invalid after so long an interval -- that the baseline for the re-sentencing was the sentence imposed in 1991, and thereby failed to properly consider the factors set out in 18 U.S.C. § 3553(a) -- particularly Hernandez's submission of evidence of rehabilitation -- at the time of re-sentencing.  Accordingly, we vacate and remand for re-sentencing before a different district court judge.

Guest Blogger Marshall Mintz: District Court Authority To Amend Restitution Orders

Guest Blogger Marshall Mintz provides his take below of United States v. Kyles, No. 06-4196 (2d Cir. April 2, 2010) (found here), in which the Second Circuit held (in an appeal that Mr. Mintz handled) that a district court has implied authority to amend a restitution order, entered under the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663 et seq. (the "VWPA"), during the period that the defendant was incarcerated.  As he notes, though, because the district court's order in Kyles improperly designated the setting of a payment schedule to the Bureau of Prisons, the Second Circuit remanded for further proceedings.

The Facts

Kyles was convicted in 1993 of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and sentenced to 262 months' imprisonment to be followed by five years' supervised release.  As a special condition of his supervised release, Kyles was directed to pay $4,133 in restitution on a schedule to be determined by the United States Probation Office.  However, the Probation Office never set any schedule for those payments.  In October 1998, the district court, for reasons unknown, issued an Order Amending Judgment which directed Kyles to “pay restitution of $2 per month, while incarcerated,” and reserved authority to alter that amount in the future.

In June 2006, in response to a letter from the Bureau of Prisons (the context of which is not clear), the district court further amended the judgment in Kyles's case, "to reflect an increase in the defendant's restitution payment obligation from $2 each month to $25 each month, while incarcerated," while again reserving the right to make further alterations in the future.

Kyles sought reconsideration of that order, arguing that the district court lacked authority to issue either the October 1998 order or the June 2006 order, as neither had been entered within seven days of sentencing as required by Rule 35 of the Federal Rules of Criminal Procedure.  Further, Kyles argued that even if the court had the authority, he lacked the means to pay $25 per month.  In September 2006, the district court vacated its earlier order and directed that "restitution payments shall be increased in accordance with the guidelines of the Inmate Financial Responsibility Program" of the Bureau of Prisons.

The Appeal

On appeal, Kyles contended that the district court lacked statutory authority under the VWPA to modify his restitution schedule while he remained incarcerated.  Further, even if the district court did have the authority to enter the Order Amending Judgment, the provision that restitution payments should be set “in accordance with the guidelines of the Inmate Financial Responsibility Program” was an improper delegation of judicial authority to the Bureau of Prisons. 

While the appeal was pending, the government filed a motion seeking to have the initial 1993 restitution schedule vacated so that the district court could clarify its initial intent with respect to the payment of restitution while Kyles was incarcerated.  That motion was denied without prejudice to the government seeking the same relief in its brief.  In its brief, the government argued that the 2006 order should be vacated because the district court lacked authority to enter it under Rule 35 but that the 1998 order should stand because no timely appeal was taken. 

In June 2009, the Second Circuit ordered the parties to submit further briefing on whether the VWPA gave the district court inherent authority to amend the payment schedule.

The District Court's Authority to Modify the Schedule

In holding that the district court had the authority to amend the judgment in the first place, the Second Circuit held that “[t]o the extent it allowed Kyles to pay the sentenced amount in installments, that departure from the statutory presumption in favor of immediate restitution is not reasonably understood as a ‘sentence,’ but rather as an application of equity to performance of the pronounced sentence, providing a means for Kyles fully to compensate his victim consistent with his limited means.”  Thus, a modification of the restitution schedule only changes the application of equity and not the amount of restitution.  As such, the Second Circuit found there was “no change in sentence.”

In rejecting Kyles’s argument that the VWPA precluded a district court from amending the restitution schedule while a defendant was incarcerated, the Second Circuit held that the statute gave district courts an inherent authority “to adjust [restitution] orders when the circumstances informing them change.”  As it reasoned, “[u]nless the equitable authority conferred by § 3663(f)(1) is construed to permit a court to modify a payment schedule as warranted by changed circumstances, a defendant who encounters unanticipated financial setbacks may be burdened with an unreasonable schedule.” 

With respect to the fact that a later statute, the Mandatory Victims Restitution Act, 18 U.S.C. § 3663 (1996), includes an explicit authorization for a district court to amend a payment schedule if a defendant experiences a material change in his economic circumstance (thus making clear that Congress knew how to give a district court the authority if it chose to), the Second Circuit held that the provision merely “clarifies and strengthens what is implicit in the VWPA.” 

The Delegation to the Bureau of Prisons

The Second Circuit did find that the district court exceeded its authority when it ordered that the payments should “be increased in accordance with the guidelines of the Inmate Financial Responsibility Program,” citing to United States v. Mortimer, 94 F.3d 89 (2d Cir. 1996). 

In Mortimer, the district court had similarly ordered that the defendant “pay restitution while in prison according to a schedule to be determined pursuant to the Bureau of Prisons Inmate Financial Responsibility Program.”  The Second Circuit rejected that provision, reasoning that since the payment schedules under the IFRP are not fixed but instead left to the discretion of the BOP personnel, such a delegation of judicial authority to BOP staff is improper.

The Second Circuit further found that there was "little to distinguish the challenged order . . . from that held invalid in Mortimer," and remanded for further proceedings.

Remand for Resentencing Means Remand for Resentencing

United States v. Peguero, No. 09-4405-cr, 2010 WL 605709 (2d Cir. Feb. 22, 2010)

Peguero's case was reversed and remanded by the Second Circuit for resentencing.  Upon such remand, the district court merely entered a "Resentencing Order" without a hearing, and imposed the same sentence that it originally imposed.  That wasn't good enough for the Second Circuit.  Rather, as it explained, a remand order "clearly contemplates a full resentencing procedure, complying with the procedural rules set forth in Federal Rule of Criminal Procedure 32, including the right of the defendant to make written and oral submissions with respect to the sentence to be imposed."  Also, "a sentencing court is required to state its reasons for the sentence imposed in 'open court.'"

Supervised Release Condition of Notification of "Significant Romantic Relationship" Unconstitutionally Vague

United States v. Reeves, 591 F.3d 77 (2d Cir. 2010)

Reeves is an important case in the development of penalties for child pornography offenders.

Specifically, Reeves was convicted of possession of child pornography, and was sentenced principally to 40 months imprisonment.  The district court, however, set a special condition of supervised release that obligated Reeves, upon entry into a "significant romantic relationship," to notify the United States Probation Department and inform the other party to the relationship of his conviction.  On appeal, Reeves challenged the special supervised release condition.  And he prevailed.

Initially, the Second Circuit noted that "[i]f a condition, however well-intentioned, is not sufficiently clear, it may not be imposed" because of due process concerns.  Specifically, a defendant "has a due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct wil result in [the defendant] being returned to prison."  A condition is unconstitutionally vague, in turn, when "men of common intelligence must necessarily guess at its meaning and differ as to its application."  The Second Circuit then found that the condition imposed by the district court was unconstitutionally vague.  As described by the Second Circuit (with literary flourish):

We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a “significant romantic relationship.” What makes a relationship “romantic,” let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be “significant.” The history of romance is replete with precisely these blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989); He's Just Not That Into You (Flower Films 2009).

Additionally, it bears noting that the Second Circuit found that the condition "effects an unnecessary deprivation of liberty, because it is not reasonably necessary for deterrence, the protection of the public, or rehabilitation, and, in addition, is not narrowly tailored."