Home
Role Enhancement
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.
United States v. Rodriguez, No. 08-CR-332 (JBW), 2010 WL
2629823 (E.D.N.Y. May 28, 2010) Rodriguez pled guilty to a one-count indictment charging conspiracy to commit wire fraud, for
which he faced an
advisory Guidelines range of imprisonment of between 33 and 41 months.
He was sentenced to 6 months in prison. Why? "The defendant is a young man with a good work record and loving family. He is unsophisticated and played a relatively mechanical administrative role in the conspiracy." This case is a good example of using something that might form the basis of a Guidelines calculation (i.e., a minor role adjustment) as a basis for a non-Guidelines sentence as well.
United States v. Kurland, No. 10 Cr. 69 (VM), 2010 WL 2267509 (S.D.N.Y. May 26, 2010) Kurland pled guilty to insider trading in what is known as the Galleon hedge-fund insider trading case. At sentencing, he moved for a finding that he was a minor-participant in his offense, a downward departure based on his "extraordinary physical impairment," and a non-Guidelines sentence based on on his contributions to family and the community. The court rejected all. And, in doing so, it had some choice words for Kurland -- words that reflect the attitude that white-collar defendants might well face in any case brought in today's economic environment. Here are some selections: In
coming to its sentencing decision, the Court has considered Mr.
Kurland's significant contributions to his family and to the larger
community. The letters from friends, family, and associates paint a
picture of the model citizen and family man; a man held in the highest
regard by those around him. The Court particularly notes Mr. Kurland's
involvment in his daughter's nonprofit organization, as well as his
generous donations to St. Christopher's School for Kids and other
charities. Today, Mr. Kurland's attorney reiterates the message
conveyed by the letters: that Mr. Kurland is known for his commitment
to philanthropy and the public good, kindness to friends, and devotion
to family. Unfortunately,
however, Mr. Kurland's presentation to the Court, though stressing
points that argue for uniqueness, distinction, and individual
consideration, is in fact not uncommon in the world of white collar
crime and has been made in this courtroom many times before. Mr.
Kurland urges the Court to consider that he has already shown full
rehabilitation and earned redemption; that there is absolutely no
likelihood of recidivism and thus no threat of future harm to society;
that no further need exists to punish him 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. Mr. Kurland argues that the
purposes of sentencing have already been satisfied, that a sentence of
incarceration would serve little or no useful purpose, and that
probation would be enough. Let
me stress at this point that the Court is not unmindful or
unsympathetic to these points. There is much in the Defendant's plea to
commend the compassion it seeks to evoke. But the argument, compelling
as it sounds on the surface, fails in 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 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
bodies in orbit, a special form of equilibrium, a proper balance in the
delicate symmetry of justice. . . . . In
the context of securities fraud, the whole range of harm caused cannot
be measured solely by the defendant's net losses or gains. By centering
entirely on effects on him, Mr. Kurland's calculus of injury improperly
discounts material harm his offense caused to larger societal
interests. Mr. Kurland's actions, stemming from a recognized leader of
the industry, compromised the financial market's integrity at a time of
financial crises and widespread concern about corruption, rampant
recklessness, and arrogant greed at the highest levels of the industry,
a culture of oblivion to the meaning of reasonable limits that
contributed significantly to bring about the worst economic collapse in
the country since the Great Depression. As has emerged from various
public investigations of the aftermath, those practices played a role
in the disintegration or bankruptcy of some of the most venerable
financial institutions and required government rescue efforts at a cost
of hundreds of billions of public dollars. It
is this Court's view of matters now common knowledge, that to some
extent this country's financial meltdown was fueled precisely by the
attitudes manifest by Mr. Kurland in this proceeding, and repeated by
defendants in other related cases. These offenders express a view that
forms a pattern: They minimize their conduct, they suggest that their
roles were really minor, that the gains they made were relatively
small, that others are more to blame for more culpable offenses, that
the markets were not really hurt, so that the offenses charged
essentially amount to victimless crimes. These
rationalizations are beside the point. Fundamentally they suggest a
perception that the law applies only to the other guy, and that what
are self-servingly dismissed as minor infractions have no cumulative
impact on the larger community, or indeed on the nation as a whole.
This view, if not effectively curtailed, can quickly deteriorate to a
philosophy in which moral bounds blur or disappear altogether,
engendering a reality in which everything is permitted. The real point
for Mr. Kurland here was that he had a choice. As a leader of the
financial industry, he could have led by law abiding example. Instead,
he chose to follow. He became a joiner, surrendering to the spree of
the financial market's virtual mob mentality that nearly brought down
this nation's economy in the quest for ever bigger and faster gains.
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.
United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359 (E.D.N.Y. March 30, 2010) When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison. As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants. This makes them easier to overlook. But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 minutes. This case is a good example.
Wow. That's a helluva an opening paragraph for a sentencing opinion. Let's delve deeply into the case to see what precipitated the Judge Gleeson to write it. As the reader will see, Judge Gleeson has some strong opinions concerning mandatory minimum sentences and the means by which they cast too broad a net. And he has a few choice words for the prosecutors who use them. Background Concerning the Defendant -- Vasquez, age 36 was born in Puerto Rico, the youngest of 12 children. He
had no relationship with his father, who died when he was four or five years
old. He did, however, have a relationship with one of his many older brothers
that was especially damaging. From the age of seven, Vasquez was sexually abused
repeatedly by this brother, and as a result he struggled with depression
his entire life.
Vasquez dropped out of high school in the
ninth grade. By his early twenties, he had acquired some expertise in fixing
cars and trucks. He had also acquired a cocaine addiction. In approximately
1994, he commenced a turbulent ten-year relationship with Ingrid Melendez,
with whom he had three children. During that period, he suffered from multiple
bouts of depression. When the relationship ended in 2004 due to Melendez's
infidelity, Vasquez attempted suicide. He spent two months in Bellevue
Hospital, where he received medications for depression and bi-polar disorder. Other than the drug trafficking that got him
convicted in this case (described below) Vasquez's entire criminal
history stems from his relationship with Melendez. In December of 2004, after
his release from Bellevue, she refused to let him see their children. He
reacted by menacing her with a knife in front
of the children. Though he was given a conditional discharge, he failed to
abide by the conditions; six months later he violated an order of protection by
threatening to kill Melendez. This conduct got Vasquez 60 days in jail on the
earlier menacing case and 60 more for contemptuously violating the order of
protection. A year later, in June of 2006, Vasquez once again showed up at
Melendez's home without permission. He was convicted of harassment and given
another conditional discharge. In 2005, Vasquez met Maritza Caraballo, a bank
teller. They lived together and enjoyed a stable relationship until March 25,
2009, when Vasquez was arrested in this case. They have a three-year-old
daughter, and Carabello's eight-year-old daughter from a prior relationship
also lives with them. Vasquez worked continuously during that period, first as
an auto mechanic, then, beginning in 2007, as a construction supervisor.
Vasquez and Caraballo are engaged to be married in June. Melendez continued to deny Vasquez access to
their three children. Caraballo reports that this produced an extremely
stressful situation for Vasquez, who was complying with his court-ordered child
support obligations to those children. Though Vasquez had stopped using drugs
after he met and began living with Caraballo, under the mounting stress of his
situation with Melendez and their children, he finally relapsed in 2008, when
he began using cocaine again. That development laid the groundwork for his
involvement in his offense of conviction. To support his expensive cocaine
habit, Vasquez went to work in approximately September of 2008 for one of his
older brothers, Jose Angel Vasquez, a drug dealer and his co-defendant in this
case. Unfortunately for both of them, the government was intercepting the
telephone calls of members of Jose Vasquez's business. Those calls identified
the defendant as a minor participant in his brother's organization. More
specifically, "[t]he government's investigation revealed that, for the
most part, the defendant was a street-level distributor for his brother's
organization, with only occasional and minor participation in the
organization's broader activities." In the six to eight months
he was involved in the business to support his habit, Vasquez personally assisted
in the distribution of 300 grams of heroin. He was aware of the distribution of
350 additional grams by others, so he was responsible under the Guidelines for 650 grams.
After his arrest, Vasquez tried to cooperate
with the government. He provided information about two individuals, but it
could not be corroborated. As the prosecutor stated when Vasquez first appeared
for sentencing on December 29, if he "had more information, he would have
received a" substantial assistance motion.
The Charge -- According to Judge Gleeson, the Government basically overcharged Vasquez. Specifically:
The
government had it within its power to charge Vasquez with a standard drug trafficking charge, which carries a maximum
sentence of 20 years. Instead, it included him in a conspiracy charge with his
brother and three others and cited to a sentence-enhancing provision that
carries a maximum of life in prison and a mandatory minimum of ten years upon
conviction. During plea negotiations, the government refused to drop that
charge unless Vasquez pled guilty to a lesser-included sentencing enhancement
that carried a maximum of 40 years and a mandatory minimum of five years.
The Effect of the Drug Sentencing Laws on Vasquez -- According to Judge Gleeson, the drug laws (on which he provides excellent background) have a dramatic impact on Vasquez. As described by the Court:
The second result of this regime is placed in
clear relief by this case. I f they want to, prosecutors can decide that
street-level defendants like Vasquez--the low-hanging fruit for law enforcement--must
receive the harsh sentences that Congress intended for kingpins and managers,
no matter how many other factors weigh in
favor of less severe sentences. The government concedes, as it must, that Vasquez
played a minor role in his brother's modest drug operation, not the
mid-level managerial role the five-year mandatory sentence was enacted to
punish. Indeed, the government argues that Vasquez's guidelines computation
includes a two-level downward adjustment because of his mitigating role
in the offense. See U.S. Sentencing Guidelines Manual 3B1.2(5). Yet, by the simple act of invoking the sentence-enhancing
provision of the statute, the government has dictated the imposition of the
severe sentence intended only for those with an aggravating role.
What's a Judge to Do? At sentencing, the Court took an activist role, expressing displeasure with the Government's position and asking the Government to reconsider that position. Ultimately, the Government refused, leading to a none-to-happy Judge Gleeson.
Specifically: When
the case was first called for sentencing in December, I pointed out the
obvious: the five-year mandatory sentence in this case would be unjust. The
prosecutor agreed, and welcomed my direction that she go back to the United
States Attorney with a request from the Court that he withdraw the aspect of
the charge that required the imposition of the five-year minimum. She asked for
a couple of months to make the case that the sentence enhancement should be
abandoned. On March 5, 2010, the prosecutor appeared
again, shadowed by a supervisor. She reported that the United States Attorney
would not relent. She offered two reasons. The first was that I might have
failed to focus on the fact that Vasquez had "received a bump down,"
meaning he was allowed to plead to the five-year mandatory minimum rather than
to the ten-year mandatory minimum that he,
his brother, and three other co-defendants were originally charged with. I think this means that Vasquez should be grateful the
government did not insist on a ten-year minimum sentence based on additional
quantities of cocaine it concedes he knew nothing about and could not be held
responsible for under the guidelines, presumably on the theory that
other members of the same conspiracy dealt those quantities. I suppose there is some consolation
in the fact that the government did not pursue that absurd course, which would
have produced an even more egregious injustice if Vasquez had been convicted.
But that hardly explains, let alone justifies, the government's insistence on
the injustice at hand. Second, the prosecutor suggested that I had
failed to "focus" on the seriousness of Vasquez's crimes against his
ex-wife, Melendez. Implicit in that assertion is the
contention that even if Vasquez does not deserve the five-year minimum because
he was not a mid-level manager of a drug enterprise, he deserves it because of
his past crimes. This rings especially
hollow. Those past crimes have been front and center at all times, not only
because they render Vasquez ineligible for safety valve relief from the minimum
sentence, but also because there was litigation over how many
criminal history points they warranted. When Vasquez first appeared for
sentence on December 29, both of these subjects were discussed. And when the prosecutor took the position that the
criminal history points produced by Vasquez's past crimes overstated the
gravity of those crimes, warranting a downward departure, it did not appear she
had failed to focus on their seriousness either. In any
event, I certainly had not.
I recognize that the United States Attorney is
not required to explain to judges the reasons for decisions like this one, and
for that reason I did not ask for them. But the ones that were volunteered do
not withstand the slightest scrutiny.
The Sentence and the Explanation for the Sentence -- Judge Gleeson was none-too-pleased with having to impose a 5 year mandatory minimum sentence. Indeed, he viewed it as one of those "small injustices" that he described in the opening paragraph of his sentencing opinion. As the Court explained (I've added some paragraph breaks for ease of reading):
As a result of the decision to insist on the five-year mandatory minimum, there
was no judging going on at Vasquez's sentencing. Though in theory I could have
considered a sentence of greater than 60 months, even the prosecutor recognized
how ludicrous that would be, and asked for a 60-month sentence. But the
prosecutor's refusal to permit consideration of a lesser sentence ended the
matter, rendering irrelevant all the other factors that should have been
considered to arrive at a just sentence.
The defendant's difficult childhood and lifelong struggle with
mental illness were out of bounds, as were the circumstances giving rise to his
minor role in his brother's drug business (i.e., it was to support an
addiction, not to become a narcotics entrepreneur with a proprietary stake in
the drugs), the fact that he tried to cooperate but was not involved enough in
the drug trade to be of assistance, the effect of his incarceration on his
three-year-old daughter and the eight-year-old child of Caraballo he is raising
as his own, the fact that he has been a good father to them for nearly five
years, the fact that his prior convictions all arose out of his ex-wife's
refusal to permit him to see their three children.
Sentencing is not a science,
and I don't pretend to be better than anyone else at assimilating these and the
numerous other factors, both aggravating and mitigating, that legitimately bear
on an appropriate sentence. But I try my best to do just that, and by doing so
to do justice for the individual before me and for our community. In this case,
those efforts would have resulted in a prison term of 24 months, followed by a
five-year period of supervision with conditions including both other forms of
punishment (home detention and community service) and efforts to assist Vasquez
with the mental health, substance abuse, and anger management problems that
have plagued him, in some respects for his entire life. If he had failed to
avail himself of those efforts, or if, for example, he intentionally had
contact with Melendez without the prior authorization of his supervising
probation officer, he would have gone back
to jail on this case.
The mandatory minimum sentence in this case
supplanted any effort to do justice, leaving in its place the heavy wooden club
that was explicitly meant only for mid-level managers of drug operations. The
absence of fit between the crude method of punishment and the particular set of
circumstances before me was conspicuous; when I imposed sentence on the weak
and sobbing Vasquez on March 5, everyone present, including the prosecutor,
could feel the injustice.
Conclusion -- Judge Gleeson's words say it all:
In sum, though I am obligated by law to
provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law
that should not have been invoked to impose a five-year prison term.
United States v. Sanchez-Rangel, No. cr-08-186, 2009 WL 4626646 (E.D.N.Y. Dec. 7, 2009) Sanchez-Rangel pled guilty to conspiracy to distribute cocaine and firearms sales. He faced an advisory Guidelines range of imprisonment of between
135 and 168 months. He was sentenced, however, to 60 months imprisonment. As detailed by the district
court, "[w]hile the defendant played a supervisory role in the criminal conspiracies of which he was a part, that role was relatively minor, making the guidelines sentence excessive. The defendnat is a hardworking man without any education who supported his family." Not sure how one can both play a supervisory and minor role in a conspiracy.
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?
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."
|
Government ResourcesStatutes, Rules & RegulationsOrganizationsLaw-Related BlogsOther Resources
|