Alain Leibman writes:
The Sentencing Guidelines have from their inception enhanced a defendant’s offense level — thus increasing the exposure to a longer sentence — if she exercised an aggravating role in the commission of concerted activity (and likewise reduced an offense level for a mitigating role in an activity). Prosecutors and defense attorneys have struggled with applying broad and unclear criteria in trying to either fix or escape, as the case may be, sentencing exposure for the defendant’s factual responsibility for group activity.
Section 3B1.1 of the Guidelines purports to offer the necessary guidance for ascribing the appropriate offense level enhancement for different degrees of criminal oversight. According to that provision, a defendant who is a "manager or supervisor (but not an organizer or leader)" of activity involving five or more criminal participants is assigned a 3-level upward adjustment, while a defendant who is an "organizer or leader" of such activity will see her offense level go up by 4 levels. The consequences can be considerable for the calculation of the resulting advisory sentencing range. To aid in the task, the application notes to that provision provide a series of non-exhaustive factors to be considered in evaluating the defendant’s relationship to the crime.
But as Judge Posner of the Seventh Circuit recently noted, in an opinion reflecting both his frustration and amusement with the vagaries of the evaluative factors, they are not really of much help. In United States v. Rosales, 2013 WL 2221499 (7th Cir., May 22, 2013), the appeals court affirmed the lower court’s determination that the defendant was an organizer or leader of a ring which stole trucks and fenced their contents. However, in an opinion which compares comfortably with an On Language piece by the late William Safire, Judge Posner makes rhetorical mincemeat of factors which require judges to confusingly and redundantly assess "the nature of participation in the offense," "the degree of participation in planning organizing the offense," and "the nature and scope of the illegal activity."
Even a seemingly quantitative and verifiable factor like "the claimed right to a larger share of the fruits of the crime" comes in for the criticism that the relative shares of booty do not necessarily identify the leaders and followers in the enterprise. As the court notes, a star salesman is often paid more than his sales manager, hospital surgeons are often paid more than their supervising administrators, and the head coach of a college sports team is often paid more than the university’s athletic director. The sentencing commission, the judge writes, really should give further attention to this "terribly confused" state of affairs.
In the end, the enhancement for Rosales was affirmed based on a number of real-world facts about the composition of the robbery gang — Rosales was the paymaster of the gang; he brought other persons into the gang and so acted as a recruiter; and he located warehouse space in which to store stolen merchandise. In language which would have been equally at home coming from any sports fan sitting in the stands and talking about the importance of a team’s quarterback or shortstop, and with no serious effort to apply the gibberish of the application notes, Judge Posner explained his affirmance in this very conclusory way: "Without him or someone in his position the gang would’ve fallen apart. The gang needed a leader in order to function, and he was the leader."
(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)