Role Away

United States v. Labbe, No. 08-0673-cr (2d Cir. December 4, 2009) (Newman, Pooler, Katzmann, CJJ)

About a week before Labbe’s sentencing, the district court issued a written Sentencing Opinion describing the sentence it was likely to impose. The Opinion included a 4-level role reduction for Labbe’s “minimal” participation and announced that “Labbe is hereby sentenced to … 57 months.” The Opinion noted, however, that this was “subject to modification at the sentencing hearing.”

Before sentencing, the government sent a letter to the court objecting to the role reduction, but at the sentencing hearing itself the defense focused its arguments primarily on the loss calculations, apparently assuming that the judge had decided to keep the role reduction. The judge asked the government a few questions about the relative participation levels of Labbe and his co-conspirators, then announced that the “government’s argument and its reading of the guidelines with respect to the minor and minimal participants is right.” He imposed a sentence 30 months longer than that contained in the Sentencing Opinion.

On appeal, Labbe argued that the district court’s change of heart was not supported by adequate findings. The court of appeals agreed. It held that the Sentencing Opinion had given Labbe an “expectation” that he would be sentenced to 57 months. Under the advisory Guidelines, a court need not give notice of its intention to impose a non-Guideline sentence. But here, the Sentencing Opinion created an “expectancy” that was more like that created by the mandatory Guidelines and “gave rise to the need for notice that a significant change was likely” so that Labbe would have a chance to oppose the contemplated change.

The court did not rule on the merits because it concluded that the district court’s findings on the issue were insufficient for appellate review. The appellate court was uncertain whether the judge changed his mind because he (1) attributed more misconduct to Labbe than he had originally found, (2) was interpreting the guideline differently than before, or (3) had simply reassessed the significance of the facts under the same legal standard that he had used in the Sentencing Opinion.

The court accordingly remanded the case for a de novo sentencing, at which the defense – now alerted to the judge’s inclinations – would have a “full opportunity to argue for the adjustment.”