United States v. Capanelli, Docket Nos. 03-1376 & 03-1439 (2d Cir. April 14, 2005) (Oakes, Jacobs & Cabranes) (Op. by Jacobs): In this opinion, the Circuit — as it did recently in United States v. Rubenstein, No. 03-1721 (see Blog, below) — vacates an erroneously imposed 5-level Guidelines enhancement; exercises its discretion to correct the error and remand for resentencing without conducting Booker‘s reasonableness review; and leaves open (again) the question of whether a sentence imposed pursuant to an erroneously calculated Guideline range could nonetheless be reasonable. Thus, the Big Question posed by Rubenstein — whether a sentence imposed upon an erroneously calculated Guidelines range could nonetheless be upheld on appeal as reasonable (and, conversely, whether a sentence imposed pursuant to a correctly calculated range could nonetheless be vacated on appeal as unreasonable) — remains unanswered.
Defendant was convicted after trial of conspiring to rob a federal credit union, a conspiracy that was foiled long before the actual robbery was to have occurred. The main question on appeal was whether a 5-level enhancement for possessing or brandishing a firearm during a robbery was applicable. Although no actual firearm was used (since the robbery never occurred), the district court imposed the enhancement on the theory that it was “reasonably foreseeable” to the defendant that a firearm would be used by one of the conspirators in furtherance of the robbery. See U.S.S.G. § 1B1.3(a)(1)(B).
The Circuit concluded that this was the wrong legal standard where the conduct supporting the enhancement did not actually occur. Relying on § 2X1.1’s specific language (that in a conspiracy offense, a court should include “any adjustments . . . for any intended conduct that can be established with reasonable certainty“) and the application note explaining this language (A.N. 2 to 2X1.1: “The only specific offense characteristics … that apply are those that are determined to have been specifically intended or actually occurred“), Judge Jacobs ruled that the 5-level enhancement is applicable only “where it can be established with reasonable certainty that the conspirators specifically intended that a firearm be brandished or possessed, although it is unnecessary that any brandishing or possessing actually occurred.” Op. at 8 (emphases in original). The language in 1B1.3 relied upon by the district court — that a conspirator is liable for all “reasonably forseeable” acts “that occurred” in furtherance of the conspiracy by a co-conspirator — was not relevant here, the Court explained, because no firearm was actually possessed or brandished. And although the facts in this case may well have supported an enhancement even under the correct standard (i.e., that there was a “reasonable certainty” that the conspirators specifically intended to possess or brandish a firearm during the contemplated robbery), the Court remanded to allow the district court to determine in the first instance whether the enhancement is appropriate under the correct legal standard. Op. at 11-12.
And, as noted already, the Court cautioned that its decision in this case to correct the error & remand for resentencing without conducting reasonableness review does not foreclose the possibility that a sentence resulting from an incorrectly calculated range can nonetheless be upheld as reasonable under Booker. Op. at 12. It simply notes that because “the influence of this error is likely to be so pronounced that it could cause resentencing after a remand to be unreasonable,” citing Rubenstein, it would remand for imposing of a new sentence under a correctly calculated Guidelines range. Id.