In an opinion issued today, the Circuit vacated and remanded a decision by SDNY Judge Katherine B. Forrest to deny the defendant a reduction in offense level based on acceptance of responsibility despite his guilty plea. You can access the decision in United States v. Delacruz, No. 15-4174, here.
The Circuit held that “[I]n light of a defendant’s due process right to contest alleged factual errors in his PSR, his good-faith objections to material PSR statements that he disputes does not provide a proper foundation for denial of the acceptance-of-responsibility credit.” Op. at 22. If the defendant objects to, and denies, facts that are neither part of the count(s) of conviction nor “relevant conduct” within the meaning of U.S.S.G. Section 1B1.3, the District Court may not deny an acceptance-of-responsibility reduction based on the defendant’s objections or denials. Op. at 28. It may, however, consider in its analysis pursuant to 18 U.S.C. 3553(a) conduct outside the scope of the count(s) of conviction that does not constitute relevant conduct.
Delacruz pled guilty to a Hobbs Act robbery conspiracy following his arrest as result of an undercover sting operation. When he entered his plea before the Magistrate judge, he said that his “role in the matter was to act as a lookout.” Op. at 7. The presentence report implied that Delacruz had previously been involved in selling drugs and was to be compensated for the robbery by receiving drugs to sell and that Delacruz indicated to cooperators in the case that he personally would harm one of the targets of the robbery. Delacruz, through counsel, objected to these aspects of the presentence report, although he did not challenge the guidelines calculation in the report. The presentence report subtracted three offense levels based on Delacruz’s acceptance of responsibility and calculated the same guidelines range as the parties (46-57 months).
In his sentencing submission, Delacruz’s attorney referred to Delacruz’s role in the robbery as that of “driver/lookout” as opposed to one of the people who was expected to physically commit the robbery and injure the targets. Those individuals had weapons in their car, whereas there were no weapons in Delacruz’s car. The government similarly referred to Delacruz’s role as that of a driver and was candid with the Court that it had permitted Delacruz to plead to the Hobbs Act robbery conspiracy charge, while requiring pleas to charges that carried mandatory minimum sentences from his co-defendants, because it had determined that his conduct was less serious because his role was solely to act as the driver.
After receiving the parties’ sentencing submissions, the District Court sua sponte ordered a Fatico hearing to determine whether there was a factual basis to believe Delacruz had sold drugs in the past or that he stated the robbery crew was going to harm one of the targets of the robbery. Delacruz objected to the hearing. At the Fatico, an interpreter testified to the accuracy of a translated transcript in which Delacruz said that one of the targets of the robbery was “going to cry like a sissy,” and Alex Velez, the head of the conspiracy, who had signed a cooperation agreement with the government, testified that he had seen Delacruz sell drugs in the past and that his role in the robbery was to rent the car, drive to New York, and then transport the drugs stolen in the robbery back to Philadelphia.
With respect to allegations regarding Delacruz’s past drug sales, the District Court found the allegation supported by a preponderance of the evidence based on Velez’s testimony. The Court said it would not sentence Mr. Delacruz for being part of a drug conspiracy, but would consider the information “for the overall background in terms of the crime itself [and] also in consideration of the 3553(a) factors.” Op. at 13. The Court also found that although Delacruz had not stated he himself would inflict harm on the targets, he implied as much. Op. at 13-14.
The District Court proceeded to reject the position of the parties and probation that Mr .Delacruz should receive a three-level reduction for accepting responsibility. The Court found that he had “indicated that he was going to be, quote, just a lookout when he spoke to probation. I don’t believe that this is supported by the totality of the facts before the Court. He was not going to be just a lookout.” Op. at 14. Without the reduction for acceptance of responsibility, the Court found Delacruz’s guidelines were 63-78 months and sentenced him to 63 months.
The Circuit described the District Court’s action as “den[ying] Delacruz acceptance-of-responsibility credit because it viewed him as falsely attempting to minimize his participation in the robbery scheme, based on two findings of fact.” Because the Circuit found both findings clearly erroneous, it vacated and remanded for resentencing.
With respect to the Court’s finding that Delacruz had told probation that he had “just” been the lookout, the Circuit found no evidence to support the District Court’s conclusion. Although Delacruz had described himself as a lookout during his plea, he did not say that had been his only role. The Circuit also found a lack of support in the record for the District Court’s conclusion that Delacruz would personally inflict harm on the targets of the robbery. There was no testimony that Delecruz was expected to personally inflict any harm and there was testimony that his role, an important one to be sure, was that of a getaway driver. Nor was there any evidence that Delacruz had a weapon, unlike the three co-conspirators whose role had been to actually obtain the narcotics and inflict harm if necessary.
With respect to the District Court’s findings regarding Delacruz’s past drug dealing, the Circuit made clear that although the District Court could properly consider such conduct under 3553(a), it could not properly (and did not) deny acceptance of responsibility points based on Delacruz’s denial of that conduct. Where the past conduct was not part of the robbery conspiracy to which Delacruz pled guilty nor “relevant conduct” within the meaning of U.S.S.G. Section 1B1.3, his admission or denial of that conduct had no bearing on his acceptance of responsibility under U.S.S.G. 3E1.1. Op. at 28. Section 3E1.1 requires that a defendant “truthfully admits the conduct comprising the offense or offenses of conviction.” Op. at 21 (citations omitted). “A denial of acceptance-of-responsibility credit ‘for behavior which [the defendant] has continued to deny and has not been proved against him beyond a reasonable doubt’ violates the Fifth Amendment.” Id. (quoting United States v. Oliveras, 905 F.2d 623, 631 (2d Cir. 1990)).
The Circuit’s analysis of what is required to qualify for the acceptance-of-responsibility reduction – truthfully admitting the conduct comprising the offense(s) of conviction and either truthfully admitting or not falsely denying any additional relevant conduct – is useful in any case in which the government or the district court questions whether the reduction is appropriate. See Op. at 20-22.
Attorneys practicing in the SDNY should take particular note of the District Court’s sua sponte decision to hold a Fatico hearing based on sentencing submissions in which the government did not contest the defendant’s description of his role. This does not seem to be an isolated occurrence. Where possible, getting the government and probation to agree to changes prior to the final version of the presentence report may be more effective than raising objections with the Court. But be aware that the District Court has a record of making sua sponte factual inquiries, or sua sponte ordering Fatico hearings, into even uncontested representations made by defense counsel.