Tuesday, April 28th, 2009

Object Permanence

United States v. Marte Robles, No. 07-1013-cr (2d Cir. April 9, 2009)(Straub, Hall, CJJ, Eaton, DJ)(per curiam)

In this case, the court was called upon to construe Application Note 4 to U.S.S.G. § 1B1.2. Section 1B1.2(d) provides that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” The application note advises that “[p]articular care must be taken” when applying this subsection because there are cases where “the verdict or plea does not establish” which offenses were “the object of the conspiracy. In such cases, [subsection(d)] should only be applied with respect to an object offense alleged in the conspiracy count” if the court, were it sitting as the trier of fact, “would convict the defendant of conspiring to commit that object offense.”

After a jury trial, defendant Marte was acquitted of several substantive Hobbs Act robbery charges. He was convicted only of a single Hobbs Act conspiracy count that alleged, generally, that he and others robbed drug dealers in the Bronx and Manhattan, but did not identify any specific robberies as the object of the conspiracy. At sentencing, however, the district court concluded that the government had proven beyond a reasonable doubt that he conspired to commit two particular robberies, considered them to be the offenses that were the object of the conspiracy, and took them into account when calculating Marte’s guideline range.

On appeal, Marte argued that this was a misapplication of § 1B1.2(d) and Note 4, because those provisions prohibit sentencing enhancements based on the objects of a conspiracy are not specifically identified in the conspiracy count of the indictment.

On its face, Marte’s position would seem reasonable, since it appears to be consistent with the plain language of the application note. But the circuit disagreed. It held that the emphasis of Note 4 was “not on the specificity of the conspiracy charge but on the standard of proof that must be satisfied to permit a court to find that a defendant conspired to commit particular object offenses and then to treat such findings as a sentencing factor in determining the defendant’s offense level.”

The court also rejected Marte’s Sixth Amendment challenges to the sentence. There is no Sixth Amendment violation in a conspiracy sentence that is based on objects not alleged in the conspiracy count of an indictment. Nor was it true that the district court based the sentence on “the same conduct” that Marte was acquitted of. The substantive commission of a robbery is not “the same conduct” as conspiring to commit that robbery.

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