Monday, August 28th, 2017

Second Circuit Vacates Sentence Based on Erroneous PSR

Today, in United States v. Genao, the Second Circuit vacated an illegal reentry sentence as procedurally unreasonable where the sentencing court relied on a factually erroneous presentence investigation report (PSR) to calculate the defendant’s Guidelines range. The opinion is notable both for its analysis of whether an offense under the New York burglary statute is a “crime of violence” and its determination that the district court failed to satisfy § 3553(c)’s requirement that it provide reasons for its sentence in open court.

You can access the opinion here.

Roman Bartolo Genao was convicted of illegal reentry, and had previously been convicted in New York state of first-degree robbery and first-degree burglary. At the time of Genao’s sentencing, the Guidelines imposed a 16-level enhancement for illegal reentry sentences where the defendant had previously been convicted of a “crime of violence.” (This Guideline has since been revised to impose enhancements based on the length of sentence imposed for the prior offense. See U.S.S.G. § 2L1.2(b)(2) (2016).) The PSR erroneously characterized Genao’s New York robbery conviction as second-degree robbery of a motor vehicle, and calculated a 16-level enhancement on the basis of that offense. The sentencing court adopted this 16-point enhancement over the defendant’s objection, determined the Guidelines range to be 46-57 months, and stated without elaboration that it had “consider[ed] the factors of 3553(a).” It then sentenced Genao to 46 months’ imprisonment.

The Second Circuit declared this sentence procedurally unreasonable. The defense counsel argued in a written submission and at sentencing that the 16-level Guidelines enhancement did not apply, and the sentencing court declined to explain why it rejected this argument. This omission, the panel concluded, compounded the district court’s failure to provide sufficient explanation for the sentence it imposed. Accordingly, the panel found the sentencing court’s statement of reasons inadequate to support its sentence.

Attempting to salvage the 16-level enhancement, the government argued that Genao’s conviction under New York burglary statute was a “crime of violence” under the modified categorical approach. (The government conceded that New York burglary is not a crime of violence under the categorical approach.) The panel rejected the argument because none of the Shepard documents necessary to make this determination were before the district court.

The defendant in Genao did not specifically argue at sentencing that the district court failed to provide adequate reasons to support its sentence. Given the defendant’s repeated challenges to his 16-level enhancement, however, the panel concluded that the district court had plainly failed to satisfy the open court requirements of § 3553(c). See slip op. at 13. The opinion thus illustrates the potential payoff of reviewing the PSR for accuracy and vigorously challenging any enhancements that are based an erroneous account of a defendant’s criminal history.

N.B. The Federal Defenders represents Mr. Genao.


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