Monday, May 16th, 2016

Second Circuit Vacates Sentence Due to Inadequate Factual Determination Regarding Application of the “Otherwise Extensive” Nature of Conduct Enhancement under U.S.S.G. § 3B1.1(a); Affirms Three Convictions in Summary Orders

In United States v. Kent, 14-2082, the Second Circuit vacated a sentence and remanded for resentencing after concluding that the District Court’s application of a 4-level enhancement under U.S.S.G. § 3B1.1(a) was not supported by adequate factual findings.  The district court determined that Mr. Kent was a leader or organizer of criminal activity that was “otherwise extensive” within the meaning of U.S.S.G. § 3B1.1(a)  and applied the 4-level enhancement.  Many of the facts relied upon by the district court in making this determination – including the amount of money Mr. Kent made and the number of victims of the scheme – already were taken into account by enhancements under U.S.S.G. § 2B1.1(b)(1)(H) (the loss amount enhancement) and U.S.S.G. § 2B1.1(b)(2)(B) (the number of victims enhancement).  The Second Circuit explained that relying on loss amount and the number of victims to find that criminal activity was “otherwise extensive” for the purposes of U.S.S.G. § 3B1.1(a)  constitutes the “impermissible double counting” of offense characteristics that “are dealt with elsewhere in the Guidelines.”  Opinion at 16.  The Court remanded for resentencing with an instruction to consider the number of knowing and unknowing participants in the scheme and to focus on whether the facts identified by the court are sufficiently related to the “extensive” nature of the conduct so as to justify the application of U.S.S.G. § 3B1.1(a).  Mr. Kent was represented by Mark Gombiner of the Federal Defenders in the district court and by Yuanchung Lee of the Federal Defenders on appeal.

The Court issued a summary order in United States v. Gottesman, 14-2874, affirming the conviction and sentence of one of Mr. Kent’s co-defendants, who challenged the district court’s conscious avoidance instruction.  The Circuit held that the district court properly included a conscious avoidance instruction because the defendant had placed the element of knowledge at issue and because the government had introduced sufficient evidence for the jury to conclude that the defendant “was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.”  Order at 3.  The Court also rejected the defendant’s assertion that the Supreme Court’s decision in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011), had altered this Circuit’s traditional conscious avoidance doctrine.

The Court issued two other summary orders today.

In United States v. Maye, 14-2450, the Court affirmed the conviction of a physician convicted on 33 counts of unlawfully dispensing and distributing controlled substances.  The Court held there was “ample” evidence from which the jury could have concluded that the defendant was not acting in good faith when approving prescriptions, including expert testimony regarding the usual course of medical practice; records that showed the defendant did not act consistent with the usual course of medical practice; evidence that showed the defendant never conducted in-person examinations of patients, authorized prescriptions without reviewing medical records on the basis of brief, or no, conversations with patients, did not make diagnosis prior to prescribing medication; and evidence regarding the quantities and type of medications he dispensed.  Order at 2.

In United States v. Espinoza, 15-984, the Court affirmed a 97-month sentence in a marijuana conspiracy case.  Mr. Espinoza challenged the district court’s application of U.S.S.G. § 3B1.1(b) following a determination that Mr. Espinoza was a manager or supervisor.  The Court affirmed, holding that the evidence at a co-defendant’s trial — which the district court concluded demonstrated that Mr. Espinoza was the main supplier of marijuana, rented a house for the packaging of marijuana, and directed shipments of marijuana to multiple states —  amply supported the conclusion that Mr. Espinoza was a manager or supervision within the meaning of U.S.S.G. § 3B1.1(b).

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