US v. Miguel Delacruz, 2nd Cir., 7/5/17: Another Important Sentencing Opinion out of the 2nd Circuit; Reversal of Denial of Credit for Acceptance of Responsibility

July 6th, 2017
Elizabeth Franklin-Best

The Second Circuit just released its second very important federal sentencing opinion in the past week.  See US v. Scarpa, Jr. (2nd Cir, 6/22/17) (reversal of substantial assistance reduction granted by sentencing judge). Because I’m about to go on vacation and am feeling a bit lazy, I’ll cut to the chase– Delacruz was involved in a planned robbery of who he thought were drug dealers (but were actually government snitches).  He had a lesser-role than others.  The PSR contained statements that Delacruz objected to, and the district court held a Fatico hearing (a hearing where the district court takes testimony regarding the factual bases of disputed issues in sentencing).  Based on PSR and evidence presented at Fatico hearing, district court denied 2-level downward adjustment for acceptance of responsibility.  The Second Circuit reversed finding the district court judge predicated that denial of acceptance on clearly erroneous findings of fact.

What I particularly like about this opinion is that it details the breadth of information that a district court judge can consider in addressing sentencing issues, but also the court’s limitations:

“First it has long been established that the Due Process Clause does not restrict the court with respect to the type of information it may consider for purposes of sentencing.  See, e.g., Williams v. New York, 337 U.S. 241, 246 (1949); Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (“[N]othing in th[e] history [of the common law of sentencing] suggests that it is impermissible for judges to exercise discretion– taking into consideration various factors relating both to offense and offender– in imposing a judgment within the range prescribed by statute.”  Williams reflects “the underlying philosophy of modern sentencing, ” which ” is to take into account the person as well as the crime by considering ‘information concerning every aspect of the defendant’s life.'” Wasman v. United States, 468 U.S. 559, 572 (1984) (quoting Williams, 337 U.S. at 250).…18 U.S.C. §3553(a)(1) further states that “[n]o limitation shall be placed on the information concerning the background, character, and conduct a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”  Id. at 3661.  “‘[H]ighly relevant– if not essential– to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.”

The Court further noted that the Due Process Clause requires that a defendant not be sentenced on the basis of “materially untrue” assumptions or “misinformation,” and that a defendant have an opportunity to respond to material allegations that he disputes, in order that the court does not sentence him in reliance on misinformation.  Townsend v. Burke, 334 U.S. 736, 741 (1948); see also Guidelines §6A1.3(a) (“When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor.”)

Defendants are entitled to a two-step decrease in offense level if the defendant “clearly demonstrates acceptance of responsibility for his offense.”  Guidelines §3E1.1(a).  In deciding whether a defendant qualifies for the adjustment, the district court should consider whether the defendant has truthfully admitted to conduct comprising the offense(s) of conviction, and truthfully admitted or not falsely denied any relevant conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct).  Importantly, a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under the statute.  Additionally, 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.  United States v. Oliveras, 905 F.2d 623, 631 (2d Cir. 1990).

So all this is really great language for federal criminal practitioners.  First, just about anything that is remotely mitigating can be presented to the court and must be considered by the judge in imposing a sentence. But also, challenging the government’s assertions regarding relevant conduct cannot be used against a defendant in determining adjustments for acceptance of responsibility. I think this opinion contains excellent language for how a court is to cabin its discretion in what is arguably the most important part of the criminal conviction process.  Excellent advocacy by Louis R. Aidala who represented Delacruz at the plea and appellate level.

And now, this is where I’ll be if anyone is looking for me…

 

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