Federal Judiciary

United States v. Espinoza, Docket No. 05-0711-cr (2d Cir. Jan. 11, 2008) (found here )

The PSR included a 4 level role enhancement in Espinoza's advisory Guidelines range.  At the sentencing hearing, his counsel asserted that no role enhancement should be applied but offered no evidence in support of the position.  Before imposing sentence, the Court asked if there were any objections or additions to the PSR, and Espinoza stated that he had none.  Accordingly, the district court imposed the sentence recommended by the PSR (360 months imprisonment) and, in its written judgment, noted that had adopted the PSR and the PSR's advisory Guidelines recommendation without change.

On appeal, Espinoza contended that his failure to object to adoption of the 4 level role enhancement at sentencing should be excused because district court did not state that at the sentencing hearing that it was indeed applying that role enhancement (it only did so in its written judgment).  The Second Circuit, however, found that:

It was clear from the arguments and the sentencing range discussed at the sentencing hearing, the PSR's application of the role enhancement to calculate the particular range under discussion, and the District Court's imposition of a sentence within that same range that the District Court had applied the role enhancement in question.

But that doesn't settle it because "while the adoption of the PSR in the written judgment satisfies a district court's obligation to make specific findings, it does not satisfy the additional requirement that the district court, 'at the time of sentencing, . . . state in open court the reasons for its imposition of the particular sentence.'" 

The Second Circuit chastised the district court for failing to do so -- "It should have done so irrespective of whether Espinoza lost the ability to challenge the District Court's error on appeal by failing to interpose a timely objection before that Court" -- but found that the district court's failure to do so was not plain error.