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Second Circuit Remands for Supplementation of Reasons for Leadership Role Sentencing Enhancement

In United States v. Ware, 2009 WL 2512321 (2d Cir. August 18, 2009), proving that you don?t always get what you pay for, a defendant convicted after trial of securities fraud, filed a pro se appeal, and - under plain error review, no less - won himself a remand so that the district court can either explain its reasons for applying a four-level leadership role enhancement to Ware's sentencing guideline range or resentence him. 

The Leadership Role Enhancement

The Guidelines provide a four-level upward adjustment under §3B1.1(a) if the defendant was an organizer or leader of a criminal activity that involved five or more participants, or was otherwise extensive.  A ?participant? is defined as someone who is criminally responsible for the offense, and therefore cannot include participants who were unwitting or lacked criminal intent.  A leadership enhancement based on the ?otherwise extensive? prong does not require that the participants be criminally liable themselves, but could be premised on a finding of less than five actual participants and the use of the unknowing services of many outsiders.  The district court must make specific findings as to why a role adjustment is made, and may not simply adopt the factual findings in the PSR, if those findings are inadequate.  

Holding

Here, the Court held that the district court?s findings were not specific enough.  There were only four obvious criminal participants in the scheme, and the Court refused to ?endorse the role enhancement on the basis of the government?s speculation as to what the sentencing judge had in mind? or on the basis of unidentified participants where there was ?no indication in the record that they could be criminally liable.?  In addition, it was not clear why the district judge thought the criminal activity was ?otherwise extensive.? This finding could not be based simply on the period of time spanned by the criminal activity, or the mere use of wire services, two factors mentioned by the district judge in imposing the leadership enhancement.  

So, the Court remanded for the district court to supplement the record with findings as to why the criteria of a leadership role enhancement were met here, or, if not, for resentencing.  I wonder if Mr. Ware will use the same ace lawyer he had on appeal....

Lawyers: Ulysses Thomas Ware (pro se); AUSAs Nicholas Goldin and Andrew Fish

Full post as published by New York Federal Criminal Practice on September 13, 2009 (boomark / email).