Federal Judiciary

United States v. Gomez, No. 09-4412-cr (2d Cir. Nov. 23, 2010) (found here)

Gomez appealed his 150 months sentence that followed his plea of guilty to an eight-count indictment charging a conspiracy to import and distribute heroin.  Among other things, Gomez argued that the district court erred in applying a role enhancement because it failed to make any particularized finding in open court regarding the enhancement.

The Second Circuit agreed -- Even finding that the district court had committed plain error (that is, procedural error).  In particular, the district court neither adopted the factual findings in the PSR nor made any specific factual findings to support the sentence enhancement -- two well-established ways that the district court could have supported its finding of a role enhancement.  The Second Circuit therefore remanded to the district court for it to either make specific factual findings supporting the role enhancement, or sentence Gomez without the role enhancement.

Note: Gomez must have entered an "open plea" -- that is, he likely had no plea agreement.  Otherwise, the government likely would have relied on the appellate waiver in the standard plea agreement to move to dismiss his appeal.  Or, perhaps, his appeal was viable because his sentence was outside of the range provided for in the appeal waiver clause of his plea agreement.