Federal Judiciary

United States v. Lee, No. 06-5043-cr (2d Cir. Jan. 18, 2008) (found here)

On appeal, Lee claimed that the district court's sentence was procedurally unreasonable because it miscalculated the advisory Guidelines offense level.  And the Second Circuit agreed because the district court had made too generalized a finding about the victims.  Specifically, it was "concerned that the district court's findings in connection with the vulnerable victim enhancement were not adequately supported by the factual record, and that the court may have engaged in the type of class-based generalizations that we cautioned against in United States v. McCall, 174 F.3d 47, 49 (2d Cir. 1998)."  The Second Circuit also was concerned with "the district court's reliance on a double-hearsay statement in the PSR concerning the victim's alleged past sexual victimization as a basis for concluding that she was particularly susceptible to the crimes Lee committed against her."  Vacated and remanded for resentencing.

Lee is important, even though it's an unpublished.  I've always found the vulnerable victim enhancement to be a little too soft and squishy.  Seems the Second Circuit sees things the same way.  But, more importantly, the "double-hearsay" issue it identifies indicates that there are at least some limits on the factual information a court may consider a sentencing.  Defense lawyers should keep Lee in mind when dealing with sentencings in which extraneous factual material is coming in against a defendant.