Manager-Leader– D.C. Circuit vacates enhancement for trial judge’s failure to make adequate findings: United States v. Martinez-Vega, _ F.3d _ (D.C. Circuit, No. 10-3083, June 24, 2016).
The D.C. Circuit, in affirming the convictions of two alleged members of the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) paramilitary organizations vacated the sentence handed out to one appellant.
In United States v. Martinez-Vega, the district court had increased Martinez Vega’s base offense level by three points for being a “manager or supervisor” in the narcotics conspiracy. Martinez Vega argued on appeal that the trial judge’s findings fell far short of what was necessary to demonstrate that he has supervised other participants in the conspiracy. (Slip Op. at 35). In a per curiam opinion, a unanimous Circuit panel (Brown, Millett, & Ginsburg, JJ), found that the district court had failed to make adequate findings to justify the 3-point role in the offense enhancement. (Id. at 35-39).
Explaining that under United States v. Bapack, 129 F.3d 1320, 1324 (D.C. Cir. 1997), “[t]he Government must demonstrate that a sentencing enhancement is warranted by a fair preponderance of the evidence,” the Government “had to prove by a preponderance of the evidence that Martinez Vega (i) managed or supervised (ii) at least one “participant” who was criminally responsible for an offense (iii) in a criminal activity that involved five or more participants or was otherwise extensive.” (Slip Op. at 35-36, 37). Although the “record thus amply supported the district court’s conclusion that Martinez Vega had sufficient control and authority over other individuals to be a manager or supervisor,” and thereby satisfied the first element, “absent from the district court’s analysis [was] any consideration of the second element necessary for the enhancement: whether any of the persons allegedly supervised by Martinez Vega qualified as a “participant” under Section 3B1.1.” (Slip Op. at 37). Notably, at the sentencing hearing, the Government had asserted that “any individuals who are engaged in moving cocaine and weapons to a guerilla group in the jungles in Colombia would have, by definition, been aware of the criminal nature of the their activities, and they would have been participants as understood by the guidelines,” to which Martinez Vega had countered below that “the Government had not shown that the workers who helped him load and unload sacks would have known that the sacks contained cocaine base or that it was being exported to the United States.” (Id. at 38). The district court never addressed the issue and made no finding that one or more of those supervised individuals had the requisite criminal mens rea and culpability to count as “participants.” (Id.)
The trial judge’s findings on the third element also were found wanting. In particular, the district court had found that Martinez Vega’s “‘activities were otherwise quite extensive in this area’ of ‘transport[ing] . . . narcotics and weaponry.’” (Id. at 38-39). But that begged the question of “the scope of the criminal activity as a whole, not the defendant’s particular involvement in it.” (Id. at 39) (citing U.S.S.G. § 3B1.1(b)) (emphasis by court). Under Circuit precedent, “the criminal activity must either involve ‘five or more participants’ or be ‘otherwise extensive’ in that it involves fewer than five criminally culpable ‘participants,’ but could include a number of ‘unknowing outsiders.’” (Slip Op. at 39) (citing United States v. Wilson, 240 F.3d 39, 49 (D.C. Cir. 2001)). The lower court made no finding on that third element, either.
Accordingly, Martinez-Vega’s 330-month sentence was vacated and remanded. The court of appeals took pains to “emphasize that the review on remand is constrained to the existing record.” (Id. at 39).
Congratulations to Richard Gilbert, whose recent return from a much-deserved sabbatical has been capped with a satisfying result.
–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit. (Full disclosure: I briefed and argued the above-referenced Wilson decision.)