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Second Circuit Reaffirms That Sentencing of Coconspirator Must Focus on Individual Culpability

In United States v. Bladimir Rigo, 15-1914, the Second Circuit remanded for resentencing by summary order, finding that the District Court plainly erred when it sentenced the defendant based on the criminal activity of coconspirators without first making certain particularized “relevant conduct” findings about that activity.  On June 2, 2015, the U.S. District Court for the Southern District of New York (Sweet, J.) sentenced Bladimir Rigo for his involvement in a conspiracy to commit healthcare fraud and unlawfully distribute prescription pills.  The District Court applied a $2.9 million loss calculation to its determination of Rigo’s sentence, some portion of which may have been based on the acts of Rigo’s coconspirators.  The District Court concluded that because Rigo “pled guilty to participating in a conspiracy, he is equally liable for the acts of his coconspirators, including others who may have written [the records found in Rigo’s home], and the plans and intentions of the conspiracy, whether consummated or not.”  United States v. Rigo, 86 F. Supp. 3d 235, 242 (S.D.N.Y. 2015). 

The Second Circuit held that this was plain error.[1]  Under longstanding federal sentencing law, a defendant can only be sentenced based on the activity of a coconspirator if the court makes two particularized findings: “(1) that the scope of the activity to which the defendant agreed was sufficiently broad to include the relevant, coconspirator conduct in question; and (2) that the relevant conduct on the part of the co-conspirator was foreseeable to the defendant.”  United States v. Getto, 729 F.3d 221, 234 (2d Cir. 2013).  The District Court failed to make either of these findings; instead, it erroneously relied on the substantive law of conspiracy, which is significantly broader than the sentencing law, to hold the defendant accountable for all losses attributable to his coconspirators.  The Second Circuit reiterated that, “the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.”  (internal quotation marks and citation omitted). 

Although not precedential, the order is a useful reminder of the applicable law in this area.  It is also worth noting that relevant conduct was the subject of a revision in the November 1, 2015 Guidelines.  See U.S.S.G. Amendment 790 (“restructur[ing] the guideline and its commentary to set out more clearly the three-step analysis a court applies in determining whether a defendant is accountable for the conduct of others in a jointly undertaken criminal activity”).  Also, the most recent set of Guidelines amendment revised the definition of intended loss in Section 2B1.1.  Rather than define intended loss to include “the pecuniary harm that was intended to result from the offense,” it now is defined to include only “the pecuniary harm that the defendant purposely sought to inflict.”  U.S.S.G. Amendment 792 (emphasis supplied).  The latter amendment in particular is meant to focus the court on the culpability of an individual defendant who may have played only a limited part in a much larger scheme.

The Second Circuit also vacated and remanded by summary order in a second criminal case, United States v. Michael McCall, in which the panel determined that the defendant’s plea agreement was “based on” a Guidelines range and he was therefore eligible for resentencing pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the Guidelines, which lowered the base offense levels for certain drug quantity calculations.  Under Section 3582(c)(2), a court may grant a motion for a sentence reduction if, among other things, the defendant  “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  The defendant, who brought his appeal pro se, argued that his prison sentence was “based on” a Guidelines range referenced in his plea agreement, even though all parties and the court agreed at sentencing that the range had been calculated incorrectly.  The Second Circuit agreed, concluding that, by accepting the parties’ plea agreement,  “the district court was bound by its terms, including the Guidelines range,” and “[b]ecause the sentence in the plea agreement (although calculated incorrectly) was based on the Guidelines range chosen by the parties and because the district judge was bound by this calculation when he accepted the agreement,” the defendant is eligible for resentencing.  The Court’s flexible approach to the relevant statute provides a fair-minded benefit to this particular defendant.

 

[1]  The Second Circuit applied the “plain error” standard of review as it appears that defense counsel failed to raise this argument before the District Court.  See Fed. R. Crim. P. 52(b). 

-By Elena Steiger Reich and Harry Sandick