Role Away

United States v. Labbe, No. 08-0673-cr (2d Cir. December 4, 2009) (Newman, Pooler, Katzmann, CJJ)

About a week before Labbe’s sentencing, the district court issued a written Sentencing Opinion describing the sentence it was likely to impose. The Opinion included a 4-level role reduction for Labbe’s “minimal” participation and announced that “Labbe is hereby sentenced to ... 57 months.” The Opinion noted, however, that this was “subject to modification at the sentencing hearing.”

Before sentencing, the government sent a letter to the court objecting to the role reduction, but at the sentencing hearing itself the defense focused its arguments primarily on the loss calculations, apparently assuming that the judge had decided to keep the role reduction. The judge asked the government a few questions about the relative participation levels of Labbe and his co-conspirators, then announced that the “government’s argument and its reading of the guidelines with respect to the minor and minimal participants is right.” He imposed a sentence 30 months longer than that contained in the Sentencing Opinion.

On appeal, Labbe argued that the district court’s change of heart was not supported by adequate findings. The court of appeals agreed. It held that the Sentencing Opinion had given Labbe an “expectation” that he would be sentenced to 57 months. Under the advisory Guidelines, a court need not give notice of its intention to impose a non-Guideline sentence. But here, the Sentencing Opinion created an “expectancy” that was more like that created by the mandatory Guidelines and “gave rise to the need for notice that a significant change was likely” so that Labbe would have a chance to oppose the contemplated change.

The court did not rule on the merits because it concluded that the district court’s findings on the issue were insufficient for appellate review. The appellate court was uncertain whether the judge changed his mind because he (1) attributed more misconduct to Labbe than he had originally found, (2) was interpreting the guideline differently than before, or (3) had simply reassessed the significance of the facts under the same legal standard that he had used in the Sentencing Opinion.

The court accordingly remanded the case for a de novo sentencing, at which the defense - now alerted to the judge’s inclinations - would have a “full opportunity to argue for the adjustment.”

Feckless Enganderment

United States v. Legros, No. 05-2828-cr (2d Cir. June 17, 2008) (Jacobs, Calabresi, Sack, CJJ)

When police officers responded to a “shots fired” radio call, they encountered three men. One of them, Legros, ran off, and tossed a gun along the way. That gun matched several spent shell casings recovered from the scene. A jury convicted Legros of being a felon in possession of a firearm.

At sentencing, he received the statutory maximum, 120 months; this was a guideline sentence - the range was 110 to 137 - that included a four-level enhancement for possessing the gun in connection with another felony offense. The theory advanced by the probation department (obviously just serving as a mouthpiece for the government) was that Legros had been shooting at someone named Christopher Passius, in a gang-related retaliation.

Legros contested the enhancement and, at a sentencing hearing, the government introduced, through a police officer, the hearsay statement of a witness who said he had seen Legros fire the gun. The statement indicated that there was a “crisis between Chris [Passius] and Herb [Legros]” and that “Herb was firing in the air.”

Based on this, the district court decided that Legros had either committed felony “reckless endangerment” or “aggravated assault.” The circuit, however, held that the court’s findings could not support either conclusion.

Under New York state law, the only felony involving reckless endangerment requires “circumstances evincing a deprived indifference to human life” along with reckless conduct “which creates a grave risk of death to another person.” Accordingly, the district court was required to find both that Legros created a “grave risk of death” and that he acted with a “depraved indifference to human life.” But here, the district court made no mention of either of these elements, and relied instead only on the fact that Legros fired a gun in the air in “a neighborhood.”

The circuit agreed with these, as findings of fact, but held that they could not, “standing alone,” support a finding of felony reckless endangerment. Absent a “further explanation from the district court,” its application of the enhancement based on felony reckless endangerment could not be affirmed.

Nor did the district court’s findings support its alternative holding - that Legros committed felony “aggravated assault.” There is no such crime in New York, although Legros might have committed attempted assault in the first degree, a felony, if he in fact fired shots at Passius. Here, however, as with the reckless endangerment, the district court “did not mention the essential elements of the offense or identify facts in the record that satisfied them.” Firing a gun “in the air” cannot support a finding of attempted first-degree assault. Moreover, although the police found a bullet from Legros’ gun found in a car parked nearby, there was no evidence that Passius, or anyone else, was in or near the car when the gun was discharged.