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Guidelines Commentary Leads To Affirmance in Sentencing Appeal

In a short per curiam opinion in United States v. Lobo (Parker, Hall, Lohier), the Second Circuit affirmed the imposition of a Guidelines enhancement based on the importation of a controlled substance into the United States. 

Lobo, the son of a former president of Honduras, assisted a violent drug gang in the importation of cocaine into the United States.  He pleaded guilty to a violation of 21 U.S.C. § 963, which punishes the importation of drugs into the United States.  After his plea, Lobo contested the proposed application of a two-level enhancement set forth in U.S.S.G. § 2D1.1(b)(15)(C).  This provision applies when the defendant (i) receives an aggravating role enhancement under U.S.S.G. § 3B1.1, and (ii) is “directly involved in the importation of a controlled substance” in the United States.  The district court conducted a Fatico hearing and concluded that the enhancement was warranted based on the testimony of a cooperating witness and other corroborating evidence.

On appeal, Lobo renewed his argument that the enhancement should not apply because he was never physically present in the United States, nor was he “directly” involved in smuggling cocaine across the border.  Rather, his alleged role was limited to serving as a “security person” and to providing other logistical support to the organization.  Lobo argued that this type of activity was outside of the plain meaning of the word “directly.”  The Court of Appeals disagreed, pointing out that this interpretation was inconsistent with the relevant application notes in the Guidelines.  This commentary provides as follows:

Subsection (b)(15)(C) applies if the defendant is accountable for the importation of a controlled substance under subsection (a)(1)(A) of § 1B1.3. . . , i.e., the defendant committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused the importation of a controlled substance.

Based on his guilty plea, it was apparent to the Court that Lobo, at a minimum, aided and abetted the importation of cocaine.  Therefore, under the definition used in the commentary, Lobo participated directly in the transportation of drugs from South America, through Honduras, and ultimately into the United States.  This was sufficient for the enhancement to apply.

The Circuit also distinguished several unpublished decisions from other circuits—which involved a defendant that was either physically present in the United States or engaged in an affirmative step related to the controlled substance crossing the border—but do not foreclose the present application of the enhancement.  The Circuit also held that the evidence presented at the Fatico hearing was sufficient to support the enhancement.

There is some appeal to the notion advanced by Lobo that “direct involvement” should require involvement in the actual importation of the drugs into the United States.  But the definition used in the commentary in the Guidelines is broad and inconsistent with a requirement that the defendant play a specific role in the importation.  As the Circuit has held before, the application notes and commentary in the Guidelines are binding authority in applying the Guidelines, and here it supported affirmance.

-By Michael Schwartz and Harry Sandick