Second Circuit Remands for Resentencing to Consider Role Reduction under Amendment 794
On September 11, 2017, the Second Circuit (Parker, Carney, Stanceu) reversed by summary order the sentence of the defendant in United States v. Soborski (16-cr-3369). The panel remanded the case to the U.S. District Court for the Southern District of New York (Swain, J.) for resentencing so that the district court could consider whether Soborski should receive a minor-role reduction under an amendment to the Sentencing Guidelines.
Soborski, a former member of the Polish armed services, was recruited in 2013 to provide security and counter-surveillance services by individuals posing as Colombian drug traffickers. The individuals who recruited Soborski were in fact confidential sources running a sting operation for the United States government. Soborski pled guilty in February 2015 to conspiring to import five or more kilograms of cocaine into the United States and was ultimately sentenced to 108 months’ imprisonment, which reflected a downward variance from the Guidelines calculation.
The Second Circuit rejected as “weak” Soborski’s argument on appeal that the government “manipulated” his base offense level by constructing a sting operation that involved large amounts of fictional cocaine, noting that he willingly participated in a scheme that he thought involved “hundreds of kilos” of drugs.
Nonetheless, the court was persuaded by Soborski’s argument that the district court committed plain error where it was not clear that the court considered a significant Guidelines amendment related to a minor-role reduction (Amendment 794) that became effective in November 2015, shortly before Soborski’s sentencing. Under § 3B1.2 of the Guidelines, a defendant’s offense level is reduced by two levels if he was a “minor participant in any criminal activity,” four levels if a “minimal participant,” and three levels if falling somewhere between those two categories.
Amendment 794 stemmed in part from the Sentencing Commission’s concern – reflected in empirical research – that the minor-role reduction was being applied unevenly among districts and “more sparingly” than the Commission intended. The Amendment reflects an attempt to clarify the standards for a minor-role reduction and to bring increased uniformity to how the Guideline is applied.
Owing to these concerns, Amendment 794 added to the Guidelines a non-exhaustive list of factors a sentencing court should consider in analyzing whether a minor-role reduction is warranted and clarified that a defendant can still qualify for a reduction even if he played an “essential or indispensable role in the criminal activity.” Amendment 794 also explained the Sentencing Commission’s view that the defendant’s culpability should be determined by reference to the culpability of his or her co-conspirators in that criminal activity, not in comparison to all defendants who committed similar crimes. The Amendment was intended to address a split among the circuits on this issue and rejected the interpretation that had been favored in the Second Circuit.
Because it was not clear from the record that the district court considered the new standard for the minor-role reduction when it rejected the defendant’s argument (and, indeed, there were affirmative indications that it may have applied the pre-amendment standard), the Second Circuit remanded for resentencing so the court could consider the proposed role reduction and explain its decision with the benefit of the full guidance provided by Amendment 794.
It makes sense that the Second Circuit would remand under these circumstances, particularly in light of the fact that Amendment 794 reflects a change in how courts in the Second Circuit interpret § 3B1.2. Moreover, as the panel noted, the Sentencing Commission’s statement of reasons for issuing Amendment 794, which discussed the circuit split, only appeared in a separately bound supplement that the district court may not have seen. Although the terms “minor” and “minimal” would lose all meaning if they were applied with great frequency, Sentencing Commission statistics reflect that in FY 2016 only 8% of defendants received mitigating role reductions. One hopes that with the amendment and this remand that district courts will be more willing to consider mitigating role reductions in future cases. A published opinion would have helped with this “minor role publicity campaign” but the panel decided not to publish this decision.