862 F.3d 163
2d Cir.2017Background
- Miguel Delacruz pleaded guilty to a Hobbs Act (robbery) conspiracy after a DEA sting; government dismissed other counts against him. PSR calculated offense level 23 with acceptance-of-responsibility credit (guideline range 46–57 months); without that credit his guideline range was 63–78 months.
- Record shows Delacruz acted as driver/lookout for a planned armed robbery of drug couriers; surveillance and recordings placed him at planning meetings and on the night of the planned robbery driving a rented Buick with an empty suitcase and bag.
- Co-defendant Alex Velez cooperated with the government and testified at a Fatico hearing that Delacruz had prior street-level drug sales and that Delacruz made a recorded remark that one courier would "cry like a sissy."
- Delacruz (through counsel) disputed two PSR factual assertions: that he previously sold drugs and that he personally threatened to harm the courier; he maintained his role was driver/lookout and objected to the PSR entries and to the Fatico hearing on due-process grounds.
- The district court credited Velez on past drug dealing and construed Delacruz’s recorded remark as indicating willingness to participate in violence; the court denied the §3E1.1 acceptance-of-responsibility adjustment and sentenced Delacruz to 63 months imprisonment.
- On appeal the Second Circuit affirmed the district court’s ability to consider contested information and to credit Velez, but held the district court’s factual bases for denying acceptance-of-responsibility were clearly erroneous and vacated for resentencing.
Issues
| Issue | Delacruz's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether denial of §3E1.1 acceptance-of-responsibility credit was proper | Denial rested on clearly erroneous factual findings; he had pled guilty and admitted the offense conduct | Denial justified because Delacruz minimized his role and contested relevant conduct | Court: Denial was without foundation because key factual findings (that Delacruz told probation he was "just a lookout" and that he personally would inflict harm) were clearly erroneous; vacated and remanded for resentencing |
| Whether district court violated due process by holding a Fatico hearing into disputed PSR facts | Fatico hearing on uncharged past drug dealing violated due process | Hearing permissible; sentencing courts may consider wide range of information and must hold a hearing when disputed material facts exist | Court: Due process not violated; Fatico hearing proper because defendant had opportunity to contest allegations |
| Whether the district court could credit Velez’s testimony (cooperator) | Velez’s testimony was inconsistent and equivocal; court should not rely on it to deny credit | Court may make credibility determinations after seeing witness; Velez’s testimony supported some findings | Court: Crediting Velez was not per se improper, but district court should have explained credibility findings more carefully; appellate court will not overturn credibility findings absent clear error |
| Whether past uncharged drug dealing could justify denial of §3E1.1 credit | Prior uncharged drug sales are unrelated relevant conduct; refusal to admit uncharged past dealing cannot be grounds to deny §3E1.1 | Past drug dealing evidence supported overall culpability and sentencing analysis | Court: Past drug dealing (uncharged) could inform §3553(a) factors but cannot serve as a proper basis to deny §3E1.1 when the denial rests on disputed factual findings unrelated to the offense of conviction |
Key Cases Cited
- Williams v. New York, 337 U.S. 241 (Supreme Court) (sentencer may consider broad information about defendant at sentencing)
- Wasman v. United States, 468 U.S. 559 (Supreme Court) (fullest information about defendant is relevant to sentencing)
- Apprendi v. New Jersey, 530 U.S. 466 (Supreme Court) (limits on judge-found facts affecting statutory maximums; cited for sentencing principle)
- Gall v. United States, 552 U.S. 38 (Supreme Court) (sentencing review: calculate Guidelines, then consider §3553(a) factors)
- United States v. Fatico, 603 F.2d 1053 (2d Cir.) (authorizing evidentiary hearing on disputed sentencing facts)
- United States v. Oliveras, 905 F.2d 623 (2d Cir.) (Fifth Amendment limits denying §3E1.1 credit for refusal to admit unproven conduct)
- United States v. Austin, 17 F.3d 27 (2d Cir.) (cannot deny acceptance credit based on refusal to admit conduct beyond offense of conviction)
- United States v. Santiago, 906 F.2d 867 (2d Cir.) (same principle for uncharged past conduct)
- United States v. Kumar, 617 F.3d 612 (2d Cir.) (paramount factor for §3E1.1 is truthful admission of conduct of conviction)