Case Information
*1 16-3369
United States v. Hunter (Soborski)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11 th day of September, two thousand seventeen.
P RESENT :
B ARRINGTON D. P ARKER ,
S USAN L. C ARNEY ,
Circuit Judges ,
T IMOTHY C. S TANCEU ,
Chief Judge, U.S. Court of Int’l Trade .*
_____________________________________
U NITED S TATES OF A MERICA ,
Appellee , v. No. 16-3369
S LAWOMIR S OBORSKI , AKA S EALED D EFENDANT 5, AKA
G ERALD ,
Defendant-Appellant ,
J OSEPH M ANUEL H UNTER , AKA S EALED D EFENDANT 1,
AKA F RANK R OBINSON , AKA J IM R IKER , AKA R AMBO ,
AKA J OSEPH H UNTER , M ICHAEL F ILTER , AKA S EALED
D EFENDANT 2, AKA P AUL , T IMOTHY V AMVAKIAS , AKA
* Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation.
S EALED D EFENDANT 3, AKA T AY , D ENNIS G OGEL , AKA
S EALED D EFENDANT 4, AKA D ENNIS G OEGEL , AKA
N ICO , A DAM S AMIA , AKA S AL , AKA A DAM S AMIC , C ARL
D AVID S TILLWELL , AKA D AVID S TILLWELL ,
Defendants .**
_____________________________________
F OR D EFENDANT -A PPELLANT : William J. Stampur, Stampur & Roth, New
York, NY. F OR A PPELLEE : Emil J. Bove, III, Michael D. Lockard,
Brian R. Blais, Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of New York (Swain, J .).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the sentence imposed by the District Court on September 13, 2016, and entered as a part of the September 22, 2016 judgment is VACATED , and the cause REMANDED for resentencing consistent with this order.
Defendant-Appellant Slawomir Soborski appeals the sentence he received after pleading guilty to conspiring to import five or more kilograms of cocaine into the United States. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, to which we refer only as necessary to explain our decision.
Soborski, a former member of the Polish armed forces trained as a sniper, was one of four men recruited in 2013 to provide “counter-surveillance” and “security” services by individuals who held themselves out as Colombian drug traffickers but who were in fact confidential sources running a sting operation for the United States government. Soborski was told he would be providing his services in connection with drug transactions involving “tons ** The Clerk of Court is directed to amend the caption to conform to the above. *3 of cocaine and millions of dollars” and possibly “assassinations.” Presentence Investigation Report dated May 4, 2015 (“PSR”) ¶ 30. Throughout 2013, Soborski was asked to provide, and did provide, security and counter-surveillance for meetings during which the participants trafficked, or discussed trafficking, illegal arms and narcotics. On one occasion in June 2013, Soborski provided surveillance of an airplane and observed it being loaded with what he was told was 300 kilograms of cocaine to be transported from the Caribbean to New York.
Soborski was arrested in Estonia for these activities in September 2013 and held by Estonian authorities until his extradition to the United States in April 2014. On February 6, 2015, without having entered into a plea agreement with the government, Soborski pleaded guilty to conspiring to import five or more kilograms of cocaine into the United States, in violation of 21 U.S.C. §§ 959, 960(a)(3), and 960(b)(1)(B). The Probation Office recommended the following calculations under the Sentencing Guidelines: Starting from the base offense level of 36, it added two levels under § 2D1.1(b)(3)(A) of the Guidelines for the involvement of the airplane; subtracted two levels under § 2D1.1(b)(17) because Soborski met the “safety valve” criteria under § 5C1.2(a); added two levels under § 3B1.3 because of Soborski’s use of his special training; and subtracted three levels under § 3E1.1 for Soborski’s acceptance of responsibility. The total offense level of 35, combined with Soborski’s criminal history of category I, yielded a recommended range of 168-210 months’ imprisonment.
The District Court adopted the Probation Office’s calculations, with the exception of the enhancement for the involvement of the airplane. It denied Soborski’s request for an offense level reduction under § 3B1.2 for the minor role that, according to Soborski, he played in the conspiracy. The District Court concluded that the reduction was inapplicable because it found that Soborski willingly participated in the conspiracy with full knowledge of its nature and scope. The court then noted that the Guidelines range under Soborski’s total offense level of 33 was 135-168 months. It ultimately varied downward from the Guidelines range and imposed a sentence of 108 months, citing Soborski’s military service, his age, and the harsh conditions he endured while confined in Estonia before extradition.
Soborski has appealed his sentence. He does not challenge the factual findings in the *4 PSR, which were adopted in relevant part by the District Court. Rather, he contends that the District Court gave inadequate consideration to his arguments that: (1) the government effectively “manipulated” his base offense level under the Guidelines by creating a sting operation in which large “fictional” quantities of drugs were purportedly involved; and (2) he should receive an offense level reduction because his role in the conspiracy was minor. For the reasons set out below, we find Soborski’s sentencing manipulation argument unpersuasive. As to the role reduction, however, our review of the record leaves us uncertain about whether the District Court applied the correct standard in denying the reduction. We therefore vacate the sentence and remand for resentencing. Although the specific argument Soborski has made with respect to the role reduction was not preserved, the plain error standard has been met here. We find it unnecessary to address now Soborski’s additional argument that his sentence was substantively unreasonable.
I. Standard of review
“We review a sentence for procedural and substantive reasonableness, which is akin to
a deferential abuse-of-discretion standard.”
United States v. McCrimon
,
II. Sentencing factor manipulation
Soborski contends that the District Court erred procedurally by not discussing at sentencing Soborski’s argument that a lower sentence was warranted because the government engaged in improper “sentencing factor manipulation” that increased his base offense level under the Guidelines. Appellant’s Br. 21. He asks that we remand the case for resentencing so that the District Court may reconsider his argument and make specific findings in support of *5 whatever conclusion it reaches. We decline to remand the case on this ground.
Under the theory advanced by Soborski before the District Court, the source of the “manipulation” was the “completely fictional” quantities of cocaine that the government, through its sting operation, led Soborski to believe were involved in the drug trafficking operation that was facilitated by his actions. Id. at 22. According to Soborski, his mere awareness of the quantities that were purportedly being trafficked “did not reflect any desire on [his] part to traffic in specific quantities.” Id. Thus, he contends, the government’s choice of such large fictional quantities unfairly affected his Guidelines calculation. On appeal, he argues that the District Court erred by offering no explanation of why it declined to take the alleged manipulation into account in deciding the appropriate sentence.
While it is true that the District Court did not discuss Soborski’s manipulation
argument during sentencing, we see no basis to remand for reconsideration of that argument.
The District Court was no doubt aware of the manipulation argument, which was briefed in
the sentencing memoranda it received from Soborski and the government. The absence of
discussion of the manipulation argument at sentencing is not error in itself or even reason to
believe that the argument was ignored: the District Court was not required during sentencing
to “expressly parse or address every argument . . . that [Soborski] advanced.”
United States v.
Pereira
,
On the record presented here, we think it very likely that the District Court omitted
discussion of the manipulation argument not because of a failure to consider it, but because it
was a weak argument about which there was little to say. Soborski had not challenged the
PSR’s finding, later adopted by the District Court, that he willingly participated in the
conspiracy after being told that the conspiracy would entail trafficking “hundreds of kilos of
illegal drugs.” App. 186. At sentencing, Soborski could lawfully be held responsible for those
drug quantities, notwithstanding that the “idea of [the quantities] originated with the
[g]overnment” as part of a sting operation.
See United States v. Cromitie
,
For these reasons, we decline to remand the case for the District Court’s explicit consideration of Soborski’s sentencing manipulation theory.
III. Section 3B1.2 role reduction
Soborski also argues that the District Court erred procedurally by conducting an inadequate analysis of whether he qualified for a reduction in his Guidelines offense level by virtue of his “minor role” in the conspiracy. Appellant’s Br. 19. We express no view as to appropriateness of applying a minor-role reduction here. But we agree with Soborski, for reasons we will explain, that remand is required here. As to Soborski’s minor-role argument, unlike his sentencing manipulation contention, the record reflects that the District Court considered this issue, but not that it was aware of a significant Guidelines amendment that became effective shortly before Soborski’s sentencing (Amendment 794). We therefore vacate Soborski’s sentence and remand for resentencing to ensure that the District Court has had an opportunity to consider the proposed role reduction, and to explain its decision, with the benefit of the full guidance provided by the recent Guidelines amendment.
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. U.S.S.G. § 3B1.2. Amendment 794, which became effective in November 2015, less than a year before Soborski’s sentencing, modified significantly—especially within this Circuit—the factors that a district court should consider in deciding whether to apply the reduction. It added to the Guidelines commentary the following non-exhaustive list of factors that the district court “should consider” among the “totality of the circumstances”:
(i) the degree to which the defendant understood the scope and structure *7 of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal activity.
U.S.S.G. app. C, amend. 794 (amending U.S.S.G. § 3B1.2 cmt. n.3(C)). The amendment also clarified that a reduction for a minor role is not necessarily precluded by a defendant’s performance of “an essential or indispensable role in the criminal activity,” and that a defendant with an essential or indispensable role may still receive a role reduction if he or she was “substantially less culpable than the average participant in the criminal activity.” Id. Finally, in the commentary, the Sentencing Commission meaningfully changed the phrase “substantially less culpable than the average participant” to “substantially less culpable than the average participant in the criminal activity.” Id.
Explaining its reason for adding the words “in the criminal activity,” the Commission
described a circuit split over the meaning of “the average participant”: some circuit courts
interpreted it to mean the average among those “participat[ing] in the criminal activity at issue
in the defendant’s case,”
id.
, while other circuits—including ours—looked to the average
participant among “the universe of persons participating in similar crimes,”
id.
(citing
United
States v. Rahman
,
We give the Commission’s “interpretation of its own Guideline controlling weight
unless it is plainly erroneous or inconsistent with the regulation or violates the Constitution or
a federal statute.”
United States v. Lacey
,
In September 2016, denying Soborski’s request for a minor-role reduction, the District Court stressed that Soborski understood the full scope of the criminal enterprise he was joining. Soborski’s understanding, the court observed, “distinguishe[d] . . . Soborski from a mere courier or low-level participant in a larger criminal enterprise” and was “a factor worthy of consideration” under “comment 3(i) of Section 3B1.2.” App. 164. The District Court did not discuss the relative culpability of others involved in the specific criminal enterprise at issue in the case, nor did it cite any of the other listed factors added to the § 3B1.2 commentary by Amendment 794.
The District Court’s failure to mention more than one of the factors listed in the
§ 3B1.2 commentary would probably not, by itself, be cause for remand. To be sure, reliance
on only one factor in deciding whether to apply a minor-role reduction under would stand in
tension with the “totality of the circumstances” approach directed by the commentary, an
approach that is further reflected in the new list of factors that a court “should consider.”
U.S.S.G. app. C, amend. 794. We are mindful, however, that the commentary does not
mandate a specific multi-factor analysis,
[1]
and that a district court is (as we have said) generally
presumed to have properly considered the relevant provisions of the Guidelines as long as the
court is aware of those provisions and “nothing in the record indicates misunderstanding” of
*9
them.
United States v. Fleming
,
We have little doubt that the District Court correctly utilized the November 2015 version of the Guidelines containing the modified version of § 3B1.2: the District Court said that it “used the November 2015 edition” of the Guidelines. App. 185. And, in discussing § 3B1.2, it mentioned “comment 3(i),” likely a reference to comment 3(C)(i), which did not exist in earlier versions. App. 164. But a judge familiar with the November 2015 edition of the Guidelines would not necessarily be aware of the Sentencing Commission’s statement of reasons for issuing Amendment 794, which appears in a separately bound supplement. The Commission’s statement declares the Commission’s position with respect to the circuit split described above, but the position is much less evident from merely the addition of the phrase “in the criminal activity” to the relevant section of the Guidelines Manual itself.
The record thus leaves us unsure about whether the District Court knew that Amendment 794 rejected the “universe of persons” standard applied by our precedents under the older version of the § 3B1.2 commentary. A few circumstances suggest that the District Court may have compared Soborski’s role to the universe of people participating in similar crimes, as our Court previously instructed. First, the District Court contrasted Soborski with “ a mere courier or low-level participant in a larger criminal enterprise,” App. 164 (emphasis added), language suggesting that the District Court did not have in mind couriers or low-level participants in the specific conspiracy in which Soborski participated. Second, the transcript of the sentencing proceeding offers no countervailing indication that the District Court did draw comparisons within the conspiracy: the District Court did not reference any such comparisons in discussing the § 3B1.2 role reduction.
Third, the procedural history of this case made a misunderstanding of Amendment
794’s full import unusually likely here. Amendment 794 did not go into effect until November
*10
1, 2015,
after
many of the presentence proceedings.
[2]
On January 22, 2015, the government
issued a letter advising the defense of the government’s views regarding the application of the
Guidelines, pursuant to
United States v. Pimentel
,
Even events in this case after Amendment 794 went into effect leave us uncertain whether the District Court was alerted to the Commission’s new position with respect to comparisons of culpability. The government’s November 5, 2015 sentencing memorandum made no mention of Amendment 794. Indeed, the government still, in its brief in this appeal, has not articulated a position with respect to Amendment 794. Following postponement of the sentencing hearing, the defense filed a four-page supplemental sentencing memorandum on September 6, 2016, again not addressing Amendment 794. Soborski was sentenced on September 13, 2016, without any discussion of Amendment 794 during the hearing.
In light of all the circumstances we have identified and despite the District Court’s care
and experience, the court’s statement of its reasons for rejecting a role reduction leaves us with
substantial doubt about whether it applied the new standard. We think therefore that the
proper course is to vacate the sentence and remand the case to the District Court for
resentencing, to ensure that the District Court has had an opportunity to consider the
proposed role reduction, and explain its decision, with the benefit of the full guidance
*11
provided by Amendment 794.
See, e.g.
,
United States v. Cossey
,
IV. Plain error
The government asserts that Soborski failed to raise the Amendment 794 issue before
the District Court and therefore, to merit resentencing, must show that the District Court
committed plain error: that is, the error must be “clear or obvious, rather than subject to
reasonable dispute”; must have “affected [Soborski’s] substantial rights, which in the ordinary
case means it affected the outcome of the district court proceedings”; and must “seriously
affect[] the fairness, integrity or public reputation of judicial proceedings.”
United States v.
Marcus
,
Amendment 794 itself is not ambiguous nor its significance subject to reasonable dispute. The Commission spoke quite clearly in its rejection of our precedent concerning the “average” participant. And denying under the incorrect standard Soborski’s request for a Guidelines role reduction—which we think may well have happened—would seriously affect Soborski’s rights and the fairness of the proceedings against him. The potential sentencing consequences are large: the parties agree that applying a minor-role reduction here would ultimately lower Soborski’s total offense level from 33 to 28, moving the recommended sentencing range from 135-168 months’ imprisonment to 78-97 months’ imprisonment.
We do not know whether the District Court, applying the updated standard on remand,
will grant a role reduction, nor do we direct the District Court to impose any particular
sentence. But the Guidelines are an important anchoring point in sentencing determinations,
and a range of 78-97 months would be well below even the 108-month sentence originally
imposed by the District Court after a significant downward variance. We therefore find the
plain error standard to be satisfied here.
See Molina-Martinez v. United States
,
V. Substantive reasonableness
Having identified a procedural error warranting remand, we do not reach Soborski’s challenge to the substantive reasonableness of his sentence. See United States v. Cavera , 550 F.3d 180, 190 (2d Cir. 2008) (en banc).
* * *
Accordingly, we VACATE Soborski’s sentence and REMAND the cause for resentencing consistent with this order.
F OR THE C OURT : Catherine O’Hagan Wolfe, Clerk of Court
Notes
[1] Citing
United States v. Quintero-Leyva
,
[2] The District Court was correct to apply the version of the Guidelines in effect at the time of
sentencing, unless doing so violated the
Ex Post Facto
Clause.
See
18 U.S.C.A. § 3553(a)(4)(A)(ii);
U.S.S.G. § 1B1.11;
Peugh v. United States
,