By Elena Steiger Reich & Harry Sandick
Defendant, 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 Defendant were in fact confidential sources running a sting operation for the United States government. Defendant pled guilty in February 2015 and was ultimately sentenced to 108 months’ imprisonment, which reflected a downward variance from the Guidelines calculation.
The Second Circuit rejected as “weak” Defendant’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 that the district court committed plain error related to a minor-role reduction. Under § 3B1.2 of the Guidelines, a defendant’s offense level is reduced by two levels if he was a “minor participant,” four levels if a “minimal participant,” and three levels if falling somewhere between those two categories.
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 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.
Although the terms “minor” and “minimal” would lose all meaning if they were applied with great frequency, (Sentencing Commission statistics reflect that 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.