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Showing posts from July, 2005

‘Use of a minor’ enhancement and footnote about Feeney Amendment

In United States v. Pojilenko, No. 03-4446 (3d Cir. 7/27/05), the Third Circuit determined that, in order to apply the ‘use of a minor’ enhancement under U.S.S.G. § 3B1.4, the district court must find an affirmative act, rather than just mere participation in a crime with a minor.

Also, the Court disagreed with the Eleventh Circuit, and ruled that where a defendant participates in a conspiracy, and a member of that conspiracy "used a minor" as described in § 3B1.4, such use could not be attributed to the defendant, even if the co-conspirator's ‘use of a minor’ was foreseeable. This holding may have greater ramifications upon the government's ability to assign relevant conduct where the justification is simply vicarious liability under conspiracy law.

Interestingly, as noted on www.sentencing.typepad.com, the Court also dropped the following footnote:
Relying on United States v. Detweiler, 338 F.Supp.2d 1166 (D.Or., 2004), Pojilenko also challenges on separation of powe…