Erroneous application of sentencing enhancement is harmless when it had no effect on the sentence

Judge Hardiman opened United States v. Zabielski, No. 11-3288, (April 3, 2013) by noting that since United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines were no longer “diktats.” However, trial judges must still accurately calculate the Guidelines range and correctly rule on departure motions. Though failure to do so will usually result in the Court of Appeals vacating a sentence and remanding for a new sentencing hearing, a sentencing court’s omission in this regard might be so immaterial that the error will be held harmless.  The insignificance of such an error is why Mr. Zabielski’s sentence was left intact.

Mr. Zabielski pled guilty to a bank robbery. He handed a note to a teller demanding $10,000. When the teller asked him what account he wanted to withdraw the funds from, he made clear that he was robbing the bank. One of the clues the teller noticed was a bulge in his jacket that looked like it held a gun or knife; the other was his statement that he was in a hurry.  He made off with $4767.00. Later, he told several people about the robbery, including his mother, who told him to give the money back.  He mailed most of it back from another town.  Still, within two days of the robbery, when interviewed by law enforcement, he lied about his whereabouts at the time of the crime. He was indicted, and pled guilty. Although his motion for a downward departure was denied at first, his allocution persuaded the sentencing court he was remorseful, and he received a thirteen month downward departure, and a sentence of only twenty four (24) months. Mr. Zabielski then appealed. His central claim was that the sentencing court erroneously applied a two level enhancement for threat of death.

Reviewing past cases, the Court found that Mr. Zabielski’s actions during the robbery— the bulge, the command to hurry (“you have two minutes”)— was not clearly a threat of death, as least by pre-Booker precedent. However, as a result of Booker, such enhancements are not as significant as they were before. Therefore, the Court went on to determine whether or not the error was harmless, which in this meant assessing whether or not the enhancement affected the sentence. Enhancements, the Court noted, are meant to highlight some particular set of facts from the crime. Sentencing errors are likely to be harmless when it is clear from the record that when the sentencing court decided to vary from the Guidelines, or even when an enhancement is erroneously applied, the sentencing court understood the facts of a case, grasped their significance, and incorporated them into a just sentence.

In this case, the Court found that the sentencing court demonstrated an awareness of the crime, including Mr. Zabielski’s demeanor, appearance, and statements when he robbed the bank. It appreciated the “context surrounding” Mr. Zabielski’s conduct. There was a thorough analysis of 18 U.S.C. §3553(e) factors, and Mr. Zabielski received a big break. The sentence was one that fell below the range that would have applied without the enhancement. All of this rendered any threat from the imposition of the enhancement harmless. The Court did warn that in the future, absent a statement from a sentencing court that the enhancement had no effect on the imposed sentence, it will be hard to state that any erroneous application was harmless.

Mr. Zabielski also challenged the “substantial reasonableness” of the sentence. He complained of the sentencing court’s reliance on unsubstantiated assumptions about his criminal record, unsubstantiated assumptions about his criminal background, mental health, and drug abuse, and his being sentenced to an increased term of imprisonment to facilitate his rehabilitation. Applying its deferential standard of review, it rejected these claims.  Though the sentencing court made stray and possibly speculative statements about Mr. Zabielski’s supposed drug abuse and mental health problems, the Court found that when viewed in the context of the sentencing court’s entire statement of reasons, those statements were not central to the explanation for the sentence.  Moreover, Mr. Zabielski did not dispute that he used illegal drugs and drank alcohol. Also, Mr. Zabielski had received treatment for mental illness. The sentencing court’s remarks on the subject were in response to his arguments that he would not receive proper treatment for mental illness in prison. Mr. Zabielski’s sentence of twenty-four months for a bank robbery therefore stood.

Photograph of 500,000th error in Major League Baseball from the New York Times.