Case summaries and commentary on recently decided criminal law cases in the Third Circuit provided by Federal Defenders and CJA Panel Attorneys.
Thursday, April 04, 2013
Erroneous application of sentencing enhancement is harmless when it had no effect on the sentence
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.
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.
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
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.
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.