Tuesday, April 27, 2021

District Court procedurally erred in rejecting leadership and obstruction enhancements and neither error was harmless. Yet, each enhancement required further factfinding so that the Third Circuit would not order these enhancements be applied on remand either.

 In United States v. Francis Raia, 2021 WL 1257790, Appeal No. 20-1033 (3d Cir. Apr. 6, 2021), https://www2.ca3.uscourts.gov/opinarch/201033p1.pdf, the Third Circuit vacated the sentence and remanded for resentencing. Raia was convicted of a conspiracy to bribe voters. The District Court declined to impose two enhancements sought by the government: (1) a 4-level “organizer, leader, manager, or supervisor” enhancement under U.S.S.G. § 3B1.1(a), The Court rejected the 4-level enhancement because there was no evidence of any consequence for disobedience, but it found a 2-level enhancement applied. (2) a 2-point obstruction enhancement under § 3C1.1. The Court did not make findings about falsity, materiality, and willfulness because there was no evidence clearly corroborating the three incredible or biased cooperators. 

The District Court found the total offense level was 14, the guideline range was 15 to 21 months, and imposed a sentence of three months. The Third Circuit agreed that the District Court committed procedural error in not applying both of these enhancements. When criminal activity involves 5 or more participants, a trial court can only apply a 4-level enhancement, a 3-level enhancement, or no enhancement. See United States v. Kirkeby, 11 F.3d 777, 778–79 (8th Cir. 1993). Raia conceded the 2-point enhancement was error. For obstruction, the Third Circuit requires a Court to make explicit factual findings as to each element when the government seeks to have the enhancement applied, even when the district court declines to apply it, because such findings are necessary for meaningful appellate review. United States v. Napolitan, 762 F.3d 297, 314-15 (3d Cir.  2014).

The Court would not instruct the District Court to impose either enhancement. The 4-level enhancement required additional factfinding into control or degree of planning that would distinguish between “organizer or leader” and “manager or supervisor.” The element of falsity to prove obstruction was not clear from the record because the fact that Raia instructed his campaign workers to bribe voters was not necessarily implicit in the general verdict. 

However, neither did the Court find either error to be harmless. There are two instances where the proponent of maintaining the sentence can assure an appellate court “that an erroneous Guidelines calculation did not affect the sentencing process and the sentence ultimately imposed.” See United States v. Langford, 516 F.3d 205, 219 (3d Cir. 2008)). First, an erroneous calculation is harmless where a district court explicitly states that it would have imposed the same sentence even under the correct Guidelines range. Second, a guidelines miscalculation is harmless where the district court “chose to disregard the Guidelines as too severe in such a way that we can be certain that the miscalculation had no effect on the sentence imposed.” Langford, 516 F.3d at 218. Raia could not meet the second instance where the District Court did not follow the post-Booker three step sentencing procedure nor make detailed findings of fact or law.


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