3B1.1 and Leadership---Good Result

Caption: Are the big penguins in the foreground leaders for 3B1.1 purposes? (Sorry, I just thought they were cute.)

United States v. Bathily, No. 08--2293 (6th Cir. Aug. 17, 2010) (unpublished).

Panel of Chief Circuit Judge Batchelder, and Judges Moore and Cole.

Offense: Fraud and aggravated identity theft (1028A).

Sentence: 48 months.

Issue: Was sentence procedurally unreasonable when district court sua sponte enhanced sentence in violation of the notice requirement of Rule 32 and failed to address arguments that the Sentencing Guidelines for fraud offenses yield excessive sentences in light of the § 3553(a) factors?

PSR Guideline Calculations: OL 17, CHC I, range of 24 to 30 months. + 2 years for 1028A.

Final GLs: Ct imposed 3-level enhancement under 3B1.1 (was 2 levels in PSR). Defendant got 3 levels off for substantial assistance, so range fell to 18 to 24 months.

Held: District court relied on impermissible factors in applying 3B1.1(b); sentence vacated and case remanded.

Reasoning:

* A district court's application of an enhancement under 3B1.1(b), instead of (c), is not a departure that requires notice under Rule 32(h).

* Enhancements pursuant to Chapter 3 of the GLs are "adjustments," rather than departures.

* Courts cannot rely on irrelevant factors to make determinations under 3B1.1. The case of United States v. Anthony, 280 F.3d 694 (6th Cir. 2002), gives proper test for using "otherwise extensive" factors in applying 3B1.1.

* District court did not apply the Anthony test. And Court of Appeals could not apply test de novo b/c record insufficient.

* Failure to object to the factual basis for enhancement under 3B1.1(c) did not mean the PSR supported enhancement under 3B1.1(b).