Sunday, December 19, 2010

Equal Rejection

United States v. Thomas, No. 09-4335-cr (2d Cir. December 16, 2010) (Jacobs, Kearse, Straub, CJJ)

The circuit has twice upheld strict liability nature of the “stolen gun” enhancement, currently codified as U.S.S.G. § 2K2.1(b)(4)(A). Here, the defendant raised the issue again, arguing that Apprendi and its progeny have undermined the circuit precedent on this point, and also made an equal protection claim.

The circuit affirmed. Apprendi does not apply because the enhancement does not alter the statutory maximum penalty, and the Booker line does not affect the analysis, because those cases “concern the advisory nature of the Guidelines" and not "the validity of any particular guideline.”

Thomas also argued that “emerging data” indicated that many firearms are erroneously reported stolen and that this should cause the court to revisit the issue. The court disagreed, finding that this data “actually reinforce[d]” the existing rule. Guns that are falsely reported as stolen after being sold to ineligible persons or straw purchasers are “more likely to end up in the hand of a criminal.”

Thomas' equal protection argument pointed out that an the guideline covering explosives only enhances the sentence if the defendant “knew or had reason to believe” that the explosives were stolen. But the circuit found “rational basis” for the distinction. Even though explosives are more dangerous than firearms on an “individualized basis,” stolen firearms are more readily obtainable by felons and “therefore more deadly than stolen explosives in the aggregate.” Thus, because there is a “reasonably conceivable state of facts” to support the distinction between stolen firearms and stolen explosives, the equal protection challenge fails.


PC World

United States v. Diaz, No. 10-317 (2d Cir. December 15, 2010) (Cabranes, Pooler, Wesley, CJJ) (per curiam)

In October, the court issued a non-precedential summary order holding that the Fair Sentencing Act (the "FSA") is not retroactive. See "Summary Summary" posted October 27, 2010. This per curiam is a published opinion to the same effect, at least where the defendant was "convicted and sentenced before the FSA was enacted."

Nominally, at least, the door is still open for FSA retroactivity arguments for defendants whose conduct occurred before the FSA, but whose conviction and sentences took place afterwards.

Labels: ,

Summary Summary

Here are the two latest summary orders of interest.

In United States v. Spitsyn, No. 09-4698-cr (2d Cir. December 16, 2010), the court agreed with the parties that the district court relied on clearly erroneous findings of fact in a bank fraud case to support ts finding that all of the checks the defendants cashed were relevant conduct. However, the court rejected the defendant's request that the court order that the resentencing occur on the existing record. Instead, the district court will have the discretion to reopen the record if it sees fit.

In United States v. Roseboro, No. 09-5002-cr (2d Cir. December 8, 2010), although the court agreed that the district court erred in attributing criminal history points to a conviction that fell outside the applicable time periods set out in U.S.S.G. § 4A1.2(e) and (k)(2), it found that the error was harmless. The sentence the district court selected was a within-Guideline sentence even in the lower criminal history category, and the district judge made clear that he would have imposed the same sentence regardless of the defendant's criminal history category.

Labor Pains

United States v. Markle, No. 06-1600-cr (2d Cir. December 14, 2010) (Jacobs, Pooler, Parker, CJJ)

In United States v. Enmons, 410 U.S. 396 (1973), the Supreme Court held that extortion liability under the Hobbs Act, 18 U.S.C. § 1951, did not extend to violence in pursuit of “legitimate labor ends” that occurs during a lawful strike that is intended to achieve “legitimate collective-bargaining objectives.”

Defendant Markle was convicted of attempted Hobbs Act extortion after a violent confrontation arising from two unions' turf war over the right to perform “fine sweep work” - the preparation of a floor surface before installing tile - at a construction site in upstate New York. He argued both in the district court and on appeal that Enmons precluded liability.

The circuit disagreed. The Enmons defense is not available if there is no legitimate labor union objective. Courts have generally limited the defense to the context of strikes or collective bargaining negotiations between unions and employers. It does not apply to “violence committed by one union against another for the purpose of ‘establishing the proper allocation of work between’” two different groups of unionized workers. Violence committed “outside the context of a labor-management dispute, by one union against another, does not have a legitimate collective-bargaining objective under the Hobbs Act.”

Labels: ,

Saturday, December 18, 2010

Plain Terror

United States v. Marcus, No. 07-4005-cr (2d Cir. December 7, 2010) (Calabresi, Straub, Wesley, CJJ)

This is Marcus’ second go-round in the circuit. He won the first time, in August of 2008, (see “Sex Post Facto”, posted August 18, 2008). The government got cert, and the Supreme Court reversed, holding that the first panel had used an incorrect plain error standard. In this decision, on remand from the Supremes, Marcus had only a partial win.

The underlying conduct is particularly disturbing. From October of 1998 through June of 1999, Marcus was in a consensual, albeit kinky, sexual relationship with “Jodi.” This nature of the relationship changed in October 1999 when Jodi refused to recruit her sister to become one of Marcus’ “sex slaves.” In response, Marcus “punished” Jodi severely, and began to terrorize her regularly. With this, the relationship became nonconsensual.

In January of 2000, Marcus directed Jodi to move to New York and forced her to create a website called “Slavespace.” She worked eight or nine hours a day on the site but Marcus received all of the revenues. This was not a voluntary arrangement. Even after she found full time work of her own, Marcus made her continue working on the site, and would brutalize her physically and sexually if he was unhappy with her efforts. The trial evidence described a particularly harrowing “punishment” that occurred in April of 2001.

In March of 2001, Jodi told Marcus that she wanted to end their arrangement. He said he would let her go if she endured one final punishment, but she was so terrorized by the punishment that she did leave. A few months later, the woman with whom she was living told Marcus that she did not want Jodi there any more. Jodi moved out and their contact gradually diminished, ending entirely in 2003.

In 2007, the government charged Marcus with violating the federal forced labor statute, 18 U.S.C. § 1589, and the sex trafficking statute, 18 U.S.C. § 1591(a)(1). Those statutes were enacted on October 28, 2000, but the indictment charged Marcus with violating them from January of 1999 through October of 2001. Marcus did not seek a jury instruction based on the statutes’ enactment date, nor did he raise any issue about retroactive application in his Rule 29 motion.

On his appeal, however, he argued that the statutes were applied to him retroactively in violation of the Ex Post Facto Clause. The panel, reviewing this unpreserved claim, applied binding circuit precedent, under which plain error review required a new trial if there was “any possibility, how matter how unlikely,” that an “uninstructed jury would have convicted the defendant based exclusively on pre-enactment conduct.” It accordingly vacated the conviction on both counts. A concurrence, authored by then-Judge Sotomayor, pointed out that although the panel was bound by the circuit’s existing plain error test, this test was inconsistent with Supreme Court precedent. The concurrence would have vacated only the sex trafficking count and would have affirmed the forced labor count because for that count the was “no plausible argument” that the jury would have differentiated between Marcus’ pre-and post enactment conduct.

On the government’s appeal, the Supreme Court reversed and remanded because the “any possibility however remote” standard was indeed inconsistent with that Court’s plain error review precedents.

In this do-over, the original panel, with Calabresi substituting for Sotomayor, agreed with the original opinion’s concurrence. It found that there could only be plain error under the fourth prong of the plain error test - the error must have “seriously affected the fairness, integrity or public reputation of” the proceedings - if there was a “reasonable probability that the jury would not have convicted him absent the error.”

Here, with respect to the forced labor statute, there was no such “reasonable probability.” The government presented post-enactment evidence sufficient to satisfy the elements of that statute. The forced labor on the “Slavespace” began in January of 2000, before the statute’s October enactment, but continued into at least June of 2001 - the April 2001 punishment episode was itself post-enactment. Thus, the jury would have found that Marcus obtained Jodi’s labor through the threat of serious physical harm and actual physical harm - the statutory standard - after October of 2000. Nor would there have been any “reasoned basis” for a jury to differentiate between Marcus’ pre- and post- enactment conduct. Indeed, if anything Marcus’ use of force against Jodi increased post-enactment.

By contract, however, the court adhered to his original ruling on the sex trafficking conviction. In fact, the government conceded on this point. Marcus transported Jodi to New York in early 2000, before the statute was enacted. From then on, he harbored her there. Thus, the conduct supporting this conviction “differed materially before and after October 2000 such that there is a reasonable probability that the erroneous jury charge affected the outcome of the trial” and the “fairness integrity or public reputation of the proceedings.”

Labels: ,

Monday, December 13, 2010

PC World

United States v. Bouknight, No. 09-4085-cr (2d Cir. December 7, 2010) (Katzmann, Livingston, CJJ, Korman, DJ)

This latest per curiam was a summary order that, on the government's motion, the court published. In it, the court holds that a sentence to a conditional discharge in Connecticut state court is a "criminal justice sentence" for purposes of the criminal history enhancement in U.S.S.G. § 4A1.1(d). The court had long ago held that this was true for a New York State conditional discharge. The defense here attempted to distinguish Connecticut from New York by pointing out that in New York a conditional discharge can be revoked, while in Connecticut it can only be modified or enlarged. But, to the circuit, the distinction did not matter. That a Connecticut conditional discharge can be modified is sufficient, because it still means that the sentence has a "supervisory component."

Saturday, December 11, 2010

What You Don’t Know Can Hurt You

United States v. Andino, No. 09-4694-cr (2d Cir. December 3, 2010) (Kearse, Calabresi, Wesley, CJJ)

In 2008, customs officials intercepted a package containing cocaine addressed to “Andino Jose” at an address in the Bronx. After a controlled delivery to that address, the recipient called defendant Andino, who picked up the package and brought it to an adjacent building, where he left it unopened.

Customs agents then placed him under arrest, and Andino admitted that he had been paid to pick up the package and transport it. He said that he knew the package contained drugs, but believed it contained marijuana, not cocaine.

At Andino’s trial, the government sought a jury instruction stating that the government would need to prove only that Andino knew the package contained a controlled substance - any controlled substance - and not specifically cocaine. Andino, on his part, wanted a charge requiring the government to prove knowledge of both drug type and quantity. Before the court could resolve the charge issue, the question came up again in Andino’s Rule 29 motion. Ultimately, the court charged the jury that the government had to prove, first, the existence of a conspiracy to violate those “laws which make it illegal to distribute or possess with intent to distribute a controlled substance, namely cocaine,” and, second, that Andino was a member of the conspiracy.

The jury convicted him of conspiring to distribute or possess with intent to distribute cocaine, but found that the conspiracy involved less than 500 grams.

Andino pursued on appeal the same issue he raised in the district court: that the government was required to prove a cocaine-specific scienter. The court disagreed and held that “in order to satisfy the scienter element, the government was required to prove only that Andino agreed to traffic in a controlled substance.” It affirmed Andino's conviction.

Title 21 U.S.C. § 841(a) makes it a crime to traffic in “a controlled substance.” Section 841(b) prescribes maximum and minimum penalties depending on the type and quantity of the controlled substance involved in the offense. Thus, under § 841(a), the “government does not have to prove that the defendant knew the specific nature and amount of the controlled substance.” Section "841's scienter requirement is not type-specific.”

But, Andino was convicted of a narcotics conspiracy, not the substantive offense. The conspiracy statute, 21 U.S.C. § 846 subjects drug conspirators to the “same penalties as those prescribed” for the offense that is the object of the conspiracy. This case thus poses the question whether this “statutory framework" requires the government to prove that a conspiracy defendant had specific knowledge of the type and quantity of the drugs involved in the conspiracy.

To the parties, the circuit’s precedents on the issue have been confusing: as they characterized them, some have held that the statute required only proof of intent to distribute any controlled substance, while others have held that the government must at least prove that a particular type and quantity were reasonably foreseeable to the defendant. But here, the circuit wiped this all away, holding that, “in context, there are no inconsistencies in the prior holdings.”

The court then announced a new way of looking at these cases: Rather, “all of our cases accord with the rule that the government need not prove scienter as to drug type or quantity when a defendant personally and directly participates in a drug transaction underlying a conspiracy charge.” And that is the rule that applies here: “In cases like the present one, where the defendant personally and directly participated in the drug transaction underlying the conspiracy charge, the government need not prove that the defendant had knowledge of either drug type or quantity.”

Alternatively, Andino argued that the government committed itself to proving cocaine-specific knowledge by indicting him on cocaine-specific charges and insisting in its statements to the district court that it wanted a cocaine specific conviction. But all the law requires is that the government actually prove that the drug in the indictment was the one involved in the conspiracy. It does not also require proof of a type-specific scienter. Here, neither the indictment nor the government’s statements at trial committed itself to proving that Andino intended to distribute cocaine.


All this decision really does it replace one confusing legal standard with another. Now there is a new, and apparently unprecedented, distinction between drug conspiracy defendants who “personally and directly participated” in the transaction and those whose participation was “peripheral.” For the first group, there is no type-specific scienter requirement, but for the second group there is.

Huh? Who is going decide whether a defendant is “peripheral” and who is not - the judge or the jury - because it sounds like there might be an Apprendi issue on that fact. And what are the relevant standards? Worse still, how is the jury going to understand the court’s instructions when the “peripheral” defendant is on trial with the “personal and direct” participants, and the jury is told that defendants in the same conspiracy are subject to different scienter requirements? What a mess!

One can surmise that the court thinks that it has helpfully closed the door to scienter litigation in future drug conspiracy cases. It should have remembered that when one door closes another door opens. Now the courts are going to have to sift through endless iterations of “I was merely peripheral, not a personal and direct participant” claims, and all of the attendant legal desiderata that will ensue. This should keep us all entertained for the next few years, though.

Labels: ,

Two Steps Forward

United States v. Capers, No 07-1830-cr (2d Cir. December 1, 2010) (Pooler, Hall CJJ, Trager, DJ)

This decision, which was sub judice for nearly two and one-half years, attempts to sort out the confusion left by the Supreme Court’s decision in Missouri v. Seibert, 542 U.S. 600 (2004).

Seibert involved a two-step interrogation strategy that was calculated to circumvent Miranda. The Missouri officers there had been trained to withhold Miranda warnings and question a suspect until he confessed. They would then Mirandize him, secure a waiver, and elicit a second confession. A four-justice plurality held that this two-step procedure violated Miranda because a suspect “hearing warnings only in the aftermath of interrogation and just after making a confession” would “hardly think he had a genuine right to remain silent.” The plurality identified five factors to be weighed in analyzing the effectiveness of post-interrogation Miranda warnings.

Justice Kennedy concurred in the judgment but believed that the five-factor test was too broad because it would cover “both intentional and unintentional two-stage interrogations.” His approach was to ask whether the officer had used a “deliberate two-step strategy” in a “calculated way” to undermine
Miranda and “obscure” the “significance” of the warnings when given. If not, then, the only question would be whether the second statement was voluntary. But if so, then a court would have to consider whether any curative measures had been taken to ensure that a “reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning” and waiver.

Here, the defendant, a postal worker suspected of stealing money orders from Express Mail envelopes, was apprehended after he and a co-worker took a test letter containing money orders into a trailer and an alarm indicating that the package had been opened went off. Postal inspectors arrested Capers, handcuffed him, and brought him to a supervisor’s office. An inspector, named Hoti, questioned him for five minutes without Miranda warnings and he confessed.

Two other inspectors then transported Capers to another postal facility, where they handcuffed him to a chair in an interview room. About ninety minutes after the initial un-Mirandized interrogation, Hoti read Capers his rights and Capers signed a written waiver and confessed again. After a hearing, the district court suppressed this confession and, on the government’s appeal, a divided Second Circuit panel affirmed.

The court’s analysis began with its major post-Seibert decision, United States v. Carter, 489 F.3d 528 (2d Cir. 2007), which held that Seibert applies where law enforcement officers use a “deliberate two-step strategy” to obtain a post-warning confession. Capers' case, then, turned on the meaning of “deliberate.”

The majority began by observing that since, in Seibert, the police officers admitted that they had been trained to use a Miranda-avoiding technique, “Justice Kennedy had no reason to explore how a court should determine when a two-step interrogation strategy had been executed deliberately.” A Ninth Circuit decision, Williams, identifying this same problem, looks to whether “objective” and “available subjective evidence” support “an inference that the two-step interrogation procedure was used to undermine” Miranda. Similarly, an Eleventh circuit case, Street, looks to the “totality of the circumstances,” including the “timing, setting and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of” the two confessions.”

Here, the court “join[ed] our sister circuits in concluding that a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness, with a recognition that in most instances the inquiry will rely heavily, if not entirely, upon objective evidence.” On the “unsettled question of which party bears the burden of proving deliberateness or absence thereof,” the court held that the burden rests on the prosecution to disprove deliberateness, but only by a preponderance of the evidence.

Here, the government did not meet that burden. Hoti's proffered reasons for not Mirandizing Capers before the first interview were that he (1) wanted to make sure he recovered the stolen money orders and (2) wanted to quickly determine whether Caper’s co-worker was involved so that, if he was not, he could release him. However, “[n]either of these reasons ... justifies delaying a Miranda warning once it is obvious that a suspect is in custody.” There is no Miranda exception for evanescent evidence; the “only legitimate reason to delay intentionally a Miranda warning until after a custodial interrogation has begun is to protect the safety of the arresting officers of the public.”

While “inexperience” or a “rookie mistake” may save a case under Seibert, here there was no evidence that Hoti was inexperienced and significant evidence that he did not make a mistake. He had been a New York City police officer for three years before he was a postal inspector, and had been trained to give Miranda warnings. He was also clearly in a position to Mirandize Capers - since the sting was planned, he “had time to think through what procedural steps he would need to take following arrest in order to build his case for prosecution.”

Ultimately, and quite significantly, since the circuit does not usually do this, the majority found Hoti's reasons for not reading Capers his rights “to lack not only legitimacy, but also credibility.” It was doubtful that Hoti, who had witnessed the co-worker assist Capers, would have let the co-worker go if Capers had exonerated him. Nor was the evidence truly evanescent; Capers was arrested immediately after the test package alarm went off and never left the the area where he was caught.

The majority also cited objective evidence in support of its conclusion. The initial confession was almost entirely complete, and there was “considerable overlap” in the content of the two statements. The “circumstances surrounding” the two sessions of the interrogation - their timing, and the continuity of the cast of interrogating officers - were all “indicative of a deliberate two-step interrogation.”

Finally, no “curative measures intervened” to restore Capers' opportunity to voluntarily exercise his Miranda rights.” So far, only two such measures have been identified. A “substantial break in time and circumstances” or “an additional warning” explaining that the first statement was inadmissible. Neither of those circumstances was present here.

Judge Trager dissented, finding that the majority’s approach “undermines Justice Kennedy’s controlling opinion” and “replaces it with” the test proposed by the “non-controlling” plurality opinion. His view was that a “more faithful application of Justice Kennedy’s Seibert concurrence requires a conclusion that Capers’ post-warning statements are admissible” because the inspector “did not deliberately utilize a two -step interrogation technique."


No Gain, Yes Pain

United States v. Woolf Turk, No 09-5091-cr (2d Cir. November 30, 2010) (Katzmann, Hall CJJ, Jones, DJ)

Ivy Woolf Turk was a principal in a real estate development company. Between 2003 and 2007 she and her partner persuaded investors to lend them $27 million, primarily to renovate apartment buildings in upper Manhattan. They induced the loans by promising that the investors would hold recorded first mortgages on the buildings as collateral. This was a lie - they never recorded the mortgages, so the investors were merely unsecured creditors. At the same time, the developers obtained loans from banks, and those liens were recorded.

Eventually Woolf Turk began defaulting on the victims’ loans. The victims became suspicious and discovered that, despite Woolf Turks’ representations, their mortgages had never been recorded. In May of 2007, the investors sued; only then did they learn that, not only were their mortgages unrecorded, but that the bank loans were recorded, and thus that their interests in the properties, if any, were secondary to the banks’.

Eventually, the development company went bankrupt and its assets were liquidated. Most went to the banks - the secured creditors - and the rest to pay various court and regulatory fees. The bankruptcy trustee was only able to distribute half a million dollars to the victims, who thus lost nearly all of the $27 million they lent to Woolf Turk.

Woolf Turk pled guilty to conspiracy to commit mail and wire fraud. At sentencing, the district court agreed with the government that the loss calculation for Guidelines purposes was more than $20 million, and calculated the Guidelines accordingly. With a resulting range of 121 to 151 months, the court sentenced Woolf Turk to 60 months’ imprisonment.

On appeal, Woolf Turk disputed the district court’s loss calculation, pursuing the same argument she made in the district court - that the victims’ loss was caused by the housing-market crash and not by Woolf Turks’ fraud. The circuit disagreed that “the loss amount should have been treated as zero because the properties in which her victims thought they were investing arguably had some market value at the time her fraud was discovered.”

This argument was based on the faulty premise that the loss was measured by the decline in value of what was promised as collateral. Rather, the victims’ loss “is the principal value of the loans they made to Woolf Turk which were never repaid and which the buildings were supposed to have collateralized but never did.”

Here, the buildings were “arguably” not collateral at all because the victims’ mortgages were never recorded, and under New York law, an unrecorded mortgage is void as against a lien on the same property recorded in good faith. It did not matter that, had the value of the properties had gone up, instead of down, the victims might have recovered all or part of their losses. Here, the purported collateral had no meaningful value at the time of sentencing.

The Guideline holds defendants accountable for any “reasonably foreseeable pecuniary harm,” which it defines as harm that the defendant knew or should have known could result from the offense. The potential for loss that Woolf Turk’s victims faced by not having recorded mortgages met this standard. Thus, the loss amount was the full principal of the loans that Woolf Turk fraudulently obtained. And it is irrelevant that some value might have remained in the collateral at the time the fraud was discovered, because the victims had no interest in the collateral, obtained no value from its sale, and no value remained at the time of sentencing.


Fuller Brush-Off

United States v. Fuller, No. 09-1437-cr (2d Cir. November 30, 2010) (McLaughlin, Straug, Raggi, CJJ)

In 2004, Ross Fuller pled guilty to a sex offense in Missouri and became a registered sex offender. He complied with the applicable registration requirements until June of 2006, when he moved to New York, and failed to register either in Missouri or New York State. Federal authorities arrested Fuller in New York in October of 2007, and he pled guilty to violating the Sex Offender Registration Notification Act (“SORNA”), 42 U.S.C. § 16901, et seq., which makes it a crime to travel in interstate commerce and knowingly fail to register or update a sex offender registration.

On appeal, he made two arguments, both unsuccessful.

First, when Congress enacted SORNA in 2006, it included a provision, § 16913(d), granting the Attorney General the authority to “specify the applicability of” SORNA to sex offenders convicted before SORNA’s enactment. On February 28, 2007, the Attorney General issued an Interim Ruling providing that SORNA applied to pre-SORNA sex offenders.

SORNA does not apply when the interstate travel occurred before the statute was enacted. This does not help Fuller, so he argued instead that SORNA did not apply to him because his interstate travel occurred between SORNA’s enactment and the Interim Ruling. Joining an existing circuit split, here the court of appeals disagreed.

The court rejected Fuller’s argument that § 16913(d) meant that the decision whether to apply SORNA to pre-SORNA sex offenders rested solely with the Attorney General. Rather, the court concluded that Congress itself already decided that SORNA would apply to all sex offenders regardless of when convicted, and merely “delegated to the Attorney General authority to work out the specific manner in which that legislative determination would be enforced with respect to pre-SORNA sex offenders.” In other words, § 16913(d) gives the A.G. the power to “specify how - not whether - SORNA’s registration requirements apply” to pre-SORNA sex offenders.

Judge Raggi wrote a separate concurrence on this issue, explaining that, in her view, the doctrine of constitutional avoidance foreclosed Fuller’s argument interpretation of § 16913(d) because it would “raise concerns about the delegation of legislative authority to the executive branch.”

Fuller’s second argument was that SORNA was a specific intent crime, not a general intent crime. While a question of first impression in this circuit, every other court to consider it has concluded that SORNA is a general intent statute, and the Second Circuit agreed. The statute uses the word “knowingly,” which typically means that the statute “only requires a finding of general intent for conviction.” That requirement was satisfied here. Fuller clearly knew that he had to register as a sex offender, and his failure to do so in either Missouri or New York when he moved was a “knowing act.”


Sunday, December 05, 2010

Summary Summary

Well, it's been a while since the court gave us any interesting summary orders, but here are two that are worth noting.

In United States v. Crawford-Bey, No. 09-3309-cr (2d Cir. December 1, 2010), the defendant challenged on appeal the
U.S.S.G. § 2D1.1(b)(1) gun possession enhancement. He had given away four guns, in pairs, to other people - conduct that was vaguely related to his drug dealing. But the district court's finding was quite sparse; it noted only that Crawford-Bey gave away the guns "while he was certainly dealing the drugs." While the requirements of the enhancement are "not especially difficult to meet," the court must "be able to specify the basis for its holding." Here the circuit found the record too thin, and remanded to the district court for "specific findings" on the enhancement.

In United States v. Gomez, No. 09-4412-cr (2d Cir. November 23, 2010), the district court committed plain error in imposing an aggravating role enhancement. It neither adopted the factual findings in the presentence report nor made any specific factual findings of its own. The circuit remanded the case with instructions to either make "specific findings to support the leadership enhancement" or sentence the defendant without it.