In Rodriguez, the Eleventh Circuit Court of Appeals vacated a four-level enhancement under federal sentencing guidelines section 2B1.1(b)(2)(B), after concluding that the Government had failed to present any “reliable and specific evidence” to support its contention that the defendant’s fraud crimes involved more than 50 victims. Particularly noteworthy was the extremely critical concurring opinion written by Senior District Judge Dudley Bowen of the S.D.Ga., who wrote separately to comment on the Government’s far too common “cavalier disregard” of its obligations to present real evidence at sentencing proceedings.
Manuel Rodriguez was convicted at trial of conspiracy to commit wire fraud and wire fraud in violation of 18 U.S.C. §§ 1348 and 1343. He was sentenced to 120 months in prison, a sentence that included a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) based on the Government’s claim that Rodriguez’ crimes involved more than 50 victims. On appeal, Rodriguez argued, inter alia, that the district court erred by imposing that four-level enhancement since the record did not establish that his offense involved more than 50 victims.
The Eleventh Circuit agreed with Rodriguez contention that the four-level enhancement was not supported by the evidence and it vacated his sentence and remanded for resentencing with a two-level enhancement under U.S.S.G. § 2B.1.1(b)(2)(A) rather than a 4-level enhancement under § 2B1.1(b)(2)(B). In reaching that conclusion, the Court had some sharp words about the Government’s abject failure to present any “reliable” or “specific” evidence in support of the four-level enhancement it sought. The Court wrote in part:
“The only evidence presented to the Court suggesting that there were more than 50 victims was the summary chart proffered by the government. The prosecution presented no witnesses to authenticate what the chart represented, how it was prepared, or by whom. . . . Neither did the prosecution present any witnesses or evidence to verify that the information in the chart was correct. In essence, the summary chart amounted to little more than an allegation by the government on a piece of paper that Mr. Rodriguez’s offense involved more than 50 victims.”
Senior Judge Dudley Bowen of the S.D.Ga., who sat on the panel by designation, wasn’t happy that the Government was let off so easily. In his mind, the Government had shown – once again – a “cavalier disregard” for the need of further evidence to support its sentencing recommendations – and he decided to write a special concurring opinion to let the Government know that its approach at sentencing was far too often lackadaisical and perfunctory – and that “responsible advocacy demands more.” Thus, he wrote in part:
“This is another case wherein the Government has failed to come forward with evidence at a
critical time. Unfortunately, important objections made by a defendant at a sentencing hearing are often dealt with as an afterthought. The Government’s cavalier disregard for the need of further evidence, specific references to a trial transcript, or another basis upon which the district court may make sustainable findings is all too typical. In this case, after a laboriously conducted two-week trial, resulting in a conviction we readily affirm, the Government’s willingness to allow the matter to conclude resting upon extrapolation, conjecture, and innuendo left the district court stranded with a well-prepared Presentence Investigation Report, some commentary, and little else. . . .
“I fear that the latitude allowed in sentencing proceedings often lulls the Government’s lawyers into a species of spectator. . . .
“No one is better positioned than trial counsel for the Government to anticipate and satisfy the need for articulation, protection, and supplementation of the record with the testimony of witnesses, necessary exhibits, or other evidence. Too often, energetic, successful prosecutors approach what is arguably the most important part of the case with a surprising level of inexactitude. Responsible advocacy demands more.”