Federal Judiciary

United States v. Ware, 577 F.3d 442 (2d Cir. 2009)

Ware was convicted of securities fraud and conspiracy to commit securities fraud, and was sentenced principally to 97 months imprisonment.  Proceeding pro se on appeal, Ware challenged, among other things, the district court's application of a 4 level role enhancement.  At sentencing, though, Ware had not challenged the district court's role enhancement.  Accordingly, his challenge to the sufficiency of findings was reviewable only for plain error.  And the Second Circuit found such error to have occurred.  Specifically, it "conclude[d] that the findings of the district court are not sufficient to reveal a factual basis for the court's conclusion that Ware's criminal activity involved five or more 'participants' or was 'otherwise extensive' within the meaning of the Guidelines 3B1.1(a).  Thus, the Second Circuit reversed Ware's sentence, and remanded either for supplemental factual findings or for resentencing.

The underlying facts relating to the district court's conclusions concerning the absence of an adequate factual basis for the role enhancement are not as important as the larger point -- to wit, that it is "plain error" for a district court to impose a role enhancement whatever the circumstances without adequate findings of fact.  This is consistent with the Second Circuit's general direction concerning how sentencing hearings should  be conducted in the post-Booker world.  The only question is this: Will "plain error" analysis be extended to any other factual findings upon which sentences are based?