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Federal Criminal Case Sent Back to Lower Court for New Sentencing Hearing: The Importance (Again) of Having a Lawyer Who Knows When to Object

Kish Law LLC

Any casual reader of this blog knows that I regularly discuss how important it is for people facing criminal charges to have an attorney who is creative, who is willing to fight for his or her client, and who knows when to “object” in court. Some lawyers fail to recognize that objecting to the prosecutor’s tactics does not end with the trial. The attorney also needs to be prepared to complain when the government tries some improper tactic at the sentencing hearing. A case issued this week by the federal Court of Appeals here in Atlanta proves this principle. The case is United States v. Rodriguez, and can be accessed here.

Mr Rodriguez was prosecuted in federal court in Miami, Florida. The prosecutors alleged that he ran a scheme to defraud investors.The evidence at trial revealed that Mr. Rodriguez was involved in four companies that sold coffee and other vending machines. Mr. Rodriguez posted Internet ads looking for investors. When a potential investor responded, Rodriguez had some associates contact them and inform them about their golden opportunity to invest in a new coffee machine, vending machine, or drinking water machine. He made various promises about the quality of the investment and the level of support he would provide to the investor. Unfortunately, it seemed that most of his promises were untrue, and investors lost money. The jury found Rodriguez guilty of mail and wire fraud.

But the story does not end there. Like all the federal criminal sentencing hearings we are involved with, Mr. Rodriguez had to be interviewed by a federal Probation Officer, who prepared a lengthy document called the Presentence Investigation Report, or “PSR”. The PSR contains information about the person to be sentenced, and also contains the Probation Officer’s recommendations as to how to apply the very complex Federal Sentencing Guidelines. However, and here’s the important part, any particular Guideline that increases the Defendant’s potential sentence must be based on facts, and the prosecution bears the burden of producing such facts.

The government requested an enhancement under the Guidelines by arguing that Mr. Rodriguez’s offense involved 50 or more victims. Under the Guidelines, the enhancement would be smaller if there were under 50 victims. The prosecutor submitted affidavits from 42 victims, as well as a summary chart indicating a total of 238 victims. Mr. Rodriguez’s lawyer “objected” and argued that there was insufficient evidence in the record to show that the offense involved more than 50 victims. The sentencing judge concluded that out of 238 individuals who bought machines, at least 50 must have been victimized.

In the Court of Appeals, Rodriguez’s attorney argued that the sentencing judge clearly erred by finding the case involved more 50 victims. The only evidence presented was the summary chart, and the 42 affidavits. There were no witnesses to authenticate what the chart represented, or to talk about how it was prepared, or by whom. There was no testimony or evidence from the trial itself tying the summary chart to any of the trial evidence. As the Court of Appeals put it, “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.” The Appellate Court therefore ruled that it was improper to use the higher sentencing enhancement for cases that involve more than 50 victims.

Mr. Rodriguez will likely get a reduced sentence because his lawyer remembered to object at the crucial point in the sentencing hearing. People facing criminal charges need to assure themselves that any attorney they hire is well-versed in the law, and is prepared to object at the right time.

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