Second Circuit Remands for Resentencing for Potential Improper Reliance on Inaccurate Information

Hot on the heels of United States v. Baker, 2007 Wl 4006103 (2d Cir. November 16, 2007), discussed here, in which the Second Circuit reversed a child pornography possession case for an unexplained failure to depart below the Guidelines, the Court reversed a similar case two days ago, United States v. Juwa, 2007 WL 4179834 (2d Cir. November 28, 2007), because of a substantial upward departure based on what appeared to be unsubstantiated relevant conduct.  The two cases have prompted this memorable headline from the Second Circuit Blog: "Have you hugged a sex offender lately?" 

In Baker, the issue was the sentencing judge's failure to explain why leniency wasn't appropriate in light of the absence of any evidence that the defendant had molested children.  In Juwa, the sentencing court must explain if its 60-month enhancement above the applicable guideline was improperly based on a finding that the defendant had engaged in multiple acts of child sexual abuse, rather than the single instance to which the defendant intended to plea guilty in state court. 

Juwa is significant for the Court's reiteration of a fundamental if obvious point: that the defendant has a "due process right to be sentenced based on accurate information."  The Court went on to say, quoting a Third Circuit decision, United States v. Matthews, 773 F.2d 48, 51 (3d Cir. 1985), "[f]actual matters considered as a basis for sentence must have ‘some minimal indicium of reliability beyond mere allegation.'"  Moreover, an indictment, "standing alone and without independent substantiation" cannot be the kind of "accurate" information required for the imposition of a criminal punishment. 

These statements, while admittedly a bit on the stingy side, will be useful, as Harlan Protass points out in his blog, in challenging the use of any relevant, especially acquitted, conduct to enhance a defendant's sentence.  In addition, they should be quoted in all letters to the Probation Department objecting to factual inaccuracies in the presentence report, which as I have noted previously, tend to be rife and subject to very little accountability.

On a final note, Juwa is disappointing for the Court's failure to take the opportunity to address some other issues raised in that sentence, such as whether a 60-month enhancement of a child pornography possession case is reasonable based on the defendant's prior acts of sexual abuse, even if substantiated, where the defendant was separately pleading guilty in another court to the sexual abuse (and a five-year sentence) and the Guidelines themselves only call for a 2 year or so enhancement in those circumstances.