Monday, February 04, 2013

Guideline Errors Harmful Despite 99-Month Downward Variance; Fifth Circuit Still Likes Pattern “Deliberate Ignorance” Charge

United States v. Roussel, No. 11-30908 (Jan. 16, 2013) (Jolly, Jones, Graves)

Roussel, a New Orleans Police Department Captain and Traffic Division commander, was convicted of conspiracy and 2 counts of wire fraud involving a scheme to defraud a New Orleans-based utilities provider. Roussel’s strategy at trial seemed to be "Yeah, I was there when other people discussed defrauding the company and the related bribery scheme, but I really wasn’t paying attention to what they were saying. It was way over my head, I was bored and busy texting, and I went to the bathroom right when they were finalizing the bribery plans. Basically, I’m on the tapes, but I had no idea what was going on."

The district court included the Fifth Circuit pattern charge on "deliberate ignorance." Roussel appealed, arguing, among other things, that inclusion of the deliberate ignorance charge lowered the required from mens rea and violates Supreme Court precedent. The panel suggests that the deliberate ignorance charge should not have been given, but found that any error was harmless because "there was substantial evidence of Roussel’s actual knowledge of the illegal scheme." The panel bypassed any substantive review of the deliberate ignorance pattern language but suggested that it is consistent with the Supreme Court’s decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011) because it conveys the same meaning, even though it uses different words.

With regard to sentencing, the panel affirmed the use of the public official sentencing enhancement as well as the enhancement based on Roussel’s high-level or sensitive position. The panel found the district court clearly erred, however, in finding that more than one bribe occurred for a 2-level enhancement under 2C1.1(b)(1) and in calculating the expected benefit for a 16-level increase under 2C1.1(b)(2). "[T]he district court’s calculation of expected benefit was purely speculative." The court arbitrarily relied on a previous, historically costly hurricane season to predict the benefit. If the court had relied on the hurricane season that actually applied, Roussel would have only received a 12-level enhancement.

The panel found that these sentencing calculation errors were not harmless. The district court had granted a 99-month downward variance, resulting in a 136 month sentence. The correct advisory guideline range, though, was 121-151 months instead of 235-293 months. Even though the given sentence was in the middle of the correct range, the panel could not assume that the court would not have granted a variance from the correct range. On remand, the district court will have a chance to do just that.

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