Federal Sentencing: Aggravated Role Adjustment Per §3B1.1
When the federal government prosecutes criminal organizations, it will seek to obtain higher sentences for the defendants who are in leadership and managerial roles in the organization. This guide examines the factors impacting whether an upward adjustment for an aggravated role is merited.
How does federal sentencing work?
Arriving at a federal sentence is a complicated process. There are two components: (1) offense level; (2) criminal history. This guide deals with the offense level; specifically, the defendant's aggravated role in the criminal activity. Where the defendant is accused of a crime with five or more participants, the defendant can receive a significantly higher offense level if the court determines that the defendant was an organizer or manager according to §3B1.1.
By how much can §3B1.1 (Aggravated Role) increase the offense level?
§3B1.1 provides for a 2-, 3-, and 4-level increase to the offense level depending on the defendant's aggravating role in the offense: (a) if the defendant was an organizer or leader or was otherwise extensive, increase by 4 levels; (b) if the defendant was a manager or supervisor (but not organizer or leader) increase by 3 levels; (c) if the defendant was an organizer or leader in a criminal activity other than described in (a) or (b) increase by 2 levels.
What factors impact the application of the adjustment?
First, the size and scope of the criminal activity--five or more or otherwise extensive. Second, the defendant's particular role in that activity--"organizer or leader" or a "manager or supervisor."
Who bears the burden to prove the defendant's aggravated role?
The government must prove that the defendant should receive an aggravating role adjustment at sentencing.
What is the legal standard to prove the defendant's aggravated role?
The government must prove the defendant's aggravated role by a preponderance of evidence. This standard is lower than the standard at trial, which is beyond a reasonable doubt.
Who counts as a participant?
The participants are people who (1) were aware of the criminal objective, and (2) knowingly offered their assistance. Therefore, a person who is not a coconspirator can be a participant if they aid the defendant with knowledge of the criminal activity. Therefore, the definition of participant is broader than the definition of conspiratorial liability.
What are some practical examples of participants and non-participants?
An example of a participant is a defendant's high-level employee, who continued to solicit investments despite knowing the company was operating a Ponzi scheme and made knowing false representations to potential investors. United States v. Aptt, 354 F.3d 1269 (10th Cir. 2004) Similarly, a defendant's wife was a participant in the defendant's fraud scheme when she knowingly made false representations to potential investors. United States v. Alfonzo-Reyes, 592 F.3d 280 (1st Cir. 2010). An example of a non-participant is a defendant's employees in a mail fraud scheme because they were "innocent clerical workers." United States v. King, 257 F.3d 1013, 2024 (9th Cir. 2001).
How does the court determine the defendant's role in the criminal activity?
The defendant's role in the offense is made on the basis of all conduct within the scope of §1B1.3 (Relevant Conduct). Therefore, the court will not only look to the defendant's participation in the counts of conviction. The difference between an organizer and a manager turns on the degree of responsibility in the criminal activity. To qualify, the defendant needs to have organized or supervised only ONE participant.
What factors distinguish leaders and organizers from managers and supervisors?
The non-exhaustive list of factors the courts considers are:
(1) the exercise of decision making authority;
(2) nature of participation in the commission of the offense;
(3) the claimed right to a larger share of the fruits of the crime;
(4) the degree of participation in planning or organizing the offense;
(5) the nature and scope of the illegal activity; and
(6) the degree of control and authority exercised over others.
How to practically avoid an aggravated role enhancement?
It depends on whether the defendant is pleading guilty or taking the case to trial. If the defendant is pleading guilty, it is imperative to negotiate this aspect with the government and include it in the guilty plea agreement. If the case is going to trial, the government will likely seek to impose the maximum adjustment available. Therefore, the case at trial needs to be tailored to minimize the defendant's role. The defense needs to be focused on maximizing the role of others and minimizing the role of the defendant.