remanding for post- Booker sentencing; holding as matter of first impression that co-conspirator’s reasonably foreseeable use of a minor cannot be attributed to other conspirators for purposes of applying role in the offense enhancement under Section 3B1.4; discussion broadly addressed all Role in the Offense enhancements under Chapter Three, Part B; not addressing second sentence of Introductory Commentary to Chapter 3, Part B.
How later courts described this case
- remanding for post- Booker sentencing; holding as matter of first impression that co-conspirator’s reasonably foreseeable use of a minor cannot be attributed to other conspirators for purposes of applying role in the offense enhancement under Section 3B1.4; discussion broadly addressed all Role in the Offense enhancements under Chapter Three, Part B; not addressing second sentence of Introductory Commentary to Chapter 3, Part B.
- noting that “the Feeney Amendment’s change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta,” but rejecting the argument on plain-error review
- holding that the defendant’s telephone conversation with minor confederate informing him of robbery details insufficient for application of enhancement
- stating that there must be “some affirmative act beyond mere joint participation in a crime with a minor to qualify as ‘use of a minor’ under § 3B1.4”
Written by the judges who cited it.
The opinion
ALARCÓN, Circuit Judge,
concurring.
I concur in Part II and Part III of the Court’s opinion.
Because we must remand this matter to the District Court for resentencing in accordance with United States v. Booker, — U.S. —, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), the District Court will be free to conduct an evidentiary hearing to determine the appropriate sentence to impose, within its discretion, pursuant to the Sentencing Guidelines.
Since we do not now know the evidence that the Government will present, if any, to demonstrate that Appellant “used” Ka-domsky within the meaning of § 3B1.4, I believe that question is not ripe for review at this time. I would refrain from attempting to interpret the term “used” in § 3B1.4 until after the District Court makes its findings following resentencing proceedings.