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Sentence Vacated Due to Improper Enhancement Under Sentencing Guidelines

by Christopher Zoukis

The United States Court of Appeals for the Second Circuit vacated an improperly enhanced sentence of 46 months for illegal reentry after deportation.

In 2009, Roman Bartolo Genao, a national of the Dominican Republic, was convicted in New York state court of first-degree burglary and first-degree robbery. Genao forced his way into the victim’s home, placed a knife against her throat, and demanded money. He later called the victim and threatened to kill her family and burn down her house if she called the police. He was sentenced to six years in prison, deported upon release, and told he could not return to the U.S.

In August 2015, Genao flew into New York City, where he was immediately arrested on charges of illegal reentry. He pleaded guilty to the offense and was sentenced to 46 months in federal prison.

On appeal to the Second Circuit, Genao argued that his sentence was procedurally unreasonable. Specifically, he argued that the PSR prepared in connection with his sentencing improperly calculated his sentencing guidelines range because it determined that his previous crime was a “crime of violence” that warranted a 16-level enhancement; whereas, the crime he was actually convicted of was not categorized as a “crime of violence” and thus only an 8-level enhancement should have been added. This mistake increased his guidelines range from 18 to 24 months to 46 to 57 months.

The PSR incorrectly identified his previous conviction for second-degree robbery of a motor vehicle instead of first-degree robbery with a dangerous instrument. Without providing an explanation, the sentencing court applied the 16-level enhancement over the objection of Genao’s lawyer. The Second Circuit concluded that the PSR did “not clearly support the enhancement.”

Genao’s previous crime certainly reads like a “crime of violence.” But as the appellate court pointed out, under the tests used for determining whether a prior conviction can serve as a predicate offense for a sentencing enhancement, the sentencing judge is required “to consider the minimum elements that must be proven beyond a reasonable doubt to secure a conviction for that offense,” not to the actual facts underlying the conviction.

The Second Circuit noted that at “no point did the court look to the elements of the conviction; instead, it referenced only the” specific facts underlying Genao’s conviction. This was an error because there was no way to determine whether his previous conviction constituted a “crime of violence” for purposes of the guidelines. Accordingly, the Court concluded “that Genao’s sentence was procedurally unreasonable and that the sentencing judge therefore erred in calculating the Guidelines range.”

Prior to vacating the sentence, however, the appellate court provided guidance to the lower court, instructing that it would not be able to use the 16-level enhancement when it resentenced Genao on remand. But the guidelines are no longer mandatory, so the lower court would not be required to sentence Genao to a term of 18 to 24 months. According to the Second Circuit, “if the Guidelines represent the initial step in sentencing, they are no longer the stopping point” [emphasis original].

As such, even though Genao’s previous crime was not classified as a “crime of violence” for purposes of the guidelines calculation, the district court would now be permitted to consider the facts underlying his conviction to justify an upwards departure. See: United States v. Genao, 869 F.3d 136 (2d Cir. 2017). 

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