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United States v. Labbe

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Heard: October 16, 2009

Before: NEWMAN, POOLER, and KATZMANN, Circuit Judges.

This sentencing appeal challenges a District Judge’s denial at a sentencing hearing of a minimal role adjustment, U.S.S.G. § 3B1.2(a), in making a Sentencing Guidelines calculation after the Judge had stated in a carefully prepared “Sentencing Opinion” that the defendant was entitled to the adjustment. Kenny Ola Labbe, a citizen of Nigeria, appeals from the January 31, 2008, judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, District Judge), sentencing him principally to 87 months’ imprisonment upon his plea of guilty to interstate transportation of stolen property, in violation of 18 U.S.C. § 2314. Although we have no desire to inhibit the commendable practice of issuing an indication of a likely sentence in advance of a sentencing hearing, we conclude that procedural error occurs when a defendant is not alerted to a likely change from a judge’s anticipated Guidelines calculation and when that change is not sufficiently supported by the Judge’s findings. We therefore remand so that at a renewed sentencing hearing, Labbe, now on notice that a minimal role adjustment is likely to be denied, can personally and through counsel make a full argument for such an adjustment and so that the District Judge, after considering both the Government’s and the defendant’s presentations concerning that adjustment, make a fresh determination, supported by appropriate findings, as to whether an adjustment is warranted.

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