USA v. Spring L. Acosta,  05-3598 & 3661.  This appeal requires the 7th Circuit to consider the extent to which a member of a conspiracy can be held liable under the United States Sentencing Guidelines for the use of a minor where there is no evidence that the defendant personally directed or encouraged the minor in any way.

Here, the 7th Circuit concludes that the district court misapplied § 3B1.4 of the Guidelines in sentencing Spring Acosta, one of the two defendants in this appeal, when it imposed an enhancement for the use of a minor. As such, the 7th Circuit vacates Acosta’s sentence and remands for resentencing.

Section 3B1.4 of the Guidelines provides that "[i]f the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by 2 levels." The first application note to that section states that " ‘used or attempted to use’ includes directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting."

Acosta was undeniably aware of the minors’ participation, but there is no evidence that she independently directed or encouraged the minors, or that she played any role in bringing them into the criminal enterprise. Indeed, at argument, the government conceded that Acosta did not "direct[ ], command[ ], encourage[ ]," or do any other act toward the minors that is spelled out in application note one of § 3B1.4.

Four circuits have agreed that the enhancement applies only when the defendant by some affirmative act helps to involve the minor in the criminal enterprise. See United States v. Pojilenko, 416 F.3d 243, 247 (3d Cir. 2005).

The 7th  Circuit finds this reasoning persuasive. In short, Pinkerton (reasonably foreseeable)liability makes no sense in the context of the individualized enhancements set out in section 3B of the Guidelines, which seek to punish the particular behavior of individual members of a conspiracy.

Indeed, this section’s introductory note states that the part "provides adjustments to the offense level based upon the role the defendant played in committing the offense" (emphasis added). The Government was unable to identify any case in which courts have applied Pinkerton principles to the other enhancements listed in Part B of Chapter 3 of the Guidelines.

Since Acosta did not personally "use" a minor in committing the offense, the district court’s decision to apply this enhancement must be vacated.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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