At sentencing in the case of US v. Espinosa, defense counsel objected to the Pre Sentence Report’s recommendation of an “aggravating role” enhancement, but did not provide the court with specific reasoning in support of the objection. The judge did not mention the enhancement again and imposed a 360-month sentence, the bottom of the range that included the enhancement. The written statement of reasons (SOR), included with the Judgment, indicated that the court had adopted the PSR and its Guideline calculations “without [c]hange.” That was sufficient.
The Court also said that merely objecting to the enhancement without specific evidence is insufficient and tantamount to waiving the argument. The case is disturbing because of the court’s highly suspect declaration that Espinoza had forfeited his claim. Espinoza objected to the enhancement at sentencing, and that should have been enough to preserve the issue. While the circuit found fault with Espinoza for failing to providing specific evidence that he was not an organizer/leader, in fact, the defendant had no such obligation — the government had the burden of proof. So, set forth in detail specific evidence in support of any claim you might make. United States v. Espinoza, No. 05-0711-cr (2d Cir. January 11, 2008).