Presuming you are the person facing the enhanced charges, I recommend you speak with the attorney who defended you to determine your rights and options. Generally, prosecution of a federal case is well-grounded in evidence.
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Yes. It is possible.
Those points are "assigned" by probation, not by the prosecutor (AUSA), but it is the Judge who has the final say as to what points are to be assessed / calculated in a given case. Further, before the Judge makes such a decision the defense is free to challenge the points by filing "exceptions to the PSI", to which Probation must respond, and to which the government is also free to reply, and which are ultimately settled by the Court at a sentencing hearing.
The exceptions require a detailed analysis of the facts and circumstances of the case, as well a painstaking review of the PSI. The only person competent to offer advise as to whether or not your particular "role enhancement" is valid is the criminal defense lawyer who worked the case up to PSI preparation.
My advise: Sit down with your lawyer, and only your lawyer, and have a responsible discussion about your case.
I hope that I have been helpful in answering your question.
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It depends on the facts whether a manager enhancement is warranted, but under the law, you only need to supervise one other person to get points for being a manager. This is an issue that can be appealed..
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Probation makes the report/recommendation as to the guideline score calculation, including any enhancements. Yes, it is legal for them to do so. Certainly, probation taking this particular stand on the issue is unfortunate, but not the end of the inquiry. They are offering their "take" on that calculation and there is a procedure for the defense to object. Furthermore, once this information is presented to the judge, argument follows and it is ultimately the judge who takes all factors into final consideration and uses it to synthesize a sentence that is sufficient to accomplish the stated goals of sentencing without being unduly harsh or disparate.
As an aside, factual information specific to the case should not be made online, as a general rule, particularly while the issue is "live." Accurate responses to the question do not require such facts in any event, so please refrain from doing so in the future. Good luck.
The above is provided for educational purposes only and is not legal advice nor makes you a client of the Mosca Law Firm, PA. Please consult with a lawyer in order to obtain confidential legal advice that is tailored to your specific situation and facts.
The Government does not and cannot "enhance" anybody. Only the judge can make a binding guideline determination and only the judge can impose sentence. The Government's sentencing submissions, the defendant's sentencing submissions, and the PSR submitted by the probation officer are all recommendations to the judge, and nothing more. Your attorney will contest any enhancement proposed by the Government or by the PSR if it is arguably not warranted by the law and the facts of the case. The judge will decide.
Other attorneys have provided good insights as to this question in this forum, and the bottom line is that defendants do have the right to object to any disputed sentencing guideline enhancements. The Pre-Sentence Investigation Report, and prosecutors, frequently argue for enhancements that are debatable, and defendants have the right to object and fight such enhancements, with the court ultimately deciding whether to apply them or not. Anyone facing a federal case should discuss all such disputes carefully with counsel, to determine how best to proceed. An enhancement could certainly be applied where the facts are in dispute, but an attorney would need to be familiar with all the specific facts, discovery, any plea agreement, and other aspects of the case to determine how best to proceed. Good luck to anyone facing a federal sentencing, and please work closely with retained or appointed counsel to achieve the best result; general information in a public forum is no substitute.
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