UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________________

No. 20-1033 _______________________

UNITED STATES OF AMERICA, Appellant

v.

FRANCIS RAIA _______________________

On Appeal from the United States District Court for the District of New Jersey District Court No. 2:18-cr-00657-001 District Judge: The Honorable William J. Martini __________________________

Argued January 7, 2021 Before: SMITH, Chief Judge, AMBRO and CHAGARES, Circuit Judges (Filed: April 6, 2021) Mark E. Coyne Steven G. Sanders ARGUED Office of United States Attorney 970 Broad Street Room 700 Newark, NJ 07102 Counsel for Appellant Jenny Chung Lee Vartan ARGUED Chiesa Shahinian & Giantomasi One Boland Drive West Orange, NJ 07052 David M. Dugan Chiesa Shahinian & Giantomasi 11 Times Square 31st Floor New York, NY 10036 Alan L. Zegas Third Floor West 60 Morris Turnpike Summit, NJ 07901 Counsel for Appellee

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OPINION OF THE COURT _________________________ SMITH, Chief Judge.

A jury found Appellee Francis Raia guilty of conspiracy to bribe voters. At sentencing, the District Court calculated Raia’s total offense level under the Sentencing Guidelines to be 14, which with Raia’s criminal history category yielded a Guidelines range of 15–21 months’ imprisonment. The Court then stated it would vary to offense level 8—zero to six months—and sentenced Raia to a three-month term of imprisonment. The Government appeals the sentence claiming procedural error, arguing that the District Court miscalculated the Guidelines offense level by not applying two sentencing enhancements: a four-level aggravating role enhancement under U.S.S.G. § 3B1.1(a) and a two-level obstruction of justice enhancement under § 3C1.1.

Because the District Court erred in its interpretation of the Guidelines, we will vacate the sentence and remand for resentencing. The Government requests that we remand with instructions that the District Court apply both the four-level aggravating role enhancement and the two-level obstruction of justice enhancement. But because the record does not clearly support the application of either enhancement, we will leave it to the District Court to make whatever factual findings are necessary to determine whether either or both of the enhancements apply. -3- I. FACTS AND PROCEDURAL HISTORY

A. Indictment

In 2013, Raia ran for election to a city council seat in Hoboken, New Jersey. In that same election, Raia also supported—through a political action committee (“PAC”) he chaired—a ballot referendum to weaken local rent control laws. Raia’s campaign strategy was to solicit voters residing in the Hoboken Housing Authority to vote by mail. To that end, Raia’s PAC cut $50 checks to hundreds of these voters. Raia claimed that the voters who received the $50 did so in exchange for get-out-the-vote work they did for Raia’s campaign, such as wearing campaign-branded t-shirts and handing out campaign literature. Raia lost the election.

An investigation supported a different reason for Raia’s campaign’s vote-by-mail strategy and his PAC’s use of $50 checks: voters were paid in exchange for casting their mail-in ballots in favor of Raia’s slate and the rent control referendum. In short, the Government believes that “Raia instructed his campaign workers—including [1] Matthew Calicchio, [2] Michael Holmes, [3] Freddie Frazier, [4] Lizaida Camis, [5] Dio Braxton, and [6] Ana Cintron”—to bribe voters. Gov’t Br. 3. Under the Government’s version of events, Raia directed his campaign workers to collect and