The Same Notice Rules Apply To Non-Guidelines Fines

United States v. Elfgeeh, 515 F.3d 100 (2d Cir. 2008)

In this post, we noted that a district court's failure to advise a defendant that it intended to impose an adverse non-Guidelines sentence constituted reversible error.  Well, the same principles apply to fines. 

Under Sections 5E1.2(c)(3) and (4) of the Guidelines, the defendant faced a possible fine of between $20,000 and $500,000.  Yet the district court imposed a fine of $1,250,000 -- more than twice the maximum proscribed by the advisory Guidelines (even though it was less than the statutory maximum).  Although the defendant did not challenge the fine imposed at sentencing, the Second Circuit concluded that its imposition constituted plain error because the district court did not give the defendant either "notice that a fine of such magnitude was contemplated or an opportunity to be heard on his ability to pay such a fine."

The Second Circuit, however, denied a request for remand to a different judge -- it found that doing so was not warranted.  Instead, it directed that "the district court must give [the defendant] an opportunity to present evidence with respect to his ability to pay a fine and make specific findings as to [his] ability to pay the fine imposed.  If the court decides to impose a fine that is different from the Guidelines-recommended range, it must also provide an explanation as to the specific reasons for its decision."

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