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United States v. Cadle, No. 04-CR-750 (JBW), 2009 WL 1764980 (E.D.N.Y. June 11, 2009)
Short Note: Cadle pled guilty to conspiring to import cocaine into the United States, an
offense for which she faced an advisory Guidelines range of 37 to
46 months imprisonment. She cooperated with the Government, and received a 5K1.1 Letter. And she was sentenced to three years probation.
Why? "The offense took place almost five years prior to this sentencing. The defendant's actions since that time demonstrate significant rehabilitation. Cadle has pursued an education and devoted herself to her family responsibilities. Her cooperation with the government was robust and helped lead to the conviction of a major cocaine trafficker."
United States v. Villela, No. 07 Cr. 287-02 (RWS), 2007 WL 2845290 (S.D.N.Y. Sept. 25, 2007)
Villela, a Brown University graduate, pled guilty to one count of tax evasion. Based on a total offense level of 12 and a criminal history category if I, the court concluded that the applicable Guidelines offense level was 12, indicating a range of imprisonment of between 10 and 16 months. The court, however, imposed a non-Guidelines sentence of 60 months probation. Why? Simply put, the Probation Department recommended that probationary sentence, and the court found that Villela had "been convicted of a non-violent crime and has no prior criminal record. Furthermore, his continued employment will aid in the collection of restitution payments to the victims of the offense."
Villela points up an argument that I have always found persuasive and that has been successful in persuading courts in this post-Booker era to impose non-Guidelines sentences on offenders convicted of non-violent, economic crimes -- to wit, the best means for making the victims whole is a non-custodial sentence. Restitution should be the court's primary concern in fraud-type cases, and non-Guidelines sentences are often the best means for achieving same (particularly for offenders who have low Guidelines offense levels -- it's a more difficult goal to achieve in large-scale frauds involving losses in the millions).
United States v. Bernadel, No. 06-3940-cr (2d Cir. April 25, 2006) (found here)
Rule 32.1(b)(2)(C) provides that a person charged with a probation violation "is entitled to . . . question any adverse witness unless the court determines that the interest of justice does not require the witness to appear." The Second Circuit, in turn, held in United States v. Williams, 443 F.3d 35 (2d Cir. 2006) that in a probation-revocation hearing: (1) neither the Due Process Clause nor Rule 32.1 obliges a district court to perform a good-cause analysis with respect to a proffered out-of-court statement admissible under an established hearsay rule exception; but that (2) a court is "require[d] to determine whether good cause exists to deny the defendant the opportunity to confront the adverse witness" if no such exception exists.
In Bernadel, the district court relied on a probation officer's hearsay statements concerning probation violations in sentencing Bernadel to ten months imprisonment and two years of supervised release for an alleged probation violation. The Second Circuit, however, found that no hearsay rule exception existed for admitting that probation officer's testimony and that the district court, thus, "erred in failing to make a finding of good cause before admitting the probation officer's testimony." Thus, the Second Circuit vacated the district court's judgment and remanded the case for further proceedings consistent with its direction.
United States v. Sindima, Docket No. 06-2245-cr, 2007 WL 642592 (2d Cir. March 5, 2007) (found here)
Sindima was sentenced to three years probation following a guilty plea on federal mail fraud charges -- a sentence that was within Sindima's Guidelines range of 0-6 months imprisonment. While on probation, Sindima allegedly committed certain offenses that violated the terms of his probation. The district court calculated Sindima's Guidelines range for that probation violation at 4-10 months imprisonment, but sentenced him to 36 months imprisonment -- below the statutory maximum 60 months imprisonment for his underlying offense but more than 3.5 times higher than the high-end of the advisory Guidelines range for his probation violation.
Why the harsh sentence? Well, first, the district court found that Sindima had engaged in "egregious conduct" despite being given a "substantial break" at the time of his original sentencing. The Second Circuit, however, found that the district court's consideration of the underlynig offense was improper because that conduct is only to be considered to a limited degree -- "sentences for probation violations are not intended to substitute for sentences resulting from commission of the crime constituting the violation." Instead, "at revocation the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator." (The Second Circuit never noted that the "break" was not so substantial given his original Guidelines range of 0-6 months imprisonment.) Second, the Second Circuit considered Sindima's personal characteristics "only with regard to its initial inclination to sentence Sindima to the statutory maximum penalty." The error here is that the district court worked down from the statutory maximum of 60 months imprisonment based on Sindima's personal characteristics, rather than using the advisory Guidelines range of 4-10 months imprisonment as a "starting point for the district court's analysis."
So, where did this leave the Second Circuit? Relying on Rattoballi (discussed and critiqued here), it found that "on the present record, we are not confident that the grounds upon which the district court relied are 'sufficiently compelling [and] present to the degree necessary to support the sentence imposed."
Rattoballi -- the double-edged sword.
United States v. Pierre, No. 05-6629 (2d Cir. Sept. 22, 2006) (found here)
A quick note on an above-Guidelines sentence affirmed as reasonable, albeit in a slightly different context.
Pierre violated the terms of his probationary sentence and was sentenced to two years imprisonment for that violation -- notwithstanding that the Government and the advisory Guidelines revocation table (Section 7B1.4(a)) called for a sentence of between three and nine months. The Second Circuit affirmed the two year sentence as "substantively reasonable" in light of the district court's findings, including that it had already afforded Pierre substantial lenience and that Pierre had demonstrated a total lack of respect for the law as well as a pattern of criminality. The court also noted Pierre's cognitive and psychological limitations, "but found that this circumstances did not explain or excuse the extent of his failure while on probation."
Although likely warranted here, the affirmance of this above-Guidelines sentence is consistent with the discouraging nationwide pattern of reversing below-Guidelines sentences as unreasonable and affirming above-Guidelines sentences as reasonable.
As an aside, the Second Circuit noted in an unusual footnote that "[a]lthough it is not this Court's role to determine where Pierre is held during the term of his incarceration, we hope that efforts are made to ensure that he is in a facility that provides the mental and vocational services he clearly needs." Query whether the BOP will ever receive this message from the Second Circuit.
United States v. Goffi, No. 05-3329-CR., 2006 WL 1174399 (2d Cir. May 4, 2006)
Goffi plead guilty to a charge of embezzling money from the Federal Aviation Administration. For that offense, Goffi was sentenced principally to probation for five years. While serving his term of probation, however, Goffi plead guilty in state court to certain sexual abuse of a child related charges. Not nice. As a result of that conviction, the district court sentenced Goffi to a term of 24 months imprisonment for his probation violation -- a sentence that well exceeded the 6 to 12 months imprisonment recommended by the Guidelines for his underlying embezzlement conviction. On appeal, Goffi argued that the district court erred in sentencing him to a term of imprisonment longer than that called for by the Guidelines for his underlying offense. The Second Circuit rejected that argument, joining several other circuits that have held that "a sentencing court may sentence a defendant who violates probation without being restricted by the original Sentencing Guidelines range applicable to his or her crime or a 'departure' therefrom, subject at the upper end to the maximum statutory penalty that may be imposed for commission of the underlying offense." The Second Circuit further noted that Booker does not change this result.
One additional footnote to note from Goffi. In addition to the foregoing, Goffi also argued that the district court failed in sentencing him to provide a proper statement in support of its sentence as required by 18 U.S.C. 3553(c). Specifically, the district court had only stated that it "imposed a sentence of 24 months because of the criminal conduct that gave rise to the violation and the need to protect society." Relying on its "robotic incantations" pronouncement in Crosby, the Second Circuit found that this barebones statement of reasons was sufficient to satisfy the statutory requirement of a statement of reasons.
Looks from here that the Second Circuit has placed great faith in the district courts that they are, in facts, considering all of the 3553(a) factors. Indeed, given the Second Circuit's approval of the Goffi court's statement of reasons, one cannot imagine a statement of reasons that the Second Circuit would reject.
United States v. Hamburger, 414 F. Supp.2d 219 (E.D.N.Y. 2005)
In Hamburger, the district court was called upon to address (and answer) the following five questions:
1. Does the Mandatory Victim Restitution Act preclude a court from limiting a restitution order amount to the amount settled upon by the defendant and his victim? Yes. A defendant who settles with a victim for an amount less than the full restitution amount is still subject to a full restitution order under the Mandatory Victim Restitution Act. As described by Hamburger, in "fashioning a restitution order, a pre-existing civil settlement is properly considered by the Court, but only as an offset against the calculation of total loss to the victim" in part because "restitition serves traditional purposes of punishment. The prospect of having to make restitution adds to the deterrent effect of imprisonment and fines." (It bears noting that the Hamburger court was not happy with this conclusion, which it felt compelled to reach.)
2. Does a district court, in modifying terms of probation, have the authority to modify a resitution order? No. Probation and restitution are separate and arise from different statutory sources. Thus, any modification of probation can have no impact on any restitution order.
3. What effect does a victim's renunciation of his interest in receiving restitution have on the obligation of an offender to fulfill his/her restitution obligation? None. The obligation to pay restitution continues even if the victim declines receipt of restitution. And, if so, the district court has the authority to order that such restitution payments be made to the Crime Victims Fund (or other victims of the defendant).
4. Should a defendant be credited for assets transferred back to a victim of an economic offense? Yes if they have economic value, and no if they do not have economic value. In Hamburger, the defendant transferred stock to the victim that was not publicly traded (i.e., had no market value) and therefore had no ascertainable economic value. To obtain credit for any such transfer, Hamburger would have had to have "liquidate[d] those assets and use[d] the proceeds for restitution." In this regard, it also bears noting that the Mandatory Victim Restitution Act does not clearly authorize a court to modify the form of restitution payments, as opposed to the schedule for those payments.
5. Can a defendant be relieved of home detention as a condition of probation when the defendant has fulfilled his/her restitution obligation? Yes. But Hamburger had not, in fact, fulfilled his restitution obligation. Thus, the court declined to relieve him of the terms of his probation.
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