United States v. Gomez, No. 09-4412-cr (2d Cir. Nov. 23, 2010) (found here)
Gomez appealed his 150 months sentence that followed his plea of guilty to an eight-count indictment charging a conspiracy to import and distribute heroin. Among other things, Gomez argued that the district court erred in applying a role enhancement because it failed to make any particularized finding in open court regarding the enhancement.
The Second Circuit agreed -- Even finding that the district court had committed plain error (that is, procedural error). In particular, the district court neither adopted the factual findings in the PSR nor made any specific factual findings to support the sentence enhancement -- two well-established ways that the district court could have supported its finding of a role enhancement. The Second Circuit therefore remanded to the district court for it to either make specific factual findings supporting the role enhancement, or sentence Gomez without the role enhancement.
Note: Gomez must have entered an "open plea" -- that is, he likely had no plea agreement. Otherwise, the government likely would have relied on the appellate waiver in the standard plea agreement to move to dismiss his appeal. Or, perhaps, his appeal was viable because his sentence was outside of the range provided for in the appeal waiver clause of his plea agreement.
United States v. De La Cruz, No. 09-4641-cr, 2010 WL 4136669 (2d Cir. Oct. 21, 2010)
De La Cruz's argued that his sentence was procedurally and substantively unreasonable. In particular, he argued (among other things) that the district court committed procedural error in making the following statement: "The next factor is the Court has to avoid unwarranted sentencing disparity. I would have to say a Guidelines sentence by definition really can't create unwarranted sentencing disparity."
The Second Circuit found that any error on the district court's part in making that statement was harmless, particularly in light of other statements made that indicated the district court understood its sentencing responsibilities and obligations. Still, the Second Circuit made one observation worth noting -- that is, that "Appellant is correct insofar as he asserts that a Guidelines sentence can create an unwarranted disparity, a proposition supported by the Supreme Court's decision in Kimbrough v. United States."
United States v. Dugan, No. 10 Cr. 06-1 (RWS), 2010 WL 4118374 (S.D.N.Y. Oct. 12, 2010)
Dugan was convicted of having obstructed the entryway to a medical clinic in Manhattan. Because the offense was a class B misdemeanor, the Guidelines did not apply. Rather, the court was required to consider the remainder of the 3553(a) factors. And, in doing so, the court concluded that a four month prison term was appropriate for purposes of specific and general deterrence.
United States v. Goltson, No. 09-CR-461 (JBW), 2010 WL 4032399 (E.D.N.Y. Oct. 13, 2010)
Goltson pled guilty to a lesser-included offense within a single-count indictment charging him with conspiring to distribute and possess with intent to distribute cocaine base, for which he faced an advisory Guidelines range of imprisonment of between 57 and 71 months (inclusive of safety-valve and acceptance of responsibility adjustments). Goltson was sentence to time served (18 months). Why:
The offense of conspiracy to distribute and possess with intent to distribute is serious. As a child, Goltson was abused by his father, a heroin addict, and was raised in conditions of severe poverty. He suffers from depression and a severe learning disability, and he has received no education beyond middle school. Goltson has three children: two young daughters and a son in middle school. He remains close to his family and has been offered housing and employment by relatives. Because the defendant has already served eighteen months, a sentence of time served reflects the seriousness of the offense and will promote respect for the law and provide just punishment.
United States v. Ovid, No. 09-CR-216 (JG), 2010 WL 3940724 (E.D.N.Y. Oct. 1, 2010)
Judge Gleeson takes pen to paper again, but selects the fraud guidelines and the DOJ's June 28, 2010 letter to the Sentencing Commission as the target. In sum, Judge Gleeson sentenced a white-collar offender to 60 months imprisonment, notwithstanding an advisory Guidelines range of 210 to 262 months (there was, of course, a 60 month statutory cap). The whole decision is a "must read" for any defense lawyer. Indeed, Judge Gleeson has important things to say about sentencing disparity as well as the role that appellate courts should play in cabining same. But what's perhaps most interesting for defense lawyers is his "Preliminary Statement," which is quoted in full below:
In a letter dated June 28, 2010 to the Chair of the United States Sentencing Commission, the Director of the Office of Policy and Legislation of the United States Department of Justice (“DOJ” or the “Department”) decries the “evolution” of “two distinct and very different sentencing regimes.” Letter from Jonathan J. Wroblewski to the Hon. William K. Sessions III, at 2, 1 (June 28, 2010) (“DOJ Letter”). One “regime,” the letter contends, “includes the cases sentenced by federal judges who continue to impose sentences within the applicable guideline range for most offenders and most offenses.” Id. at 1. This is apparently the good regime. The “second regime,” by contrast, “has largely lost its moorings to the sentencing guidelines.” Id. at 2. This regime is a cause of concern for the Department. It consists of judges who sentence fraud offenders, especially in high-loss cases, “inconsistently and without regard to the federal sentencing guidelines.” Id. at 4. The Department concludes on this issue (the letter addresses various others as well) that “[t]he current sentencing outcomes in [fraud] cases are unacceptable, and the Commission should determine whether some reforms are needed.” Id . at 5. In short, the premise of the letter is that unless the sentences in fraud cases are “moored” to the advisory ranges provided by the United States Sentencing Guidelines, they produce “unwarranted sentencing disparities” that are “extremely problematic.” Id. at 2.
The DOJ Letter recommends, inter alia, a systemic analysis and synthesis by the Commission of the federal sentencing data it has collected, followed by a report that “explore[s] how to create a single sentencing regime that will earn the respect of the vast majority of judges, prosecutors, defense attorneys, Members of Congress, probation officers, and the public.” Id. at 3. It also suggests that “reforms might include amendments to the sentencing guideline for fraud offenses.” Id. at 5.
The Department is an important influence in the formulation of sentencing policy. Jonathan Wroblewski, the author of the letter, is a thoughtful and well-respected expert in the area. Finally, the Attorney General enjoys ex officio membership on the Sentencing Commission, and Mr. Wroblewski is the Attorney General's designee to that post. For all these reasons, the DOJ Letter to the Commission will carry great weight.
The sentencing of Isaac Ovid on July 30, 2010 illustrates well the fact that, here in the trenches where fraud sentences are actually imposed, there is a more nuanced reality than the DOJ Letter suggests. The letter describes two “dichotomous regimes” in fraud cases-one moored to the Guidelines, the other adrift in the vast regions beneath the low end of the advisory Guidelines ranges. Id. at 2. But Ovid's sentencing shows otherwise. Specifically, it shows how the fraud guideline, despite its excessive complexity, still does not account for many of the myriad factors that are properly considered in fashioning just sentences, and indeed no workable guideline could ever do so. This reality does not render the Guidelines irrelevant in fraud cases; they are in fact quite useful in all sentencings. But sentencing judges know that a full consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), implicates offense and offender characteristics that are too numerous and varied, and occur in too many different combinations, to be captured, much less quantified, in the Commission's Guidelines Manual. A consideration of those and the other factors set forth in § 3553(a) produces sentences that are moored to fairness, and to the goals of sentencing set forth in § 3553(a)(2) but sometimes not so much to the advisory Guidelines range. Indeed, in some cases the fair sentence can drift quite far away from the advisory range, which is, after all, but one of eight factors the sentencing judge must consider.
Ovid's sentencing reveals that the Department knows this as well. Aggressive, experienced, successful white collar prosecutors understand that it does not undermine the Sentencing Guidelines at all, much less create some kind of rogue sentencing regime, when the consideration of factors set forth in 18 U.S.C. § 3663(a) produces a sentence that happens to be substantially below the advisory range.
I support the Department's call for Sentencing Commission review of fraud sentences. But in determining whether reforms are needed, and especially in determining whether the existing guideline should be burdened with even more adjustments, the Commission should examine whether our system already provides an adequate solution for the claimed “unacceptable” outcomes the Department complains about. I suggest that it does, in the form of appellate review, and for all of the handwringing in the DOJ Letter about unacceptable sentences, the Department for the most part has not even tried to avail itself of that solution.
United States v. Thomas, No. 09-2970-CR (2d Cir. Sept. 22, 2010) (found here)
Thomas contended on appeal that his "sightless condition" rendered his 140 month sentence (down from 180 months after a remand for resentencing following Booker) substantively unreasonable. The Second Circuit disagreed, finding that the district court had "explicitly and specifically considered Appellant's blindness, weighing it against, inter alia, Appellant's prominent role in the underlying criminal conspiracy."
United States v. Wynaar, No. 09-CR-656 (JBW), 2010 WL 3718912 (E.D.N.Y. Sept. 13, 2010)
Wynaar was convicted at trial of conspiring to import cocaine, conspiring to attempt to import cocaine, and conspiracy to attempt to possess cocaine, for which he faced an advisory Guidelines range of imprisonment of between 78 and 97 months. The court, however, sentenced him to 60 months imprisonment. Why?
The offenses of conviction were serious. Defendant was convicted by a jury of conspiring and attempting to import large, distribution quantities of cocaine into the United States from Suriname. He has exhibited on many occasions a disregard for the criminal law. A significant period of incarceration is appropriate for purposes of achieving specific deterrence. Defendant has, however, an excellent work history and a large, supportive family. The high statutory minimum applicable in this case, plus the maximum term of supervised release, will adequately serve the purposes of sentencing.
Could these same grounds for a non-Guidelines sentence also apply in, say, a white-collar setting?
United States v. Ortiz, Docket No. 08-2648-cr (2d Cir. Sept. 1, 2010) (found here) (hat tip to Zachary Margulis-Ohnuma, who handled the appeal on behalf of Ortiz) Ortiz was sentenced to 120 months imprisonment for firearms and narcotics offenses in what amounted to a non-Guidelines sentence. On appeal, he contended that his sentence violated the ex post facto clause of the U.S. Constitution because an enhancement, used to calculate his Guidelines sentencing range, was increased after the date of his offense. Ortiz's sentencing range under the unamended Guidelines would have been 151 to 188 months; under the amended Guidelines the range would have been 168 to 210 months. The Ortiz case finally provided the Second Circuit with an opportunity to address the applicability of the ex post facto clause to the Guidelines in the post-Booker world. And here is how it came out. Specifically, the Second Circuit adopted the "substantial risk" standard enumerated by the D.C. Circuit in United States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008). In that case, the D.C. Circuit held that an ex post facto violation may occur when a defendant is able to show that use of amended Guidelines "create[s] a substantial risk" of a more severe sentence. No definitiveness is necessary; rather, a defendant only need show that there is a "substantial risk" of a harsher sentence if the ex post facto clause is not applied when calculating a Guidelines range. Put differently (as described by the Second Circuit), the standard "recognizes that there may be circumstances where an amended Guidelines range can influence a sentence that violates the Ex Post Facto Clause." In Ortiz's case, the "substantial risk" standard did not benefit the defendant because the sentence imposed was well below both the amended and unamended Guidelines range. Thus, the Second Circuit concluded that there was "no risk at all [] that the sentencing judge, having made such a generous deviation from the amended Guidelines range, would have imposed a non-Guidelines sentence of less than 120 months had the bottom of the applicable sentencing range been 151 months, as it was before the Guidelines, rather than 168 months." As detailed in my July 1, 2009 article in the New York Law Journal entitled "The Ex Post Facto Clause In The Post Booker World" (found here), my view on the issue is different. Specifically, my article argued that the ex post facto clause continues to apply in the post-Booker world for any number of reasons. But, even if I'm wrong, it seems that the clause either applies or doesn't apply -- a "yes or no" answer, rather than the "maybe" answer provided by the Second Circuit in Ortiz. What are your thoughts?
United States v. Pfaff, Docket Nos. 09-1702-cr(L), 09-1707-cr(CON), 09-1790-cr (CON) (2d Cir. Aug. 27, 2010) (found here) The latest from the Second Circuit in the KPMG tax case, described as "the largest criminal tax case in American history." 18 U.S.C. 3571 governs the imposition of criminal fines. It provides that an individual may be fined a maximum of $250,000 per offense, and allows for an "[a]lternative fine based on gain or loss." In this case, the jury found defendant Larson guilty of twelve felony offenses, but made no specific findings as to the pecuniary gain or loss caused by his conduct. Absent such findings, the "statutory maximum" fine Larson could receive was $3 million ($250,000 for each of his twelve felony convictions) -- the maximum fine that could be imposed based on the facts reflected in the jury verdict. Still, the district court fined Larson $6 million, which figure was supported only by the district court's own judicial fact-finding. It as that finding that the Second Circuit found violated the rule of Apprendi -- that is, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyong the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" and that "the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Fine vacated, and remanded to the district court for further proceedings consistent with the Second Circuit's opinion.
United States v. Mack, No. 08-CR-806 (JBW), 2010 WL 3282648 (E.D.N.Y. Aug. 18, 2010) Mack, a corrections officer, was convicted by a jury of attempting to use intimidation and corruptly persuade another corrections officer, with intent to hinder, delay and prevent communication to a law enforcement officer of the United States, of information relating to the commission and possible commission of a federal offense, in violation of 18 U.S.C. § 1512(b)(3). She faced an advisory Guidelines range of imprisonment of between 27 and 33 months.
She was sentenced to 5 years probation. Why? The offense is a serious one. Defendant sought to work a substantial subversion of justice. Prior to this offense, she had a long record of good conduct, including an excellent work record and some advanced education. She has strong relationships with a very supportive family, and her siblings and mother are hard-working people who have performed highly useful and important jobs in the civil service and related areas. The offense appears to be an aberration in defendant's conduct. The victim of this incident has already received some compensation from a court settlement; the need for restitution to the victim is not a substantial factor. Defendant has lost her position as a result of this conviction and is currently unemployed. She will suffer substantially from not being able in the future to work in her chose[n] field.
United States v. Zhu, No. 09-CR-465-01 (JBW), 2010 WL 3282636 (E.D.N.Y. Aug. 18, 2010) Zhu pled guilty to smuggling and attempting to clandestinely import counterfeit goods into the United States, for
which he faced an
advisory Guidelines range of imprisonment of between 30 and 37 months.
He was sentenced to 3 years probation. Why? She cooperated, including against her criminal collaborator and former boyfriend who was sentenced to 24 months in prison. They say that all may be fair in love and war. But the same principles sometimes apply in the federal criminal justice system.
United States v. Green, Docket No. 08-5548-cr (2d Cir. Aug. 13, 2010) (found here) Among other things, Green was sentenced (for his crack cocaine offense) to a term of supervised release that included the following condition: "And of course, as a special condition, you're not to associate with any member or associate of the Bloods street gang or any other criminal street gang." The final written judgment stated as follows: "The defendant shall not associate with any member or associate of the Bloods street gang, or any other criminal street gang, in person, by mail (including email), or by telephone. This shall include the wearing of colors, insignia, or obtaining tatoos or burn marks (including branding and scars) relative to these gangs." It is the "color wearing" condition that the Second Circuit found problematic. Specifically, the Second Circuit noted that "[d]ue process requires that the conditions of supervised release be sufficiently clear to 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'" Further, a "condition of supervised release must provide the probationer with conditions that 'are sufficiently clear to inform him of what conduct will result in his being returned to prison,' and violates due process if 'men of common intelligence must necessarily guess at its meaning and differ as to its application.'" With regard to the "color wearing" condition, the Second Circuit found that it: is not statutorily defined and does not provide Green with sufficient notice of the prohibited conduct. The range of possible gang colors is vast and indeterminate. . . . Eliminating such a broad swath of clothing colors would make his daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition.
United States v. Bonilla, Docket No. 09-1799-cr (2d Cir. Aug. 13, 2010) (found here) -- If you're looking for a good summary of the law and rules governing appellate sentencing review in the Second Circuit, look no further than Bonilla: We review sentences for abuse of discretion, a standard that "incorporates de novo review of questions of law (including interpretation of the [Sentencing] Guidelines) and clear-error review of questions of fact." United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). In applying the abuse of discretion standard in sentencing appeals, we are constrained to review for reasonableness. See Gall v. United States, 552 U.S. 38, 46 (2007). It is by now familiar doctrine that "[t]his form of appellate scrutiny encompasses two components: procedural review and substative review. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). Upon substantive review, a trial court's sentencing decision will be classified as error only if it "cannot be located within the range of permissible decisions." Id. (internal quotation marks omitted). The length of the sentence imposed is what is examined on substative review. United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007). Substantive reasonableness review can take place any time following procedural reasonableness review, including during the same appeal. See Gall v. United States, 552 U.S. 38, 51 (2007) ("[An appellate court] must first ensure that the district court committed no significant procedural error . . . [and,] [a]ssuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence implosed . . . ."); see also United States v. Dorvee, __ F.3d __, 2010 WL 3023799, at *7 (2d Cir. Aug. 4, 2010) (noting that we are empowered to address "both the procedural and substantive reasonableness of [a] sentence in the course of an appeal where we find both types of error"). In engaging in substantive reasonableness review we recall that [t]he manifest-injustice, shocks-the-conscience, and substantive unreasonableness standards in appellate review share several common factors. First, they are deferential to district courts and provide relief only in the proverbial "rare case." Second, they are highly contextual and do not permit easy repetition in successive cases. Third, they are dependent on the informed intuition of the appellate panel that applies these standards. In sum, these standards provide a backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.
United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (footnote omitted). With respet to procedural review, a district court commits procedural error where it fails to calculate the Guidelines range (unless omission of the calculation is justified), makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory. It also errs procedurally if it does not consider the 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact. Moreover, a district court errs if it fails adequately to explain its chosen sentence, and must include an explanation for any deviation from the Guidelines range.
Cavera, 550 F.3d at 190 (internal citations and quotations omitted). In arriving at a sentencing decision, the District Court must consider the now-advisory Guidelines, for they are the "starting point and the initial benchmark," Gall, 552 U.S. at 49, and are not to be treated as only a "body of casual advise," United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005). The process of sentence selection and the place of the Sentencing Guidelines in that process has been established as follows: First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the Guidelines and all of the other factors listed in Section 3553(a). Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553(a), whether (i) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence. Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.
Crosby, 397 F.3d at 113. A sentencing court is free to vary from the Guidelines on the basis of a policy disagreement with the Guidelines. Indeed, we have held that "a district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that [policy] disagreement applies to a wide class of offenders or offenses." Cavera, 550 F.3d at 191. In Kimbrough v. United States, 552 U.S. 85 (2007), the Supreme Court found that a district court was entitled to conclude that the existing Guidelines provision for crack cocaine was greater than necessary to meet the standards of 3553(a) because the provision "d[id] not exemplify the Commission exercise of its characteristic institutional role." Id. at 109. We recently determined that "[t]he district court committed procedural error when it concluded that it could not consider a broad, policy-based challenge to the child pornography Guidelines." United States v. Tutty, __ F.3d __, 2010 WL 2794601, at *3 (2d Cir. July 16, 2010). In United States v. Dorvee, __ F.3d __, 2010 WL 3023799, at *9 (2d Cir. Aug. 4, 2010), we noted that "Sentencing Guideines are typically . . . based on data about past sentencing practices but that "the Commission did not use this empiracal approach in formulating the Guidelines for child pornography," acting instead at the direction of Congress. We suggested in Dorvee that a sentencing court could, in the exercise of its broad discretion, take into account the "unusual provenance" of the Guidelines in cases of that nature. Id. at *12.
Carter v. United States, No. 3:07-CV-1477 (EBB), 2010 WL 3123371 (D. Ct. Aug. 6, 2010) On a motion for consideration on Carter's habeas corpus petition, a district court in Connecticut found that sentence enhancements unde rboth the career offender guidelines and the Armed Career Criminal Act were not appropriate, and that his counsel's failure to object to those sentence enhancements constituted ineffective assistance of counsel that caused actual prejudice.
Carter's
PSR identified five prior felony convictions
that purportedly qualified as a "crime of violence" or a
"controlled substance offense" as defined in the career offender guidelines and also as a "violent felony" or "serious drug offense"
under the ACCA. Specifically, (1) a June 10, 1985
conviction of robbery in the 3rd degree, (2) an August 11, 1988 conviction of
risk of injury to a minor, (3) a January 2, 1992 conviction of sale of
narcotics, (4) a January 2, 1992 conviction of possession of narcotics, and (5)
a January 25, 1994 conviction of sale of narcotics. The PSR's factual descriptions of
his 1985 robbery, 1988 risk of injury and 1994 narcotics convictions were taken
from police reports. The PSR contained no information at all regarding the
underlying facts of his two 1992 drug convictions, but merely reported the fact
of those convictions and stated that "the police report[s] are no longer
available." Carter was sentenced on May 2, 2005. The Court adopted the guideline calcutations set forth in Carters PSR and sentenced him to a total term of imprisonment of 360 months. Carter's counsel did not object to any of the guideline calculations or to the propriety of using an of Carter's prior convictions as described in his PSR to support a sentence enhancement as a career offender or armed career criminal. The court's discussion as to whether or not Carter should have been considered a career criminal and/or qualified under ACCA is long (and interesting). But what's more interesting is the court's analysis of the ineffective assistance of counsel claim -- a claim that is often made but is infrequently successful. Here is the court's analysis in its entirety: To
establish an ineffective assistance of counsel claim, a defendant must show (1)
that counsel's performance fell below an objective standard of reasonableness
and (2) but for counsel's ineffective assistance, the result of the proceeding
would have been different. Carter has established both prongs.
He has shown that his counsel's performance
fell below the "range of competence demanded by attorneys" and
seriously undermined the proper functioning of the adversarial process. If counsel had performed with the reasonableness demanded by Strickland,
he would have cited well-settled precedent to challenge the use of Carter's prior convictions that
were not supported by the adequate factual basis that was required for them to
qualify as predicate offenses under the career criminal guidelines and
the ACCA. Counsel's failure to do so in this case constituted a
clear lapse in representation and the Court can find no plausible strategic
reason for counsel's error. There is no reason to believe that, had counsel
raised the issue, the Court would have disregarded the controlling precedent.
Thus, counsel's error resulted in an enhanced sentence that was not applicable
and caused Carter prejudice.
Carter has established actual prejudice
because there is more than a reasonable probability that, but for counsel's
deficient performance, the sentence imposed would have been different.
There can be no reasonable dispute that
counsel's failure to object to Carter's sentence enhancement as a career
offender or an armed career criminal deprived Carter of the effective
assistance of counsel and resulted in an increased
period of incarceration. Accordingly, Carter has established that he was deprived
of his Sixth Amendment right to counsel and that he suffered actual prejudice.
The career offender guidelines and ACCA can, at times, be confusing. But it sounds like this defense lawyer simply spent no time drilling down on the questions raised by the PSR. This district court in Connecticut found that he should have.
United States v. Kumar, Docket Nos. 06-5482-cr(L), 06-5654-cr (CON) (2d Cir. Aug. 12, 2010) (found here) This decision is the appeal of the convictions sustained by Sanjay Kumar and Stephen Richards in the Computer Associates. Here's the Second Circuit's opening paragraph: Appeal by Defendants from separate judgments entered in the United
States District Court for the Eastern District of New York (I. Leo
Glasser, Judge), following guilty pleas by Defendants to several counts
of conspiracy, securities and wire fraud, obstruction of justice, and
perjury. We hold that Richards’s guilty plea was not constitutionally
infirm and that he was properly charged with, and convicted on his
guilty plea to, obstruction of justice. We therefore AFFIRM Richards’s
judgment of conviction in all respects. We further conclude that the use
of the Sentencing Guidelines in effect at the time of sentencing to
calculate Defendants’ Guidelines ranges for their fraud offenses, rather
than the Guidelines in effect at the time of the commission of those
offenses, did not violate the Ex Post Facto clause. We further conclude
that the district court properly calculated the loss amount underlying
Defendants’ monetary fines and that the district court did not abuse its
discretion by denying Kumar an acceptance of responsibility credit in
determining his Guidelines range. We further conclude that the district
court erroneously failed to award Richards a two-point reduction for
acceptance of responsibility. Thus, we AFFIRM Kumar’s sentence in all
respects and VACATE Richards’s sentence and REMAND for resentencing.
Now that the end of the story is known, let's dig a little deeper into the details. Did the Sentence Violate the Ex Post Facto Clause? Kumar and Richards contended that application of the 2005 Guidelines book to their fraud offenses -- which were completed in 2000 -- violated the ex post facto clause. The Second Circuit found the claim to be without merit. More specifically, the Second Circuit found that "there is no question that application of the 2005 Guidelines disadvantaged the defendants by subjecting them to the higher ranges of the 2005 Guidelines compared to the 1998 version of the Guidelines." The only question with which the Second Circuit had to deal was "whether application of the 2005 Guidelines" -- using the one book rule because certain of the offenses were grouped together but took place at different times -- "to the defendants's sentences was 'retrospective'" -- a question on which the court had "previously reserved ruling." In a nutshell, the Second Circuit concluded that the "one-book" rule does not violate the ex post facto clause, at least as applied to a series of similar offenses (like those in this matter). Was the Loss Calculation Clearly Erroneous? Loss was sharply disputed between the defense and the government. The most significant area of disagreement centered on how to properly frame the economic impact of certain conduct for which they pled guilty. The district court held a Fatico hearing, and questioned the experts for both the defense and the government. Ultimately, the district court accepted the government's calculation (as expressed through its expert). The Second Circuit was not persuaded that the district court's reliance on this loss analysis was "clearly erroneous." Because district court's have such leeway in determining loss, it's often difficult to challenge a loss calculation on appeal. After all, a sentencing court is not required to calculate loss with precision. Instead, it need only make a reasonable estimate of loss. And since district courts have the evidence in front of them, appellate courts find that their loss determinations are entitled to a high level of deference. Since losses in financial fraud cases so often are the driving force behind any Guidelines calculation, though, perhaps district court loss calculations should be held to a higher standard and subjected to a more rigorous appellate review. Were the Defendants Properly Denied Acceptance of Responsibility Credit? The defendants pled guilty. But they got no credit whatsoever for acceptance of responsibility (neither a 2 nor 3 level reduction in offense level). For Kumar, the district court found that he obstructed justice and waited until the eve of trial before pleading guilty, and therefore was not entitled to any acceptance of responsibility credit. The Second Circuit rejected Kumar's argument that he was entitled to that credit, finding that it needn't resolve any of the flaws identified by Kumar on appeal "because an examination of the record shows that he engaged in sufficient objectionable post-indictment conduct to justify a rejection of his request for acceptance of responsibility credit. Specifically, Kumar . . . acted in ways that the district court reasonably found to be inconsistent with a full acceptance of responsibility." Read the decision for the details, but suffice it to say that deference to the district court played a large role in this appellate loss. Richards is another story. The district court relied on a single factor in denying acceptance of responsibility points -- the lateness of his plea. Timeliness is an appropriate consideration for acceptance of responsibility. The two-level reduction provided for in U.S.S.G. § 3E1.1(a) is for demonstration of acceptance of responsibility. By contrast, the Guidelines specifically provide that timeliness of a plea is primarily relevant to the reduction of an additional point under U.S.S.G. § 3E1.1(b). Here, the lateness of Richards' plea was not a sufficient reason to totally reject acceptance of responsibility points. Thus, the Second Circuit remanded for resentencing. Richards will get his two points. But it likely won't take much (if anything) off of his seven year sentence which itself was a non-Guidelines sentence (a variance from the life sentence recommended by the Guidelines).
United States v. Blake, No. 10-CR-206, 2010 WL 3037511 (E.D.N.Y. July 21, 2010) Blake pled guilty to attempted illegal reentry into the United States, for
which he faced an
advisory Guidelines range of imprisonment of between 41 and 51 months.
He was sentenced to a 5 months in prison. Why? On February 10, 2010, defendant's mother passed away in the United States. Defendant's sister, also living in the United States, contacted both the United States Attorney General's Office and United States Customs and Border Protection, and was apparently told that defendant would be allowed to reenter the United States to attend his mother's funeral. Defendant returned to the United States on February 19, 2010 and was detained by Immigration and Customs Enforcement (ICE) at John F. Kennedy International Airport. Since his deportation in 2001, the defendant has led a law-abiding life and worked in the construction industry. His family in Jamaica, including a young daughter who suffers from severe asthma, depends on him for financial support.
United States v. Ballard, No. 09-0978-cr (2d Cir. Aug. 4, 2010) (found here) Remember Zachary Ballard? Judge Rakoff imposed a 601 month sentence. But he had some sharp words for the mandatory minimum sentencing schemes that caused him to be required to impose that sentence. Well, Ballard appealed. And the Second Circuit affirmed. In doing so, though, it expressed some sympathy for Ballard's plight: The district court was clearly conflicted by the sentence it gave to Ballard. The court opened its opinion and order denying Ballard's motion for resentencing by stating, "The distorting effects of mandatory minimum sentences are never more evident than in the case of defendant Zachary Ballard," United States v. Ballard, 599 F. Supp. 2d 539, 539 (S.D.N.Y. 2009), and closed by stating, "When the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt," id. at 543. We are not unsympathetic to the concerns raised below. That said, we see no error in the sentence as it complied precisely with Title 18 and the law of this circuit.
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