Two Sentencing Points From The Second Circuit

United States v. Byors, Docket No. 08-4811-cr (2d Cir. Oct. 29, 2009) (found here)

On appeal, Byors argued that the district court erred in: (1) not offsetting the loss attributable to his fraud by amounts that represented legitimate investment in his business; and (2) applying a two-level enhancement for obstruction of justice relating to an offense underling his money laundering offense but not the money laundering offense itself (an issue of first impression in the Second Circuit).

With regard to the first issue, the Second Circuit found that the "plain language of Application Note 3(E) [of Section 2B1.1] readily disposes of defendant's argument."  Specifically, the "Guidelines do not require a loss to be offset by any legitimate expenditures . . . but rather [only] by 'value' that has been conferred on victims in the form of money or property returned or services rendered" (emphasis in original).

With regard to the second issue, the Second Circuit found that the issue revolved around the question of what to do "where a defendant has obstructed the investigation or prosecution of an underlying offense but has not obstructed the investigation or prosecution of a subsequent money laundering offense."  The Second Circuit solved that riddle by closely reading Sections 3C1.1 and 2S1.1 together, leading it to conclude that the defendant's obstructive conduct related not only to the offense of conviction, but also to relevant conduct or at least an offense that was closely related to the money laundering offense.

The Ethical Entrepreneur

United States v. Alatsas, No. 06-CR-473 (JBW), 2008 WL 238559 (E.D.N.Y. Jan. 16, 2008)

Notwithstanding a loss figure of $450,000 and an advisory Guidelines range of 24 to 30 months imprisonment, the Court imposed a probationary sentence based on: (1) Alatsas' substantial cooperation with the Government; (2) the good relationship he had with his wife and three children; and (3) most significantly from a defense perspective, his status as "an ethical entrepreneur except for this one aberrant offense."

A solid argument for counsel representing defendants convicted of financial frauds.

Short Involvement In Conspiracy Leads To Shorter Sentence

United States v. Hurtado, No. 06-CR-741 (JBW), 2007 WL 4322972 (E.D.N.Y. Dec. 4, 2007)

Hurtado's advisory Guidelines range was 46 to 57 months for his narcotics conspiracy.  But the court sentenced him to 18 months incarceration.  Several reasons relating to the purposes of punishment (deterrence, rehabilitation, etc.) were given for that significantly reduced sentence.  Most interestingly, however, the court considered "the extent of his criminal behavior," which amounted to only a "few hours."  Otherwise, Hurtado was "a very hard worker who owned a pedi cab business consisting of four pedicabs that he operated himself and leased to others.  He regularly sent more than $700 a month in child support to his ex-wife and he maintains a close relationship with his children." 

Just goes to show the tremendous impact that presenting facts relating to the 18 U.S.C. 3553(a) factors can have.

Not A Blissful Sentence

United States v. Bliss, No. 06-3039-cr., 2007 WL 3196346 (2d Cir. Oct. 30, 2007)

Sometimes you win.  Sometimes you lose.  In Bliss' case, he both won and lost at the same time.  No harm, no foul, though.  He ended up in the same place.

Bliss initially pled guilty to 11 counts of an indictment charging a litiny of sex crimes involving children.  In February 2004 the district court sentenced him to 264 months imprisonment, smack-dab in the middle of his Guidelines range of 235 to 293 months imprisonment.  The Second Circuit reversed in November 2005, finding that the district court improperly applied the obstruction of justice enhancement, and for consideration of whether to resentence pursuant to Booker.

At resentencing, the district court removed the enhancement for obstruction of justice.  But it also declined to apply the 3-level reduction for acceptance of responsibility.  Now, the district court had solid grounds for doing so.  After all, the Second Circuit had directed that Bliss' "flight from the jurisdiction may be punished by withholding the acceptance of responsibility credit."  But this sure sounds like sour reversal grapes on the part of the district court.

Bliss's recalculated Guidelines range was 262-327 months -- even higher than his original Guidelines range.  (He might have been thinking -- "This appeal was a great idea!").  The district court, however, imposed the same sentence of 264 months imprisonment.

"Endeavoring" To Obstruct Justice Sufficient for Obstruction Of Justice Guideline

United States v. Giovanelli, Docket No. 04-5763-cr (2d Cir. Sept. 27, 2006)

Giovanelli appealed his sentence, arguing that the district court incorrectly calculated his advisory Guidelines range because he only endeavored to obstruct justice but was not proven to have actually obstructed justice.  Specifically, the district court applied Section 2J1.2 which, in turn, cross-references Section 2X3.1, the accessory-after-the-fact Guideline.  The Second Circuit held that when a defendant is found to have "endeavored" to obstruct justice under 18 U.S.C. § 1503, Section 2J1.2(c) of the Guidelines governs. In doing so, the Second Circuit joined the First, Fourth, Sixth and Eleventh Circuits in finding that it is not necessary for a defendant to succeed in obstructing justice to qualify for a Section 2J1.2(c) enhancement.  Rather, it is sufficient for the defendant to merely endeavor to do so.

How Low Is The Threshold for An Obsruction Of Justice Enhancement?

United States v. Baker, No. 05-1739, 2006 WL 328293 (2d Cir. Feb. 13, 2006)

One question (in Vermont, at least).

At trial, Baker took the stand and, according to the district court, "thwarted the government's attempt to impeach him by refusing to answer a question directly relevant to direct examination, despite the court's insruction for him to do so."  Well, the court must have been pretty ticked with Baker because it found that his refusal to answer that solitary question merited a 2 level enhancement to his Guidelines offense level for obsruction of justice (U.S.S.G. 3C1.1).  And then the Second Circuit, giving the district court "due deference in its application of the Guidelines to the facts," affirmed the enhancement. 

Yes, Baker should have answered the question.  But 2 offense levels seems like an awfully severe penalty for a defendant who is not otherwise accused of having testified falsely.