Second Circuit Affirms Large Upward Variance For Violation Of Terms Of Supervised Releases

United States v. Parrish, No. 09-2482-cr (2d Cir. June 24, 2010) (found here)

Parrish violated the terms of his supervised release, for which he faced an advisory Guidelines range of punishment of between 5 and 11 months.  The district court, though, sentenced him to 42 months imprisonment.  On appeal, that sentence was affirmed. 

In particular, the Second Circuit found that "[a]ny severity apparent in Parrish's violation sentence (almost four times the top of the Guidelines range) vanishes when one considers the tremendous leniency of his underlying sentence (barely more than one-eighth of the bottom of the Guidelines range)."  The Second Circuit went on to note that:

The Guidelines specifically provide than an upward departure may be warranted in sentencing for a violation of supervised release where a downward departure was granted at the sentencing for the underlying conviction.  Where the original downward departure was a major departure, as it was in this case, a district court may well act reasonably when it applies a major upward departure to the defendant who has been shown such leniency and has later breached that trust by violating his supervised release.

Hate to admit it, but it sounds like the right result to me.  What do you think?

Offense Level 7 (0 to 6 Months) Results In 6 Month Sentence

United States v. Diaz, No. 10-CR-170 (JBW), 2010 WL 2540552 (E.D.N.Y. June 2, 2010)

Diaz pled guilty to one count of wire fraud, for which he faced an advisory Guidelines range of imprisonment of between 0 and 6 months.  Surprisingly, he was sentenced to 6 months in prison.  Why?  

Defendant's offenses was a serious betrayal of public trust. Tests of the kind administered by defendant must be accurate to ensure the soundness of construction and the safety of the public. An incarceratory sentence is warranted. The court has the power to go above the guidelines range in sentencing this type of offense, but a sentence within the guidelines is sufficient in light of defendant's good work history, his intelligence, his efforts to advance himself through education, the work he has done to support his family, and his close relationships with his daughters and granddaughters.

United States v. Diaz, No. 10-CR-170 (JBW), 2010 WL 2540552 (E.D.N.Y. June 2, 2010)

Diaz pled guilty to one count of wire fraud, for which he faced an advisory Guidelines range of imprisonment of between 0 and 6 months.  Surprisingly, he was sentenced to 6 months in prison.  Why?  

Defendant's offenses was a serious betrayal of public trust. Tests of the kind administered by defendant must be accurate to ensure the soundness of construction and the safety of the public. An incarceratory sentence is warranted. The court has the power to go above the guidelines range in sentencing this type of offense, but a sentence within the guidelines is sufficient in light of defendant's good work history, his intelligence, his efforts to advance himself through education, the work he has done to support his family, and his close relationships with his daughters and granddaughters.

The Ex Post Facto Clause and the Sentencing Guidelines

United States v. Gilmore, Docket No. 07-0349-cr (2d Cir. March 17, 2010) (found here)

Well, Gilmore did NOT answer the question that "remains open" in the Second Circuit with regard to the ex post facto clause -- to wit, whether transformation of the Sentencing Guidelines from a mandatory regime to one that is purely advisory affects the ex post facto consequences of relying on a later-enacted version of the Guidelines. 

But the Second Circuit came a little closer to answering that question when it found that the district court in Gilmore did not err and did not violate the ex post facto clause when it calculated and considered a sentence under the version of the Guidelines in effect at the time of the offense, but referred to a subsequent (and harsher) version of the Guidelines as indicative of the seriousness of the offense and the reasonableness of a non-Guidelines sentence.

One additional note: As practitioners in the Second Circuit know, the Government takes the position that the ex post facto clause is no longer an issue with regard to the Guidelines because they are now advisory rather than mandatory.  In Gilmore, however, the Government initially joined in Gilmore's request for resentencing based on an ex post facto violation.  But it subsequently submitted a letter advising the Second Circuit that it had changed its opinion, and that it believed that the ex post facto clause does not apply to the Guidelines.

For more on the application of the ex post facto clause to the Guidelines, check out my July 1, 2009 article in the New York Law Journal entitled "The Ex Post Facto Clause in the Post-Booker World," which can be accessed here.

Second Circuit Affirms Wide Upward Variance

United States v. Martinucci, 561 F.3d 533 (2d Cir. 2009)

Martinucci pled guilty to one count of producing child pornography, in violation of 18 U.S.C. § 2251(a).  For that offense, he faced a 180 month mandatory minimum, even though the advisory Guidelines indicated a 135 to 168 month term of imprisonment. 

The sentence?  300 months. 

The reason?  An upward departure under Section 5K2.8 of the Guidelines (Extreme Conduct). 

The result on appeal?  Affirmed. 

The reasoning?  "Nor is there merit to Martinucci's contention that the court acted unreasonably in departing upward under U.S.S.G. § 5K2.8 and imposing a term of imprisonment of 300 months.  The district court conscientiously reviewed the pertinent sentencing factors specified by § 3553(a) and concluded, considering the seriousness of the offense and the great harm inflicted on the victim, the defendant's recidivism, and his lack of remorse, that the need for punishment, for deterrence of others, and for protection of society justified the lengthy imprisonment term.  The court did not exceed it's sentencing discretion. . . .  In our view, the sentence was altogether appropriate."

Major Relevant Conduct Decision By The Second Circuit

United States v. Juwa, Docket No. 06-2716-cr (2d Cir. Nov. 28, 2007) (found here)

Notwithstanding an advisory Guidelines range of 24-30 months for a guilty plea to one count of possession of child pornography, Juwa was sentenced to 90 months imprisonment.  In declaring its reasons for the upward departure, the district court cited the fact that Juwa had engaged in sexual conduct with a minor "on repeated occasions."  Yet Juwa had only indicated his intent to plead guilty to one count of felony sexual abuse in a parallel state case.  It was therefore unclear to the Second Circuit to what extent the district court impermissibly based its sentencing enhancement on unsubstantiatied charged conduct, thereby rendering the 90 month sentence procedurally unreasonable.  The Second Circuit ordered a reversal and remand.

We all know that a sentence can be based on all sorts of relevant conduct, including acquitted conduct and even uncharged conduct, so long as it is established by a preponderence of the evidence.  I've criticized here the use of acquitted conduct in sentencing.  And the Second Circuit in Juwa indicates its agreement that there are limits to the use of relevant conduct in determining and imposing sentence.  As the Second Circuit held:

[T]here are distinct limits to this discretion, and they include a defendant's due process right to be sentenced based on accurate information. . . . As the Third Circuit stated in United States v. Matthews . . . "[f]actual matters considered as a basis for sentence must have 'some minimal indicium of reliability beyond mere allegation.'

In Juwa's case, the problem was the there simply was "no evidence" to support the finding that he had abused more than one child "apart from the charges contained in the state indictment," which the Second Circuit described as "bare-bones" and "insufficient to support a factual underpinning for sentencing purposes."  The Second Circuit went on to hold that:

We therefore adhere to the prescription that at sentencing, an indictment or a charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed.  Some additional information, whether testimonial or documentary, is needed to provide evidentiary support for the charges and their underlying facts.

Juwa is a move in the right direction for acquitted conduct sentencing.  It provides some procedural safeguards, and broadly requires that unsubstantiated charged conduct must have some modicum of reliability before it can be used as a basis for an enhanced sentence.  I expect that defense attorneys in the Second Circuit (and elsewhere) will rely on Juwa to test and challenge courts when consideration of relevant conduct is at issue.

Rattoballi Cuts Both Ways: Second Circuit Reverses Above-Guidelines Sentence

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.

It Is Plain Error For A Sentencing Court To Not Give Advance Notice Of Intent To Impose A Non-Guidelines Sentence Adverse To The Defendant

United States v. Gilmore, Docket No. 05-6195-cr, 2006 WL 3530539 (2d Cir. Dec. 8, 2006)

As detailed in this post, the Second Circuit in United States v. Anati applied the principles of Rule 32 of the Federal Rules of Criminal Procedure in finding that sentencing courts are required to provide defendants with notice of an intent to use the discretionary authority provided by Booker to impose, sua sponte, a "non-Guidelines sentence adverse to the defendant" because of the "significant similarity between an intent to depart and an intent to impose a non-Guidelines sentence."  In Gilmore, the Second Circuit takes the principle set forth in Anati one step further, finding that it is plain error for a sentencing court not to give such notice.

Reviewing the facts, it seems that Gilmore was in for quite a surprise at sentencing.  Gilmore's advisory Guidelines range was 97 to 121 months imprisonment, and the offense for which he pled guilty carried a 15 year mandatory minimum.  The sentencing court, however, sentenced Gilmore to 30 years imprisonment -- 15 years longer than the statutory minimum and 20 years longer than the top of the applicable advisory Guidelines range.  If the same sentence is re-imposed following remand (and proper notice), Gilmore will surely appeal its reasonableness. 

Has anyone seen a post-Booker sentence that varied upward so much from the advisory Guidelines?

Notice of Intent To Impose A Non-Guidelines Sentence Adverse To The Defendant Required

United States v. Anati, Docket No. 05-3800-cr (2d Cir. July 20, 2006)

Pursuant to Rule 32 of the Federal Rules of Criminal Procedure, a court is required to give advance notice of grounds for a sua sponte upward or downward departure so that a defendant or his counsel has an opportunity to "comment" on same.  In Anati the Second Circuit determined that a court is similarly required to provide a defendant with notice of intent to use the discretionary authority provided by Booker to impose, sua sponte, a "non-Guidelines sentence adverse to the defendant" because of the "significant similarity between an intent to depart and an intent to impose a non-Guidelines sentence." 

(In doing so, the Second Circuit joins the Fourth and Ninth Circuits in finding that Rule 32 applies to non-Guidelines sentences as well as departures.  The Third, Seventh and Eighth Circuits have held the opposite.  And the First and Eleventh Circuits have held only that the failure to provide notice does not constitute plain error.)

More On Co-Defendant Disparity From Judge Sweet

United States v. Behr, No. S1 03CR1115-02 (RWS), 2006 WL 1586563 (S.D.N.Y. June 9, 2006)

Defendant Behr was convicted -- along with two other co-conspirators -- of certain conspiracy and mail fraud offenses.  Behr, however, was involved in the conspiracy for a much shorter period of time than his co-defendants and, according to the Court, was therefore less culpable than his co-defendants.  Specifically, "unlike his co-defendants . . . who were involved in the conspiracy for over a year from its inception, Behr's involvement was at the tail end and was limited to a short period of time."  And for that reason (among others) Judge Sweet imposed a non-Guidelines sentence (which resulted in Behr's release because he had already been housed for 29 months at the MCC).  Although Judge Sweet did not address Second Circuit standards concerning the question of co-defendant disparity, Judge Sweet did interestingly note the following:

"The guidelines range for both of the planners of the fraudulent scheme . . . is 46-57 months.  Given the extensive nature of their involvement and culpability as compared to Behr's, a difference of only nine months [Behr's Guideline range was 37-46 months] does not adequately reflect the differences [between the conduct of Behr and his co-defendants]."

An interesting and alternative analysis.  Not only could one argue that a defendant should receive a shorter sentence because of short sentences imposed on co-defendants, but one could also argue that a defendant should receive a shorter sentence because the sentences imposed on more culpable co-defendants are not sufficiently disparite.

Guidelines Ranges And Violations Of Probation

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.