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Showing posts from August, 2007

Court reverses below-guidelines sentence as substantively unreasonable

In its 2-1 decision in United States v. Tomko, Case No. 05-4997, the Third Circuit vacated a probation-only sentence for tax evasion as substantively unreasonable. Judge Fisher wrote for the majority. Judge Smith wrote a forceful dissent.

Facts: Tomko, a construction company owner, built a large, well-appointed new home for himself. He asked the subcontractors who were working on the house to falsify their invoices so that it would look like their work on his house was really done on projects for his construction company. He then paid for the work through his construction company and had the company write off the work from its taxes as a business expense. Tomko did not report the company’s paying for his home as income on his tax returns. He subsequently pleaded guilty to one count of tax evasion in violation of 26 U.S.C. § 7201, and stipulated to a tax deficiency of $228,557.

After correctly calculating Tomko’s offense level (13), criminal history category (I), and advisory Guidelines …

Third Circuit affirms convictions and sentence in bank fraud/money laundering conspiracy

On August 20, 2007, the Third Circuit ordered published its July 31, 2007, opinion in United States v. Greenridge, Case No. 05-4887, which concerned a bank fraud and money laundering conspiracy. The conspiracy involved stealing corporate checks, falsifying the payee names thereon, and depositing the checks in business and personal accounts to make the funds appear legitimate. The defendants raised a variety of issues challenging their convictions, and one of the defendants challenged his sentence as unreasonable.

The Third Circuit affirmed the district court on all of the issues. It held that the district court (1) properly refused to instruct the jury on a variance between the indictment (which alleged a single conspiracy among the defendants on each count) and the proof at trial (which defendants said instead showed a conspiracy per defendant per count); (2) did not abuse its discretion by admitting evidence of a defendant’s prior crime to impeach the credibility of an out-of-court s…

Restitution Requirements Under Section 3664(f)(2) Are Satisfied Without Express Findings

In United States v. Lessner, the 3C addressed and rejected a number of sentencing challenges and held, inter alia, that sentencing courts need not make explicit findings on the record in support of a restitution order, so long as the record evidences the court’s consideration of the statutory factors.

Defendant, a procurement contracting officer for a federal agency, pled guilty to all 21 counts of an indictment charging her with wire fraud, defense procurement fraud, destruction of records in a federal investigation, and destruction and removal of property to prevent seizure. The district court denied defendant’s request for a downward departure based on diminished capacity, and calculated an advisory range of 51 to 63 months, based on an offense level of 24 and criminal history category of I. The offense level reflected the court’s assessment of a 2-level enhancement for obstruction of justice and its denial of a downward adjustment for acceptance of responsibility. The court imposed…

“Guidelines-centric” approach “reasonable and effective” where sentence was reduced by downward departure

In United States v. Hankerson, No. 06-3291 (3d Cir. 7/31/07), the Third Circuit rejected as meritless appellant’s reasonableness and ineffective assistance of counsel challenges to his 121-month sentence. That sentence reflected a downward departure based on overstatement of criminal history from the career offender-enhanced advisory guideline range of 188 to 235 months.

The Court deemed the sentence procedurally reasonable in that the district court first correctly calculated the guidelines, then considered defendant’s requests for downward departures, and then meaningfully considered the § 3553(a) factors. In ruling the sentence substantively reasonable as well, the Court noted the district court’s granting of a downward departure and its consideration of defendant’s personal history and circumstances. Taking into account its "deferential posture" toward sentencing decisions and the Supreme Court’s instruction in Rita that a within-guidelines sentence is more likely to be r…