U.S. v. Sindima

• Citation: 488 F.3d 81
• Decision Date: 05 March 2007
• Docket Number: Docket No. 06-2245-cr.
• Parties: UNITED STATES of America, Appellee, v. Felix SINDIMA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

488 F.3d 81

UNITED STATES of America, Appellee, v. Felix SINDIMA, Defendant-Appellant.

Docket No. 06-2245-cr.

United States Court of Appeals, Second Circuit.

Argued: December 15, 2006.

Decided: March 5, 2007.

As Amended: May 21, 2007.

Marybeth Covert, Federal Public Defender's Office, Buffalo, NY, for Defendant-Appellant.

Stephan Baczynski, Assistant United States Attorney for the Western District of New York (Terrance P. Flynn, United States Attorney, Joseph J. Karaszewski, Assistant United States Attorney, of counsel), Buffalo, NY, for Appellee.

Before: SACK, KATZMANN, and PARKER, Circuit Judges.

SACK, Circuit Judge.

Following a guilty plea on federal mail fraud charges, the United States District Court for the Western District of New York (Richard J. Arcara, Chief Judge) imposed upon the defendant, Felix Sindima, a sentence under the United States Sentencing Guidelines (the "Guidelines") of, principally, three years' probation. The terms of probation included a prohibition against Sindima's commission of any further crime. Thereafter, while still on probation, Sindima was charged with two violations of that prohibition. The district court found Sindima guilty of both. On April 13, 2006, the court imposed a sentence of thirty-six months' imprisonment, twenty-six months above the high end of the advisory Guidelines range. Sindima appeals, asserting that the sentence is substantively unreasonable.

We conclude that, based on the present record, the district court has not given an explanation of its reasons for the length of the above-Guidelines sentence that is sufficient under the circumstances to allow us to conclude with confidence that the sentence is reasonable. Cf. United States v. Rattoballi, 452 F.3d 127, 128, 137 (2d Cir. 2006) (remanding where the district court imposed upon the defendant a sentence "represent[ing] a substantial deviation from the recommended Guidelines range" and the "considerations [relied upon by the district court in so doing were] neither sufficiently compelling nor present to the degree necessary to support the sentence imposed"). Accordingly, we remand for further proceedings.

BACKGROUND

On December 9, 2002, Sindima pleaded guilty to one count of mail fraud arising out of a scheme in which he caused two computer retailers to send computer equipment to him using the names and social security numbers of others. On May 15, 2003, the district court sentenced Sindima within his Guidelines range of zero-to-six months by imposing three years' probation and restitution in the amount of $9,356.88. The provisions of Sindima's probation included the standard condition that he not commit another crime while on probation.

On August 10, 2005, while Sindima remained on probation, the government filed a petition alleging two violations of that condition—crimes he had allegedly committed and for which he had been arrested by the Buffalo Police Department.¹ On September 21, 2005, the district court conducted an evidentiary hearing. Thereafter, on December 29, 2005, the court found Sindima guilty of both charges.

The evidence presented at the hearing indicated that on or about April 26, 2005, almost two years after his mail fraud sentence, Sindima opened a series of bank accounts in the name of "FS Computers." The first was with Bank of America, where he deposited $3,200 with two checks that were eventually returned for insufficient funds. Prior to the checks being returned, Sindima withdrew $3,400 from the Bank of America account, $3,000 of which he used to establish a similar account at Evans National Bank. On June 13, 2005, after this $3,000 check and another check for $760 were returned for insufficient funds, Evans National Bank informed Sindima that his account had been suspended. Undaunted, Sindima deposited another check, but it was also returned for insufficient funds. On June 24, 2005, he then wrote a $3,700 check drawn on his still-suspended Evans account which he used to open a third account at the Greater Buffalo Savings Bank. In accordance with its policy, however, the bank placed an automatic nine-day hold on the newly opened account. This check was subsequently returned for insufficient funds, along with another check from a bank account in his wife's name, which Sindima had also sought to deposit. Sindima was eventually arrested following an attempt to withdraw $200 from and deposit $11 to the Greater Buffalo Savings Bank account.

On January 23, 2006, the district court held an initial sentencing hearing, at which time it evidently accepted the Probation Office's calculation that Sindima's violations were "Grade B"² and his criminal history category was I, for which the Guidelines prescribe an advisory range of four-to-ten months.³ The court gave the government and Sindima notice, however, that it was considering a non-Guidelines sentence of sixty months, the statutory maximum.⁴ Following adjournment of the sentencing hearing, defense counsel submitted additional letters from various persons attesting to Sindima's good character and a supplemental memorandum urging leniency.

On April 13, 2006, the district court sentenced Sindima for violation of probation. Although the high end of the advisory Guidelines range is ten months, and defense counsel and the government had "urge[d]" the district court to impose a Guidelines sentence, Tr., Apr. 13, 2006, at 14, 15, the court sentenced Sindima to, principally, thirty-six months in prison.⁵ After expressing its view that Sindima was "a danger to the community," id. at 10, the district court explained the reasons for its sentence. First, the court indicated that it sentenced Sindima to

a term of imprisonment above the recommended [G]uideline[s] range because of what I consider egregious conduct while on probation. Despite being given a substantial break by this Court by being sentenced to probation, [Sindima] went out and committed numerous additional acts of . . . fraud. He, obviously, did not learn his lesson while on probation. He's exhibited complete disregard for the rules of law.

It is clear this sentence . . . was necessary to address the extent of the criminal behavior and to deter the defendant from future acts of fraud. This is not a situation where the defendant has made an isolated bad judgment call while on probation. Instead, he engaged in a calculated pattern of fraudulent activity on a repeated basis in complete disregard of the terms of his probation.

10 Tr., Apr. 13, 2006, at 17.

Second, however, the district court was persuaded in some respects by the mitigating factors presented by defense counsel— that Sindima provided financial and emotional support to five children, that he had continued his college studies while on probation, and that he had volunteered in a center for the elderly and in his church. Id. at 6-7; see also Def's. Second Sent'g Mem. These factors "were considered and [were] the reason why" Sindima received a "lesser sentence" than the five-year statutory maximum. Tr., Apr. 13, 2006, at 17.⁶

The district court did not record its reasons for the sentence in its written judgment.

DISCUSSION

I. Standard of Review

We review sentences for reasonableness, United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which has both substantive and procedural dimensions, see United States v. Crosby, 397 F.3d 103, 114 (2d Cir.2005). In the substantive dimension in which this appeal is raised, we determine "whether the length of the sentence is reasonable," Rattoballi, 452 F.3d at 132, focusing our attention on the district court's explanation of its sentence in light of the factors detailed in 18 U.S.C. § 3553(a),⁷ see id. at 134-35.⁸

Reasonableness review "is akin to review for abuse of discretion." United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 192, 166 L.Ed.2d 143 (2006). A district court abuses its discretion when its decision "cannot be located within the range of permissible decisions" or is based either on an error of law or a clearly erroneous factual finding. United States v. Fuller, 426 F.3d 556, 562 (2d Cir.2005) (citations and internal quotation marks omitted). We have observed that "`reasonableness' is inherently a concept of flexible meaning, generally lacking precise boundaries," Crosby, 397 F.3d at 115; that it involves "some degree of subjectivity that often cannot be precisely explained," United States v. Jones, 460 F.3d 191, 195 (2d Cir.2006); and that our function in reviewing sentences is to "exhibit restraint, not micromanagement," United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005). Accordingly, "[a]lthough the brevity or length of a sentence can exceed the bounds of `reasonableness,' we [have] anticipate[d] encountering such circumstances infrequently." Id. Nevertheless, "in any particular case a sentence, assessed even against the flexible standard of reasonableness, [may] be so far above or below a Guidelines range and so inadequately explained by the sentencing judge as to require rejection on appeal." Jones, 460 F.3d at 196.

II. Section 3553(c)

A district court is statutorily required to "state in open court the reasons for its imposition of [a] particular sentence." See 18 U.S.C. § 3553(c). Where, as here, the sentence is outside of an advisory Guidelines range, the court must also state "with specificity in the written order" "the specific reason" for the sentence imposed. Id. § 3553(c)(2); see also Jones, 460 F.3d at 196; United States v. Lewis, 424 F.3d 239, 243-45 (2d Cir.2005).

"[O]ur . . . ability to uphold a sentence as reasonable will be informed by the district court's statement of reasons (or lack thereof) for the sentence that it elects to impose." Rattoballi, 452 F.3d at 134. Fulfillment of the statutory requirements of section 3553(c) thus enables us to perform reasonableness review. Cf. United States v. Pereira, 465 F.3d 515, 524-25 & n. 9 (2d Cir.2006) (discussing...