503 F.3d 212 (2nd Cir. 2007), 05-3677, United States v. Hirliman

Docket Nº:05-3677-cr(L), 05-4006-cr(XAP), 05-4009-cr(CON).
Citation:503 F.3d 212
Party Name:UNITED STATES of America, Appellee-Cross-Appellant, v. Greg HIRLIMAN, Jimmy Leon, also known as Jimmy Dale, Amos Keith, Jeffrey Evans, Ronald Wilson, Edward Ingenito, also known as Buster, Joseph Scicchitano, Carlos Wiggins, Jeff Bellamy, John Bryant, Sherry Marie Boula, Omar T. Ferguson, Jamie Friel, James V. Hamilton, also known as Black, Gary Ha
Case Date:September 27, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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503 F.3d 212 (2nd Cir. 2007)

UNITED STATES of America, Appellee-Cross-Appellant,


Greg HIRLIMAN, Jimmy Leon, also known as Jimmy Dale, Amos Keith, Jeffrey Evans, Ronald Wilson, Edward Ingenito, also known as Buster, Joseph Scicchitano, Carlos Wiggins, Jeff Bellamy, John Bryant, Sherry Marie Boula, Omar T. Ferguson, Jamie Friel, James V. Hamilton, also known as Black, Gary Hanson, Thomas Johnson, also known as T, Kim Kohl, David Sharp, Earl Thomas, also known as Slim, Lorraine Benjamin, Scott Crandall, Susan Fisher, Kevin Martinelli, Lamont Parks, Terri Pearman, Michael Rhodes, Demetrious Sayles, Defendants,

Donald Benjamin, Jr., also known as Ducky, Neal Benjamin, Defendants-Appellants-Cross-Appellees.

Nos. 05-3677-cr(L), 05-4006-cr(XAP), 05-4009-cr(CON).

United States Court of Appeals, Second Circuit.

September 27, 2007

Argued: February 8, 2007.

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James P. Kennedy, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York, on the brief), Buffalo, NY, for Appellee-Cross-Appellant.

John J. Lavin, John J. Lavin, P.C., Buffalo, NY, for Defendant-Appellant-Cross-Appellee Neal Benjamin.

Vincent E. Doyle III, Connors & Vilardo, LLP, Buffalo, NY, for Defendant-Appellant-Cross-Appellee Donald Benjamin.

Before: WINTER, WALKER, and SACK, Circuit Judges.

WINTER, Circuit Judge :

Neal and Donald Benjamin appeal their sentences imposed by Judge Elfvin for various drug related offenses.1 The government cross-appeals, arguing that the district judge violated 18 U.S.C. § 3553 and a direction of this court in a previous appeal of this matter, United States v. Evans, 352 F.3d 65 (2d Cir. 2003), by failing for a second time to give notice of his decision to deviate from the Sentencing Guidelines ("U.S.S.G.") and to provide an explanation for his non-Guidelines sentences.

Because we agree with the government, we vacate the sentences and remand with instructions that the case be assigned to a different judge for resentencing.


The relevant facts are exceedingly simple. Between 1994 and 1997, the Benjamin brothers ran a drug distribution ring in and around Olean, New York, along with dozens of co-conspirators. Id. at 67-68. "The ring dealt in marijuana, cocaine, and crack and employed numerous individuals, including several youngsters under age eighteen." Id. at 68.

The Presentence Investigation Reports ("PSR") recommended an offense level of 46 for each defendant and a criminal history

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category of VI, the highest possible level, yielding a range of life imprisonment under the U.S.S.G. Id. at 70. Because none of the individual offenses for which the Benjamins were convicted carried a life sentence, the PSRs invoked U.S.S.G. § 5G1.2(d), which provides that sentences shall be served consecutively up to the guidelines sentence. Thus, the PSRs recommended stacking Donald's sentences to achieve a 240-year sentence, and Neal's to produce a 40-year sentence. Id. at 70-71.

At sentencing, on April 12, 2002, the district judge accepted the calculations of the PSRs, but departed downwards from the Guidelines, sentencing Donald to three 10-year terms (for a total of 30 years) and Neal to 20 years. Id. The judge provided no coherent explanations for these departures. With regard to Donald's sentence, the district judge said only "I must have downward departed . . . to get those three segments of ten years." Id. at 72. As to Neal's sentence, he said "I would have to assume that I have departed." Id.

The Benjamins and the government appealed. The Benjamins challenged both their convictions and their sentences, while the government argued, inter alia, in its cross-appeal that the district court committed error by not giving notice of a possible departure and by failing to articulate his reasons for departing. We rejected all of the Benjamins' arguments, in large part by summary order. United States v. Evans, 82 Fed.Appx. 726 (2d Cir. 2003). By way of a published accompanying opinion, the panel found that the district judge had "made no findings of fact or conclusions of law justifying [his] departures and thus [left] us at a total loss in reviewing defendants' sentences." Evans, 352 F.3d at 72. Accordingly, the panel vacated the sentences and remanded for resentencing "in accordance with 18 U.S.C. § 3553(c)(2) and Sentencing Guidelines 5K2.0[,]" and "direct[ed] the district court to provide clear notice to both parties of any contemplated departure." Id.

The district court again provided no notice of any intention to depart or otherwise deviate from the advisory Guidelines ranges prior to the resentencing hearings. At Donald's resentencing, the court heard from the defense and the prosecution, and then announced, "I adhere to that sentence, 360 months imprisonment." D. Benjamin Resentencing Tr. at 23. When the prosecutor asked how the court had arrived at that sentence, the judge said "I'll write you a letter" and brought the hearing to a close. Id. at 24. Judge Elfvin provided no explanation of his sentence in his written judgment, other than to check boxes indicating that he "adopt[ed] the presentence report and the Guideline[s] application[] without change" but "did not apply the federal sentencing guidelines at all in this case and imposed a discretionary sentence."

A month later, Neal was resentenced. At the outset of the hearing, the defense attorney asked about the letter the district judge had promised to explain Donald's sentence. In response, the judge asked his courtroom deputy to "give [him] a note to remind [him] about that." N. Benjamin Resentencing Tr. at 3. According to the government, no such explanatory note has been received.

The district court again provided no advance notice of any intention to deviate from the Guidelines prior to Neal's resentencing. Evidently anticipating the judge's enigmatic behavior and fearing another overturning of the sentence, Neal's attorney came to the hearing with a proposed "notice" for the judge to read into the record. The "notice" was a brief summary of several of the factors a sentencing judge is required to consider under § 3553, and read, in full:

Notice is hereby given to the government and defendant, Neal Benjamin,

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that the Court intends to depart from the advisory guidelines sentence for the following reasons: The proposed sentence is sufficient but not greater than necessary to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense,...

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