U.S. v. Golomb, 202

• Decision Date: 13 February 1987
• Docket Number: No. 202,D,202
• Parties: UNITED STATES of America, Appellee, v. Benzion GOLOMB, Defendant-Appellant. ocket 86-1276.
• Court: U.S. Court of Appeals — Second Circuit

Page 787

811 F.2d 787

UNITED STATES of America, Appellee, v. Benzion GOLOMB, Defendant-Appellant.

No. 202, Docket 86-1276.

United States Court of Appeals, Second Circuit.

Submitted Nov. 24, 1986.

Decided Feb. 13, 1987.

Kenneth Roth, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., of counsel), for appellee.

Alan Ellis, Philadelphia, Pa. (Ellis and Newman, P.C., Peter Goldberger and David McGlaughlin, Philadelphia, Pa., Stanley M. Meyer, New York City, of counsel), for defendant-appellant.

Before MANSFIELD, ^* PRATT and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Benzion Golomb appeals from a resentencing proceeding in the District Court for the Southern District of New York before Judge Mary Johnson Lowe in which he was sentenced to ten consecutive terms on twelve counts of an indictment, for a total sentence of 24 years. We affirm the consecutive sentences, except that we vacate the convictions and sentences relating to Counts Two and Three. We also direct a minor modification in the restitution order.

BACKGROUND

Following a jury trial before Judge Lowe, Benzion Golomb was convicted on twelve counts of an indictment charging a series of property crimes. It was Golomb's first conviction. Count One charged a conspiracy to commit various substantive offenses relating to Golomb's fencing operation. Counts Two and Three charged receipt of stolen United States Treasury checks. Count Four charged receipt in interstate commerce of the proceeds of burglaries. Counts Five and Six charged mail fraud based on a scheme to defraud the New York State Department of Labor. Counts Seven through Eleven charged interstate transportation of checks which had been stolen and forged. Four of these stolen checks were drawn on the account of the Mariners' Family Home in Staten Island, a residence for the widows and orphans of seamen. Count Twelve charged use of a stolen credit card.

On July 3, 1984, Judge Lowe sentenced Golomb to various terms of imprisonment on the twelve counts and then, without explanation, ordered that all but one count were to run consecutively, for a total prison term of 26 years. Judge Lowe also fined Golomb $10,000 and ordered restitution to certain victims in the amount of approximately $102,000.

On January 28, 1985, this court (Newman, J.) affirmed the convictions, but vacated Golomb's sentence. The case was remanded with instructions to reconsider "the extent to which the sentences should run consecutively and to provide an adequate explanation for the decision reached upon such reconsideration." United States v. Golomb, 754 F.2d 86, 91 (2d Cir.1985). The court was guided in its decision by the new sentencing statute, 18 U.S.C. Sec. 3553 (which was added to the criminal code by the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, and takes effect on November 1, 1987), which it found to be a pertinent "expression of congressional sentiment." 754 F.2d at 90. Under this statute, federal district judges will be required to provide an explanation for every sentence they impose. See 18 U.S.C. Sec. 3553(c). Noting that the eleven consecutive sentences imposed an unusually long term upon a "first offender," the court held that "[u]nder all the circumstances, we believe this is that rare case where even under existing law a statement of reasons is required." Id. at 91. The opinion also specifically questioned the propriety of imposing consecutive sentences on the two counts involving sales of Treasury checks to Golomb by federal agents on consecutive days.

On remand, Judge Lowe essentially reimposed the original sentence, by resentencing Golomb as follows: four years on Count 1; two years each on Counts 2 and 3; five years on Count 4; two years each on Counts 5 through 11; and one year on Count 12. The sentences on Counts 5 and 6 were concurrent, as they were in the original sentence. The only change from the first proceeding was that the sentences on Counts 2 and 3 (receipt of stolen Treasury checks) were to be served concurrently, thereby reducing the sentence by two years. Judge Lowe decided to run these two sentences concurrently out of "deference to Judge Newman's opinion." All other sentences were still consecutive, for a total term of 24 years.

Golomb now contends that even though Judge Lowe provided a comprehensive statement of reasons for the resentencing decision, she nevertheless failed to comply with this court's instructions. He also raises several other claims regarding the propriety of his sentence, only some of which merit discussion.

I. The resentencing proceeding

We are satisfied that Judge Lowe complied with this court's direction to reconsider and explain Golomb's lengthy sentence. Although Golomb contends that the resentencing proceeding was merely a replay of the original, Judge Lowe in fact did much more than repeat her reasons for imposing the various individual sentences. Following Judge Newman's suggestion, she explained her imposition of so many consecutive terms by reference to the factors set forth in 18 U.S.C. Sec. 3553(a). In particular, Judge Lowe observed:

[T]he defendant was convicted of multiple, serious, independent felonies that victimized every element in our society, including federal and state governments, charitable and business institutions and private citizens ... Mr. Golomb has preyed on society for years and now seeks to avoid responsibility for his antisocial conduct by arguing that all of the independent acts he committed were part of a single conspiracy.

In response to this court's caution that there is a difference between recidivists and first offenders like Golomb, Judge Lowe emphasized that Golomb was a first offender in name only. His attitude and behavior were far more similar to those of the typical repeat offender. For example, on various occasions when law enforcement officials seemed to be on his trail, Golomb concocted elaborate schemes to evade detection and then redoubled his criminal efforts. Judge Lowe thus concluded:

The simple fact that this defendant was able to continue his victimizing of other persons without interruption by either the police or the court, causing him to effectively convert a way of crime into a business of crime, should not inure to his benefit. His repeated criminal conduct has shown his total contempt of the rules by which we govern ourselves.

Golomb also argues that Judge Lowe improperly based his sentence in part on two prior arrests which had resulted in acquittals. One was a 1969 arrest for failing to report for induction; the second was a 1979 arrest for receipt of stolen property. Judge Lowe did observe that "these arrests may be considered on sentencing," but the resentencing transcript does not support Golomb's contention that his sentence was in any way "based" on these two arrests. Judge Lowe mentioned them more for the sake of providing a complete background history before stating, "of more material import, however, is that at sentencing, the government informed this court that in addition to the stolen property that was taken during the seven New Jersey home burglaries, this defendant purchased stolen property from a series of burglaries in New York."

A sentencing judge may rely on evidence of crimes of which a defendant has been acquitted. See United States v. Roland, 748 F.2d 1321, 1327 (2d Cir.1984); cf. United States v. Ortiz, 742 F.2d 712, 714 n. 3 (2d Cir.) (sentencing judge may consider prior arrest that led to dismissal as evidence of defendant's background), cert. denied, 469 U.S. 1075, 105 S.Ct. 573, 83 L.Ed.2d 513 (1984). Any error which Judge Lowe might have committed by stating that arrests alone could be considered on sentencing must be viewed as harmless in light of the overwhelming evidence of Golomb's extensive criminal activities.

In its prior opinion, this court did not reach Golomb's claim that the sentence violated the eighth amendment because it was grossly disproportionate to the offense and to sentences imposed in equivalent cases. See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Golomb now renews this claim.

First of all, it should be noted that all the individual sentences were well within--and in most cases much less than--the statutory maximums. Indeed, if the maximum sentences were aggregated, Golomb could have received a 105 year sentence, compared to the 24 years he actually received. Lengthy consecutive sentences have been upheld as constitutional in several previous cases. Carmona v. Ward, 576 F.2d 405, 430-31 (2d Cir.1978) (Oakes, J., dissenting) (collecting cases), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 58 (1979); see also United States v. Bonnet, 769 F.2d 68, 71 (2d Cir.1985). As Judge Newman pointed out in the first Golomb opinion, "it would take an extraordinary set of circumstances to demonstrate that the cumulation of valid sentences for distinct offenses constitutes cruel and unusual punishment." 754 F.2d at 90.

No such extraordinary circumstances are present in this case. Golomb was found to have engaged in a series of independent criminal ventures, and to have procured the assistance of many other individuals for his enterprises. Judge Lowe further noted that Golomb was unrepentant and was likely to continue in his ways unless he was incarcerated for a substantial period. Moreover, even though the actual sentence is quite long, Golomb may well be released on parole after serving only a third of it. A reviewing court may take parole expectations into account when evaluating the severity of a sentence, see Ortiz, supra, 742 F.2d at 715. For all these reasons, Golomb's claim that his sentence is so disproportionate as to constitute cruel and unusual punishment must fail.

Finally, Golomb challenges the restitution order which directed him to compensate several of the burglary victims in the amount of approximately $20,000, and to pay the Mariners' Family Home $80,909,...