U.S. v. Georgiadis
| Decision Date | 23 May 1991 |
| Docket Number | No. 90-3224,90-3224 |
| Citation | 933 F.2d 1219 |
| Parties | UNITED STATES of America v. Basil G. GEORGIADIS, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Candace Cain (argued), Reding, Rea & Cooper, Pittsburgh, Pa., for appellant.
Paul J. Brysh, Bonnie R. Schlueter (argued), Office of U.S. Atty., Pittsburgh, Pa., for appellee.
Before BECKER, NYGAARD and ALITO, Circuit Judges.
Basil G. Georgiadis appeals two sentences imposed on him under the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") after he pleaded guilty to four counts of bank embezzlement in violation of 18 U.S.C. Sec. 656. Only the sentencing on counts three and four is at issue, because the embezzlements alleged in counts one and two pre-date the Guidelines. Georgiadis was sentenced under the Guidelines to eighteen months' imprisonment, and to three years of supervised release.
Georgiadis alleges two sentencing errors. First, he claims the district court did not expressly consider and reject his request for a discretionary downward departure on the record. Second, he claims it was error to enhance his offense level by two for "abuse of a position of trust".
We reject Georgiadis' allegations of error and will affirm the district court's judgment of sentence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742.
From March 1985 until January 1989, Georgiadis was employed by North Side Deposit Bank in Pittsburgh, Pennsylvania. His last position was Assistant Vice President/Mortgage Department. His job was to administer the Bank's mortgage settlement closings.
The Bank began investigating Georgiadis' work related activity when a Bank director questioned the low amount of income derived from loan origination fees (points) on mortgages made by the Bank. The investigation revealed Georgiadis had diverted $284,104.89 of mortgage settlement monies into two of his own accounts by encoding otherwise properly labeled deposit slips with his personal account numbers. To avoid suspicion, Georgiadis altered the Bank's copies of settlement sheets.
Georgiadis committed the first of his many embezzlements the same month he was hired by the Bank, and they continued until discovered and Georgiadis was discharged. He admitted taking the money, and pleaded guilty to four counts of embezzlement under a plea agreement with the government.
At Georgiadis' sentencing hearing, the district court calculated a total offense level of fourteen (14) as follows: under U.S.S.G. Sec. 2B1.1(a), the court fixed the base offense level at four (4); under Sec. 2B1.1(b)(1), the court increased the offense level by eight (8), to reflect the total financial loss from Georgiadis' embezzlements under counts three and four; under Sec. 2B1.1(b)(5) 1, the court made a two (2) level increase for "more than minimal planning"; under Sec. 3B1.3, the court added two (2) levels for "abuse of a position of trust"; and last, pursuant to Sec. 3E1.1(a), the court made a two (2) level reduction for Georgiadis' acceptance of responsibility for his crimes. Given Georgiadis' criminal history category, the total offense level of fourteen (14) indicated a Guidelines term of imprisonment of 15 to 21 months.
During the sentencing hearing and when objecting to the presentence report, Georgiadis challenged the propriety of the upward adjustment for abuse of a position of trust sought by the government, and also requested a downward departure from the Guidelines-calculated sentencing range. Nevertheless, the district court sentenced Georgiadis to eighteen months imprisonment on counts three and four, to be served concurrently with the sentence on counts one and two, the non-Guidelines counts. The district court did not make the discretionary downward departure from the Guidelines requested by Georgiadis.
Georgiadis claims the district court erred by not expressly commenting upon and rejecting his request for a downward departure. He also argues it is not clear that the district court actually considered his request.
We have jurisdiction to consider these claims, because they allege the district court committed legal (i.e., procedural) errors when imposing Georgiadis' sentence. See 18 U.S.C. Sec. 3742(a)(1) and (e)(1). If we determine the district court was aware of its authority to depart from the Guidelines, and chose not to, we are without power to inquire further into the merits of its refusal to grant Georgiadis' request. See United States v. Denardi, 892 F.2d 269, 272 (3d Cir.1989). Stated differently, we have jurisdiction to decide whether a sentencing court erred legally when not making a requested discretionary downward departure, but we cannot hear a challenge to the merits of a sentencing court's discretionary decision not to depart downward from the Guidelines. Id.
Georgiadis contends that when a defendant requests a discretionary downward departure from Guidelines sentencing ranges, a sentencing court must always indicate on the record that it knows it has authority to depart, considered the defendant's request to do so, and decided not to depart. Georgiadis claims the district court erred by not making those statements at his sentencing hearing.
Georgiadis contends that express judicial statements demonstrating a district court's exercised discretion when refusing to depart downward are needed in order to permit a court of appeals to determine whether it has jurisdiction in light of Denardi; to facilitate appellate review of sentencing; and to assist the United States Sentencing Commission in revising its Guidelines. 2
We reject Georgiadis' contentions. We hold instead that a sentencing court does not commit reversible error under the Sentencing Reform Act by failing to state expressly on the record that it has considered and exercised discretion when refusing a defendant's requested downward departure from the Guidelines.
The statute controlling judicial sentencing statements, 18 U.S.C. Sec. 3553 3, does not require the statements Georgiadis seeks. Section 3553(c) defines the only statements a district court must make during sentencing. The section requires that at the time of sentencing a judge shall "state in open court the reasons for its imposition of the particular sentence". 18 U.S.C. Sec. 3553(c). 4 This general requirement is satisfied when a district court indicates the applicable Guidelines range, and how it was chosen.
Section 3553(c) requires more specific statements of judicial reasoning in only two circumstances. First, if a sentence imposed falls within the applicable guidelines range and that range exceeds 24 months, the court must give reasons for imposing the sentence at a particular point within the range. 18 U.S.C. Sec. 3553(c)(1). Second, if a sentence falls outside the applicable guideline range, the court must state the specific reason for imposing a sentence that differs from the Guidelines. 18 U.S.C. Sec. 3553(a)(2).
Nothing in Sec. 3553(c) requires the judicial statements Georgiadis wants. We consider the statute's silence on this point dispositive. While Congress required express statements explaining downward departures granted, see 18 U.S.C. Sec. 3553(c)(2), it could have, but did not, require explanation of downward departures denied. Hence, we conclude that the Sentencing Reform Act does not require a district court to state that it has considered, and refused to make a discretionary downward departure.
The legislative history of Sec. 3553 supports our position. Although Congress anticipated that the sentencing statements required by Sec. 3553(c) may "play a role in the appellate court's decision on the legality of sentences", and that they would "assist[ ] the Sentencing Commission in its continuous reexamination of its guidelines and policy statements", see S.Rep. No. 225, 98th Cong., 2d Sess. at 80, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, at 3263, Congress did not want "the statement of reasons for a sentence within the guidelines [to] become a legal battleground for challenging the propriety of a particular sentence...." 1984 U.S.Code Cong. & Admin.News at 3262-63. Congress intended that:
Regardless of the grounds for appeal, the statement of reasons should not be subjected to such legalistic analysis that will make judges reluctant to sentence outside the guidelines when it is appropriate or that will encourage judges to give reasons in a standardized manner.
Id. at 3263 (emphasis added).
The judicial comments Georgiadis wants would give rise to the standardized sentencing statements Congress sought to avoid when it enacted 18 U.S.C. Sec. 3553(c). Furthermore, since Congress warned against making the statements required by Sec. 3553(c) into technical grounds for sentencing appeals, we will not give a sentencing court's failure to make statements not required by the statute any similar role.
The district court sentenced Georgiadis within the applicable Guidelines range, which did not exceed 24 months. Section 3553(c) only required the court to state what Guidelines range applied to Georgiadis' crimes, and why it was chosen. The district court made that statement at the sentencing hearing.
Hence the sentencing court's statements comply with the requirements of Sec. 3553(c) and the record does not show the district court believed erroneously it lacked authority to depart, see Denardi, 892 F.2d at 271, or that it failed to consider Georgiadis' request for downward departure.
Of course, we urge district courts to make sentencing decisions express whenever possible, especially when a defendant has requested a downward departure from the Guidelines. When a district court does not state clearly on the record whether the denial of a departure is based on legal or discretionary grounds, the result may be wasted resources on appeal and pointless remand.
Georgiadis argues it is not clear that the...
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