U.S. v. A-Abras Inc.

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-1465,A-ABRAS
• Citation: 185 F.3d 26
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v.INC., Defendant, OSIP TASK, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 26

185 F.3d 26 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. A-ABRAS INC., Defendant, OSIP TASK, Defendant-Appellant.

Docket No. 98-1465

August Term, 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued March 9, 1999

Decided July 19, 1999

Defendant Osip Task appeals the judgment of conviction and sentence entered on August 3, 1998 in the United States District Court for the Southern District of New York (Batts, J.), requiring him, inter alia, to pay a municipal fine at a specified rate as a condition of supervised release, following his plea of guilty to a charge of supervising and controlling an illegal removal of asbestos, in violation of the Clean Air Act, 42 U.S.C. §7413(c)(1).

Sentence orally imposed affirmed, and case remanded for amendment of the judgment.

[Copyrighted Material Omitted]

HENRIETTE D. HOFFMAN, New York, New York (Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, of counsel), for Defendant-Appellant Osip Task.

STEPHEN J. RITCHIN, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney, Christine H. Chung, Assistant United States Attorney, Southern District of New York, New York, New York, of counsel), for Appellee United States of America.

Before: CARDAMONE, STRAUB, and KEITH^*., Circuit Judges

CARDAMONE, Circuit Judge:

North of Antarctica where the Atlantic and Pacific Oceans meet in the Waddell Sea, the conditions ordinarily are stormy and turbulent, so that navigating there must be done with great care. This appeal requires us to visit a turbulent and unsettled area of the law where federal power and state sovereignty meet, and that area too, must be entered with great care.

Defendant Osip Task (defendant or appellant) appeals the judgment of conviction and sentence entered on August 3, 1998 in the United States District Court for the Southern District of New York (Deborah A. Batts, J.), following his plea of guilty to supervising and controlling an illegal removal of asbestos, in violation of the Clean Air Act, 42 U.S.C. §7413(c)(1). Among other penalties, the written judgment requires Task to pay a fine of $22,000 to the City of New York Environmental Control Board (Board) at the principal rate of $611.11 per month over three years.

Defendant contends on appeal that (1) the written judgment conflicts with the trial court's oral pronouncement of sentence, which did not include a federal fine, but simply imposed the obligation to pay a preexisting municipal fine as a condition of supervised release, and (2) this condition must be vacated because principles of federalism bar a federal court from requiring payment of a state or local fine at a specified rate. We reject defendant's second contention in the discussion that follows, but agree that the written judgment misstates his sentence. Accordingly, we affirm the sentence as orally pronounced, and remand the case for amendment of the judgment.

BACKGROUND

Osip Task, a 51-year-old former resident of the Soviet Union and now a naturalized American citizen, formed A-Abras Inc., an asbestos removal business, in 1993. He was the sole owner and president of the company and succeeded in obtaining a license to perform asbestos removal work. Between January 24 and 27, 1995 Task and four assistants removed asbestos pipe insulation from the basement and boiler room of an apartment building at 327 Central Park West in Manhattan under a $20,000 contract. On January 27, 1995 New York City police and inspectors from the City Department of Environmental Protection and City Department of Sanitation visited the work site. Based on what the inspectors observed regarding Task's methods of asbestos removal, the municipal charges that underlie the present appeal were filed. The Environmental Control Board determined that such removal was conducted in a manner that violated the Rules of the City of New York, Title 16, §§ 8-04a, -05a. Task admitted the charge, and on February 13, 1996 the Board ordered him to pay civil penalties totaling $22,000 (the City fine).

A year later a federal indictment was lodged against defendant individually and his company in the Southern District of New York arising from the asbestos removal at the same work site at Central Park West. Specifically, the indictment charged Task and A-Abras Inc. with failure to provide the U.S. Environmental Protection Agency with advance written notice of the planned removal, failure to wet the asbestos material adequately before stripping it from the pipes, and failure to keep the asbestos wet until it was collected and contained, all allegedly in violation of the Clean Air Act, 42 U.S.C. §§7412, 7413(c)(1), and a regulation promulgated thereunder, 40 C.F.R. §61.145. On September 16, 1997 the government dismissed the charge against A-Abras Inc. by filing a nolle prosequi, and on October 24, 1997 Task pleaded guilty to a violation of §7413(c)(1) pursuant to a written plea agreement with the government.

At sentencing, on July 27, 1998, defense counsel urged a lenient sentence because defendant already had been penalized for his wrongdoing by imposition of the City fine. Although conceding he had not yet paid it, Task said he was prepared to do so. The district court imposed sentence orally, giving defendant three months' imprisonment followed by three years' supervised release, with the special conditions that he serve three months' home confinement and "pay his fine of $22,000 to the City of New York Environmental Control Board at the principal rate of $611.11 a month." The sentencing court added, however, that it was "not enforcing or adding interest as a component of these special conditions." A week later, on August 3, 1998, written judgment was entered requiring, in part, that defendant "shall pay a fine of $22,000.00," payable to the "Board at the principal rate of $611.11 a month." This appeal followed.

DISCUSSION

I The Written Judgment

Appellant first points out that the written judgment, insofar as it imposed sentence, should be remanded to permit the district court to amend it to conform to the oral sentence. In particular, he notes that while his oral sentence required him to pay the City fine as a condition of supervised release, the judgment imposes a federal fine, payable to the Board and distinct from any preexisting fines. The government commendably concedes this point.

Where an unambiguous oral sentence conflicts with the written judgment, the constitutional right of a defendant to be present at sentencing dictates that the oral pronouncement of sentence must control. See United States v. DeMartino, 112 F.3d 75, 78-79 (2d Cir. 1997). The written judgment of commitment serves merely as evidence of the court's authority to have its sentence executed. See United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995); United States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974). In cases involving such conflict, Rule 36 of the Federal Rules of Criminal Procedure authorizes the district court "at any time, to amend the written judgment so that it conforms with the oral sentence pronounced by the court." Werber, 51 F.3d at 347; accord DeMartino, 112 F.3d at 81 ("Had the district court simply inadvertently mistranscribed the oral sentence, Rule 36 would have been the proper mechanism for relief."); United States v. Corey, 999 F.2d 493, 496-97 (10th Cir. 1993). Remand for amendment of the written judgment pursuant to Rule 36 is therefore appropriate.

II The City Fine

Task next contends that the special condition requiring payment of the City fine must be vacated because principles of federalism bar a federal court from requiring payment of a state or local fine at a specified rate. Since he challenges his sentence on a purely legal issue, we review it de novo.

A. Plain Error

The government asserts that because appellant failed to object at sentencing to this condition of supervised release, we should not reach the merits absent plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. Task responds by pointing to his lack of notice of this condition prior to sentencing, as well as to the haste with which the condition was pronounced at sentencing. He cites in support of his response prior decisions of this Circuit that do not rely on the plain-error standard to vacate a sentence, but look instead at equitable considerations to accomplish that result, notwithstanding the defendant's failure to object. See, e.g., United States v. Leung, 40 F.3d 577, 585-86 & n.2 (2d Cir. 1994) (recognizing defendant's reluctance to suggest at sentencing that judge's remarks revealed ethnic bias).

Even assuming the validity of the government's assertion - that this issue is governed by the rule of plain error - our precedents nonetheless make clear that "an imposition of a sentence in violation of law would be plain error." United States v. Eng, 14 F.3d 165, 172 n.5 (2d Cir. 1994) (citing United States v. Pico, 966 F.2d 91, 92 (2d Cir. 1992) (per curiam)); accord United States v. Abrar, 58 F.3d 43, 47 (2d Cir. 1995) (same); cf. United States v. Kinlock, 174 F.3d 297, 299 (2d Cir. 1999) ("[A]n improper order of restitution constitutes an illegal sentence and, therefore, plain error."). Clearly a sentence that violated principles of federalism would constitute a sentence imposed in violation of law. But since, in any case, we reject appellant's federalism argument on the merits, we need not further discuss the government's assertion of the plain-error standard.

B. Supervised Release in General

Supervised release, also known as probation, is a "[s]entence imposed for commission of crime whereby a convicted criminal offender is released into the community under the supervision of a probation officer in lieu of incarceration." Black's Law Dictionary 1202 (6th ed. 1990) (citing State v. Fields, 686 P.2d 1379, 1387 (Haw. 1984)). Supervised release is not an entitlement a defendant possesses,...