United States v. Toohey
Opinion of the Court
SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is VACATED and REMANDED.
Defendant-appellee pleaded guilty pursuant to a plea agreement to one count of making a willfully false statement of his total income on a 1994 federal tax return in violation of 26 U.S.C. § 7206(1). Defendant acknowledged in the plea agreement that his United States Sentencing Guidelines sentencing range consisted principally of 15 to 21 months’ imprisonment.
At sentencing on May 19, 2003, the District Court departed downward six levels, requiring the defendant to serve two years of probation and to pay a $20,000 fine. Asked by defense counsel whether the downward departure signified that the Court had adopted the argument urged by the defense’s motion for downward departure, the Court explicitly rejected the argument that the “impact upon Mr. Too-hey’s employees and clients” justified a downward departure. Instead, it referred (though not by name) to another case, in which “another lawyer ... did, in [the Judge’s] mind, much crasser work vis-a-vis the income tax laws than did [defendant],” and in which the Court “did not put [the defendant] in jail.”
On appeal, the Government challenges the Court’s downward departure in sentencing on the grounds that (1) the downward departure was granted without the notice required by Federal Rule of Criminal Procedure 32(h)
The Sentencing Guidelines provide that sentencing courts may grant “downward departures” from the penalty normally imposed by the Guidelines in some circumstances, but discretion in this area is circumscribed. Among other procedural and substantive requirements, the District Court must notify the parties before sentencing that it is considering a departure, see Fed. R.Crim. Proc. 32(h); Burns, 501 U.S. at 135-36 & n. 4, and the Court’s “specific reason” for departing from the otherwise appropriate sentence must be articulated “in open court,” “at the time of sentencing,” 18 U.S.C. § 3553(c); see United States v. Cervantes, 878 F.2d 50, 54 (2d Cir. 1989), as well as “with specificity in the written order of judgment and commitment,” 18 U.S.C. § 3553(c)(2). Without such notice and explanation, reviewing courts are unable to assess whether the district court abused its discretion in departing from the sentence otherwise appropriate under the Guidelines. See, e.g., United States v. Evans, 352 F.3d 65, 71 (2d Cir. 2003); United States v. Thorn, 317 F.3d 107, 131 (2d Cir.), cert, denied — U.S. -, 123 S.Ct. 2232, 155 L.Ed.2d 1119 (2003).
We conclude that the District Court’s decision to depart downward in this case lacked the explanation required by 18
Moreover, the District Court’s order of judgment and conviction, which, according to § 3553(c)(2), must also state the reason for departure “with specificity,” see id., made no mention of any particular reason for departure. Instead, it merely cited U.S.S.G. § 5K2.0, which generally authorizes downward departures. We have specifically held that such a citation, without more, is not sufficient to satisfy § 3553(c)(2). See Evans, 352 F.3d at 72. Nor did the District Court’s subsequent order, entered May 29, 2003 in response to a letter from the Government pointing out the written judgment’s deficiency under § 3553(c)(2), cure the original written judgment’s lack of specificity, insofar as it merely reproduced that portion of the transcript of the sentencing hearing in which the District Court made vague reference to an unnamed case.
Accordingly, we hold that the downward departure was granted in violation of the United States Sentencing Guidelines for the second reason the Government raises on appeal.
For the foregoing reasons, the sentence imposed by the District Court is VACAT
. Federal Rule of Criminal Procedure 32(h) provides:
Before the Court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.
. Because we vacate the sentence and remand for violation of IS U.S.C. § 3553(c)(2), we do not reach the question whether the government forfeited its notice argument by failing to raise it before the District Court. We note merely that, upon remand, the District Court is bound to give notice of any ground upon which it contemplates granting a downward departure, pursuant to Fed. R.Crim. Proc. 32(h).
. We need not reach the question of notice, which the Government also argued on appeal, because the District Court’s failure to provide explanation is sufficient to vacate the sentence and remand for re-sentencing. Moreover, because the District Court did not articulate its justification for departing with the specificity required by the Guidelines, we cannot reach the third and fourth arguments urged by the Government, which seek review of the District Court’s apparent justification for departure.
Reference
- Full Case Name
- United States v. Timothy J. TOOHEY
- Cited By
- 2 cases
- Status
- Published