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December 30, 1976

Norman RUBINSON, Defendant

The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

 On May 15, 1975, Norman Rubinson was sentenced to a term of 3 years on each of two counts (conspiracy to violate the securities laws and transportation of unregistered securities for sale in interstate commerce). These sentences were to run concurrently with each other.

 By letter dated August 5, 1976, which the court construed as a motion pursuant to Rule 35, Fed.R.Crim.P., Rubinson applied to this court for reduction of sentence. After considering the grounds set forth in his letter, the court denied the motion by order filed on August 12, 1976.

 In response to the court's letter to Mr. Rubinson of August 9, 1976, explaining that its action was based on a lack of new evidence in mitigation of sentence, Mr. Rubinson again wrote to the court on August 12, 1976, setting forth further factors which, he felt, should be considered by the court in mitigation of his sentence. Notably, Mr. Rubinson averred that he was suffering from a heart condition which had necessitated his transfer from the federal facility at Eglin Air Force Base to the Comprehensive Health Unit at the Lexington Federal Correctional Institution. The court thereupon wrote to the Medical Director at Lexington, inquiring as to the current status of Mr. Rubinson's health. When the court was subsequently informed by letter from Dr. Thornton Scott at the Lexington Institution that Mr. Rubinson had exhibited no cardiac disorder since his arrival at Lexington, the court, by letter to Mr. Rubinson dated September 30, 1976 and by order filed on October 5, 1976, denied the request in the letter of August 12, 1976, which it construed as a motion for reconsideration.

 By letters dated November 11, 1976 and December 11, 1976, Mr. Rubinson has again asked that the court reconsider its previous denial of his motion for reduction of sentence. As a basis therefor, he noted principally that his co-defendant, Sidney Stein, who had initially been sentenced to ten years incarceration, has been released by another judge of this Court on probation after serving about nineteen months in prison. Stein had been sentenced to a total of ten years, and $25,000 in fines.

 Stein, who had pleaded guilty to 3 counts, had taken an appeal from this court's denial of his several motions to reduce his sentence. The Court of Appeals for the Second Circuit vacated Stein's sentence and remanded the case for resentencing before another judge. United States v. Stein, 544 F.2d 96 (2d Cir. 1976). It was pursuant to this directive that Stein's sentence was then reduced to time served, about 19 months, to be followed by 5 years probation. Having been sentenced to a term of 10 years, Stein would have been eligible for parole after he had served 3 years and four months. His release after 19 months approximately corresponded to the time he would have been eligible for parole had his initial sentence been five years on each of two counts and two years on a third count, all to be served concurrently. His original sentence was five years and two years to be served concurrently, and five years on a third count to be served consecutively.

 The underlying charges and facts in Rubinson's case and with respect to Stein's sentence and appeal are adequately set forth in the Government's brief on Stein's appeal, which is attached hereto as Appendix A, and in the opinion of the Court of Appeals on Stein's appeal and therefore need not be repeated here. See also United States v. Rubinson, 543 F.2d 951 (2d Cir. 1976).

 The Government has opposed Rubinson's motion on the ground that he failed to cooperate with the Government as Stein did. This is true. However, in this court's view, the disparity in sentence now occasioned by Sidney Stein's reduction of sentence to time served (19 months) and Stein's release on probation, in view of Stein's relative culpability and past record, makes the sentence of incarceration previously imposed upon Mr. Rubinson disproportionately excessive and unjust. See concurring opinion of Lumbard, J. on appeal of Stein. Under present Parole Board Guidelines, Rubinson would not be eligible for parole on his three year sentence until he has served 16 to 20 months. He could, therefore, well end up serving more time than Stein whose past criminal record, by his own admission, included the manipulation of 200 to 300 stock issues. *fn1"

 Accordingly, the court reconsiders its previous denial of Mr. Rubinson's timely Rule 35 motion dated August 5, 1976 and orders that Mr. Rubinson be committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of Two (2) Years on each of Counts 1 and 14 to run concurrently with each other. An appropriate amended form of judgment will be entered.


 Appendix A to follow.


 United States Court of Appeals for the ...

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