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UNITED STATES v. ROCK

July 3, 1995

UNITED STATES OF AMERICA, Appellee, against JOHN G. ROCK, Appellant.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 This is an appeal by John G. Rock from a sentence imposed on him by U.S. Magistrate Judge Ralph W. Smith. Rock argues that Judge Smith erred in the determination of his base offense level and in the determination of several enhancements to his sentence.

 I. Background

 Appellant John Rock owns and resides at the Split Rail Farm located in Saratoga Springs, New York. Between 1986 and 1988, Rock was alleged to have charged hundreds of individuals and businesses for dumping solid waste at his farm.

 On February 19, 1988, a jury found Rock guilty of violating 6 N.Y.C.R.R. § 360.2(b) -- operating a solid waste management facility without a permit. Rock was sentenced to pay $ 1500. Later, on two separate occasions, Rock was again charged with the same violation. (September 14, 1988 and September 15, 1988). On each of these occasions, Rock entered an "Alford" plea (New York State's version of nolo contendere) and was likewise sentenced to pay $ 1500.

 From 1986 to 1988, Rock's dump was also the subject of extensive civil litigation as local and state officials sought to close it down. On November 10, 1987, the Honorable Edward S. Conway, Justice of the Supreme Court of New York, imposed a temporary restraining order on Rock's dumping operation at the Split Rail Farm. That order was vacated on December 1, 1987 and Rock was ordered to apply for a Special Use Permit from the Zoning Board of Appeals of the Town of Milton. In January 1989, Rock's application was denied by the zoning board.

 In 1994, Rock was charged with failure to file a federal income tax return for 1988 along with other violations. On September 22, 1994, Rock consented to proceed before U.S. Magistrate Judge Ralph W. Smith, in the misdemeanor count against him. Pursuant to a written plea agreement, Rock pleaded guilty to violating 26 U.S.C. § 7203 -- willful failure to file a return, supply information, or pay tax. Section 7203 states in full:

 
Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax, make such return, keep such records, or supply such information...shall in addition to other penalties provided by law, be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $ 25,000 ($ 100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.

 26 U.S.C. § 7203.

 In the Addendum to the Presentence Report, dated November 23, 1994, Rock objected to all of the components of Judge Smith's calculation, except for the 2 level subtraction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility. On appeal, Rock contends that his maximum sentence under the guidelines should have been 0 to 6 months. Rock further asks this court for his immediate release since he has already served 6 months in prison.

 II. Discussion

 The statute that sets the scope of review in this case is 18 U.S.C. § 3742. "Upon review of the record, the court of appeals shall determine whether the sentence (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside the applicable guideline range, and is unreasonable. . . ." 18 U.S.C. § 3742(e). 18 U.S.C. § 3742(e) further states:

 
The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

 Id.; see United States v. Echevarria, 33 F.3d 175, 178 (2d Cir. 1994); United States v. Deutsch, 987 F.2d 878, 884-85 (2d Cir. 1993). While appellate courts are to give deference to lower courts' finding of facts, appellate courts are to review lower courts' determinations of law on a de novo basis. United States v. Echevarria, 33 F.3d 175, 178 (2d Cir. 1994).

 As mentioned above, this district court is sitting as an appellate court to Magistrate Judge Smith's sentencing decision. Therefore, this court is to review Judge Smith's sentencing determination with the same deference as if the imposed sentence arose out of this court and was being decided by the court of ...


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