United States District Court, S.D. New York
August 2, 2005.
UNITED STATES OF AMERICA
CHRISTIAN T. VIERTEL, Defendant.
The opinion of the court was delivered by: JOHN KOELTL, District Judge
MEMORANDUM OPINION & ORDER
This case has been remanded to this Court for further
proceedings in conformity with United States v. Crosby,
397 F.3d 103 (2d Cir. 2005). See also United States v. Booker,
125 S.Ct. 738 (2005). The Court has carefully reviewed the
submissions of the parties and has concluded that, fully aware
that the Sentencing Guidelines are only advisory and that the
Court is to consider all of the factors in 18 U.S.C. § 3553 (a),
the Court would not have sentenced the defendant to a different
sentence. The sentence consisted principally of a term of
imprisonment of twenty-one months and a term of supervised
release of three years. That sentence was supported by a
preponderance of the evidence established at trial and was wholly
reasonable after considering all of the factors in
18 U.S.C. § 3553(a).
The sentence reflected the nature of the offense and the
history and characteristics of the defendant. The Court indicated at sentencing that the Court had considered various
applications for downward departures and denied them. The Court
also noted that the Court had considered the defendant's personal
circumstances. The fraud was extensive and the defendant's
participation was extensive and lengthy. The sentence was
sufficient but no greater than necessary to reflect the
seriousness of the offense and the need for deterrence. The
sentence also avoided unwarranted sentencing disparities by being
consistent with the Sentencing Guidelines.
Indeed, the sentence in this case was wholly reasonable. The
Court made detailed factual findings at sentencing based on the
trial record and found that the amount of the loss was
approximately $345,000. (Transcript of proceedings held Jun. 9,
2003, at 14.) This was substantially less than the amount of the
loss that was urged by the Government and the Probation
Department and represented the amount of loss for which the
evidence established the defendant was responsible. The Court
noted that the amount of the loss warranted an eight level
increase under the applicable 1995 Sentencing Guideline, and that
"an 8 level increase is warranted for a loss in excess of
$200,000 and the court finds that no reasonable view of the
evidence would indicate that the amount of the loss for which the defendant was responsible could be less than $200,000." (Id.)
Considering all of the factors in 18 U.S.C. § 3553(a), the
sentence was reasonable and, aware of its discretion, the Court
would not have imposed a different sentence from the one that was
imposed on the defendant. The defendant's motion for resentencing
is therefore denied.
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