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November 10, 2005.

SEAN LAVARCO, Defendant.

The opinion of the court was delivered by: HAROLD BAER JR., District Judge[fn*] [fn*] Kohsei Ugumori, a fall 2005 intern in my Chambers, and currently a third year law student at New York Law School, provided substantial assistance in the research and drafting of this Opinion.


On April 25, 2005 the Second Circuit remanded the above captioned case to this Court to determine whether Defendant Sean Lavarco ("Lavarco") should be re-sentenced in light of United States v. Booker, ___ U.S. ___; 125 S. Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). This Court has considered all materials submitted by Lavarco through his counsel and the Government, as well as the record, and declines to impose a different sentence.


  On December 23, 2002, pursuant to a cooperation agreement, Lavarco pled guilty to conspiracy to defraud the United States in violation of 18 U.S.C. § 371, bank fraud in violation of 18 U.S.C. § 1344, and fraud with identification documents in violation of 18 U.S.C. § 1028, all in connection with a scam where he claimed that he could, for a fee, assist on illegal alteration of credit reports so as to erase any indication of a bad credit history. On June 3, 2003, a status conference was held in which the Government informed the Court that it had terminated Lavarco's cooperation based upon the fact that the Defendant had repeatedly violated the terms of his bail by traveling outside New York and the United States without first notifying the Pretrial Services Agency or the FBI as he was required to do. (June 3, 2003 Tr. at 7-9.) At his initial sentencing hearing on January 8, 2004, Lavarco requested a short recess to retrieve some documents from his car. (Sent. Tr. Jan. 8, 2004, at 23-24.) This Court granted a fifteen-minute recess, Lavarco left and never returned. (Sent. Tr. Jan. 8, 2004, at 24, 29.) I issued a bench warrant pursuant to 18 U.S.C. § 3146, and the federal marshals tracked down Lavarco several months later in a local hotel room. (Sent. Tr. Apr. 1, 2004, at 3.) As a fugitive, and before he was located, Lavarco contacted and taunted the United States Marshals and FBI Special Agents who had been assigned to track him down. He also changed his appearance and used false identification to evade the authorities.

  At a subsequent hearing on April 1, 2004, I sentenced Lavarco to 40 months in prison followed by three years supervised release, restitution in the amount of $8,503.00, and a special assessment of $300.00. (Dckt. 24.) The Pre-sentence Investigation Report ("PSR"), which was prepared before Lavarco fled the first sentence proceeding, recommended a sentence range under the United States Sentencing Guidelines ("Guidelines") between 21 to 27 months, based on a total offense level of 14 and a Criminal History Category of III. (PSR ¶ 103.) I denied the adjustment for acceptance of responsibility, which would have applied had he not fled, and also added a two-point enhancement for obstruction of justice. (Sent. Tr. Apr. 1, 2004, at 15.) I also noted at the time that Lavarco may have begun to cooperate with the Government, but from the PSR it looked as if he were committing crimes at the same time and that too dissuaded the Government from making a § 5K1.1 motion on his behalf. (Id. at 14.)

  Lavarco's recalculated offense level of 19 put him in the range of 37 to 46 months in prison and I sentenced him to 40 months. Lavarco appealed the sentence, and on May 9, 2005, the Second Circuit remanded this case so that I may consider whether to re-sentence Lavarco in light of the changes to the Sentencing Reform Act, Pub.L. 98-473, Title II, §§ 211-238, 98 Stat. 1987 (1984), United States v. Booker, ___ U.S. ___; 125 S. Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). II. DISCUSSION

  Lavarco fails to articulate sufficient support as to why he should be re-sentenced. The standard here is whether a "nontrivially different sentence would have been imposed" had the Court considered the defendant's sentence "under the post-Booker/Fanfan regime." Crosby, 397 F.3d at 111-13, 117; see id. at 118. This standard is articulated with specificity in United States v. Crosby, 397 F.3d 103, 111-14 (2d Cir. 2005), and instructs sentencing judges that they should consider the Guidelines in addition to the factors present in 18 U.S.C. § 3553(a) when imposing sentences.

  There were no prejudicial errors in calculating Lavarco's sentence. Lavarco received the two-point enhancement for obstruction of justice, and was also denied adjustment for acceptance of responsibility because of his brazen flight from both the law and the Court during his original sentencing hearing. United States v. Loeb, 45 F.3d 719, 722 (2d Cir. 1995) (stating that "intentional flights from judicial proceedings" supports both obstruction of justice enhancement and denial of acceptance of responsibility adjustment). Lavarco's only justification for leniency in sentencing was his cooperation with the government and problems at home. (Sent. Tr. 4/1/04 at 12-13.) At that time I considered the arguments raised by Lavarco and juxtaposed them with his extensive criminal history and his continued criminal activities while cooperating with the government. (Sent. Tr. 4/1/04 at 13-15.) Accordingly, I sentenced him to forty months in prison — near the midpoint of the applicable range of the Guidelines. At no point was I constrained to give a sentence under Guidelines that was unreasonable under the circumstances. See United States v. Vega-Martinez, 2005 U.S. App. LEXIS 21705, at *8 (1st Cir. 2005) ("defendant must demonstrate a reasonable probability that the court would have imposed a more favorable sentence if it had not erroneously considered itself constrained by the [sentencing] guidelines. . . .").

  Upon remand, Lavarco was solicited but failed to offer any new reasons for a different sentence except that he should be re-sentenced because of his dramatic rehabilitation since his incarceration. But this is not a factor to be taken into consideration for purposes of a determination as to whether to re-sentence. The decision whether to re-sentence a defendant must be based "solely on the circumstances that existed at the time of the original sentence. . . ." Crosby, 397 F.3d at 117 n. 19. Only after the determination is made to re-sentence is it appropriate to consider events subsequent to the original sentence. United States v. Murray, 2005 U.S. Dist. LEXIS 9649, at *12-13 (S.D.N.Y. May 23, 2005) (Baer, J.).

  Lavarco also claims to have provided substantial assistance to the Government, but, not surprisingly, the Government does not share this view. Lavarco repeatedly violated the terms of his plea agreement and continued his criminal activity so he was never deserving of a 5K1.1 motion from the Government. In any event, it seems that the information he provided was not fruitful in producing any arrests or convictions, so there can be no argument that despite violating the cooperation agreement, the information Lavarco provided was of any significance to the Government.

  Finally, Lavarco argues that the factors provided in 18 U.S.C. § 3553(a) would lead this Court to a different sentence result and because Crosby instructs sentencing courts to consider those factors, he should receive a non-guidelines sentence. But § 3553(a) only serves to reaffirm the appropriateness of Lavarco's sentence. It provides, inter alia, that the sentence imposed should "promote respect for the law," "afford adequate deterrence to criminal conduct," and "protect the public from further crimes of the defendant." Lavarco's extensive criminal history, continued criminal activities during his cooperation with the government, and his flight during sentencing, exemplify a need for an appropriate punishment that will instill in Lavarco a respect for the law, specifically deter him from future criminal conduct, and protect the public from further crimes.


  For the foregoing reasons, this Court declines to impose a different sentence. The Clerk of the Court is instructed to close this ...

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