United States District Court, S.D. New York
November 10, 2005.
UNITED STATES OF AMERICA, Plaintiff,
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.
OPINION & ORDER
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
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
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 case and to remove it from my docket.
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