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United States v. Weisberg

August 27, 2008


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court is defendant's motion (Docket No. 111*fn1 ) for reconsideration of the Order (Docket No. 110, Order of July 23, 2008, filed July 31, 2008) denying either a downward departure from the Sentencing Guidelines or a non-Guidelines sentence. Familiarity with that Order (Docket No. 111) as well as an earlier Order regarding sentencing (Docket No. 95) is presumed.

The Government's response (Docket No. 114) was due on August 20, 2008 (Docket No. 113). Sentencing was adjourned to August 27, 2008, following resolution of this motion.


Defendant was convicted of three (of four charged) counts of failure to file tax returns starting in 2000. Following consideration of objections to the drafted Presentence Investigation Report (Docket No. 91; see Docket No. 95), the revised Presentence Investigation Report recommended a sentence of imprisonment for a range of 21 to 27 months to run consecutively and concluded, under the Sentencing Guidelines, that defendant was ineligible for probation (see Docket No. 111, Order at 2-3). Defendant moved for a downward departure or a non-Guidelines sentence, in order to be incarcerated in a halfway house for the duration of his sentence (Docket No. 98). The Order of July 23, 2008, denied defendant's motion (Docket No. 111).

In moving for reconsideration, defendant argues that the Court erred in not recognizing the full scope of its discretion in sentencing and in either downwardly departing from the Sentencing Guidelines or imposing a non-Guidelines sentence. He contends that extraordinary circumstances need not be presented for the Court to depart from a Guidelines sentence and that the Court, in expressing its reasons for a departure, need not expressly disagree with the policies underlying the Guideline sentence. (Docket No. 112, Def. Memo. at 2.) Defendant seeks this reconsideration so this Court could impose a non-Guidelines sentence and allow for probation and placement in a halfway house to serve his sentence (id. at 2). Defendant adds further information about the ongoing care needs of his daughter and steps he has taken with the licensing authorities in New York surrounding his license following this conviction (id. at 2, 13-17, 17-18; Docket No. 111, Def. Atty. Affirm. ¶ 16, Ex. A). Defendant disputes that he would "automatically" lose his chiropractic license due to this conviction (id. at 17-18)*fn2 .

The Government responds that this reconsideration is merely "'another bite at the apple' by attempting to relitigate issues exhaustively briefed and argued by the parties, and already decided by the Court" (Docket No. 114, Gov't Response at 1). As a reconsideration, the Government argues that the standard of review is equivalent to reconsideration under Federal Rule of Civil Procedure 59 (id. at 2-4), with reconsideration not "a vehicle 'for a party dissatisfied with a court's ruling to advance new theories that the movant failed to advance in connection with the underlying motion,[]or to secure a rehearing on the merits with regard to issues already decided'" (id. at 3, quoting United States v. Demosthene, 476 F. Supp. 2d 531, 534 (S.D.N.Y. 2004)). Parsing this Court's earlier Order, the Government contends that this Court exercised its discretion in denying defendant's motion and considered the sentencing factors under 18 U.S.C. § 3553(a) in adopting the Guidelines range (id. at 4-7). The Government emphasizes that a departure from the Guidelines sought by defendant would require this Court to render some explanation, to allow an appellate court reviewing the sentence to determine whether such a departure was reasonable (id. at 7-11).

As for the merits of defendant's reconsideration motion, the Government responds that defendant has not introduced newly discovered evidence as to his daughter's condition to warrant reevaluation of the Court's position (id. at 11-16).

In reply, defendant argues that the parties agree upon certain points (Docket No. 115, Def. Reply Memo. ¶¶ 1, 2, 3). He repeats that a requirement that this Court express a specific disagreement with the Guidelines creates an impermissible presumption in favor of the Guidelines sentence (id. ¶ 4). Defendant argues that the Court may consider additional materials he raises in this reconsideration motion in order to correct clear error or to prevent manifest injustice (id. ¶ 5). He concludes that any question of the reliability of the additional factual information concerning his daughter is up to the Court to assess or may be examined in a fact finding hearing (id. ¶ 6).


Defendant requests that this Court reconsider the denial of his motion for a downward departure or imposition of a non-Guidelines sentence upon him. One alternative sentence he suggests, incarceration in a halfway house, would require that the Court order either a downward departure or impose a non-Guidelines sentence to impose a term of probation, since a sentence to a halfway house could only be imposed if the sentencing range allows for probation and defendant's Guideline sentence is in Zone D and would require a sentence of imprisonment (see Docket No. 111, Def. Atty. Affirm. Ex. C, memo. from Probation Department).

I. Reconsideration Standard

In order to prevail on this motion to reconsider, defendant must demonstrate that there was an intervening change in the law, newly discovered evidence, or clear error of law or fact that must be reconsidered to avoid manifest injustice, see Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers and Lybrand, 322 F.3d 147, 167 (2d ...

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