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United States v. Friedberg

March 2, 2009



Appeal from a judgment of the United States District Court for the Eastern District of New York (Townes, J.), convicting defendant, after a guilty plea, of five counts of tax evasion. We hold that the district court properly considered defendant's uncharged embezzlement when it applied an abuse of trust enhancement at sentencing.


The opinion of the court was delivered by: Preska, District Judge

Argued: February 3, 2009

Before: POOLER and KATZMANN, Circuit Judges, PRESKA, District Judge.*fn1

Daniel Friedberg pleaded guilty to five counts of tax evasion in violation of 26 U.S.C. § 7201. When calculating the applicable advisory Sentencing Guidelines range, the district court included a two-point increase in offense level for abuse of a position of trust, pursuant to U.S.S.G. § 3B1.3, and sentenced Friedberg to twenty-six months' incarceration. On appeal, Friedberg challenges the abuse of trust enhancement and argues that his sentence was substantively unreasonable. We conclude that the district court's sentencing determination was proper. Accordingly, we affirm.


Friedberg was Grand Secretary for the Independent Order of Odd Fellows ("Odd Fellows") from 1986 to 2004. Between 2000 and 2004, he embezzled $562,000 of the organization's funds. He paid personal bills, made mortgage payments for himself and a friend, and purchased health insurance for non-employees with his ill- gotten gains. Friedberg also wrote organizational checks payable to either cash or himself and deposited these funds (totaling $298,436) as savings. He did not, however, report any of the embezzled funds as income.

The government ultimately charged Friedberg with five counts of tax evasion, to which he pleaded guilty on January 23, 2008. The United States Probation Office subsequently prepared a Presentence Investigation Report ("PSR") for Friedberg. In the PSR, the Probation Office calculated the base offense level at sixteen based on a tax loss of more than $80,000. See U.S.S.G. § 2T4.1(F). It then added a two-level enhancement for failing to report more than $10,000 of income in a given year pursuant to U.S.S.G. § 2T1.1(b)(1) and a two-level enhancement for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. Finally, the Probation Office deducted three points for Friedberg's acceptance of responsibility under U.S.S.G. § 3E1.1, yielding a total offense level of seventeen. For this offense level, combined with a criminal history category of I, the Sentencing Guidelines recommend a range of imprisonment of 24 to 30 months. See U.S.S.G. Ch. 5, Pt. A.

Over defense counsel's objection, the district court accepted the PSR's application of the abuse of trust enhancement in calculating the offense level. The court then sentenced Friedberg to a term of imprisonment of twenty-six months. Friedberg now appeals his sentence.


We review a challenged sentence for "reasonableness." United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008)(internal quotation marks omitted). This inquiry has both procedural and substantive components. Id. Under the procedural component, we determine whether the district court relied on erroneous factual findings, correctly calculated the applicable Guidelines range, treated the Guidelines as advisory, and considered the factors listed in 18 U.S.C. § 3553(a). See United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008)(en banc). The substantive component focuses on whether, under the totality of the circumstances, the sentence is "'within the range of permissible decisions.'" Id. at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). We assess both procedural and substantive reasonableness under an abuse of discretion standard. Id. at 188. This standard contemplates de novo review of legal questions and clear-error review of the district court's factual determinations. United States v. Salim, 549 F.3d 67, 72 (2d Cir. 2008).

On appeal, Friedberg challenges his sentence as both procedurally and substantively unreasonable. With respect to the former, he argues the district court's application of the abuse of trust enhancement was legal error. As to the latter, he argues that his age and personal ...

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