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United States v. Weisberg

May 15, 2009


The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court



Following his conviction on three counts of failing to file an income tax return in violation of 26 U.S.C. § 7203, the defendant, John Weisberg, was sentenced by Magistrate Judge Hugh B. Scott*fn1 to a term of 21 months' imprisonment, followed by one year of supervised release. The defendant timely appealed his sentence to this Court. On appeal, the defendant argues that the Magistrate Judge committed various procedural errors during sentencing. Specifically, he claims that the Magistrate Judge failed to appreciate the extent of his discretion to impose a non-Guidelines sentence and that he erroneously applied a presumption of reasonableness to the advisory Guidelines range. For the reasons stated, the Court remands the matter for resentencing.


Because the defendant challenges only his sentence on appeal, and not his conviction, the Court will address only those facts relevant to the sentencing proceeding.

An initial presentence investigation report ("PSR") prepared by the United States Probation Office recommended that the defendant's adjusted offense level was 18, his criminal history was 1, and his advisory Guidelines range was 27 to 33 months. The defendant objected to the PSR and on June 2, 2008, Magistrate Judge Scott filed an order resolving those objections. The Magistrate Judge determined that the defendant's adjusted offense level was 16, his criminal history category was 1, and his advisory Guidelines range was 21 to 27 months. In that same order, Magistrate Judge Scott determined that, because the maximum sentence for each of the defendant's three convictions was 12 months, pursuant to U.S.S.G. § 5G1.2(d), consecutive sentences would be imposed to the extent necessary to achieve the advisory Guidelines range of 21 to 27 months.

The defendant then moved for a downward departure, or alternatively, for a non-Guidelines sentence pursuant to United States v. Booker, 543 U.S. 220 (2005). As grounds for his motion the defendant cited: (1) his extraordinary family circumstances which involve caring for his special needs daughter; (2) his ongoing obligations to his active chiropractic patients; and (3) the impact of the defendant's sentence on his three employees. The government opposed the defendant's motion and urged the Court to sentence the defendant within the advisory Guidelines range.

On July 23, 2008, Magistrate Judge Scott issued an order denying the defendant's motion for a downward departure or for a non-Guidelines sentence. Citing the Second Circuit's decision in United States v. Cutler, 520 F.3d 136, 155-56 (2d Cir. 2008), the Magistrate Judge determined that

The Court, under [Cutler], would have to express its disagreement with the policy decision underlying the Guidelines in imposing either a downward departure or a non-Guidelines sentence.

See Dkt. 110, at 6, see also id. at 11 (citing Cutler for the proposition that "even a departure in the advisory Sentencing Guideline era requires a stated disagreement with the policies for the Guidelines sentence.")

Based upon that understanding of his authority, the Magistrate Judge found that, although the situation involving the defendant's disabled daughter was "tragic," a departure was unwarranted because "[t]he Court does not object to the policy underlying defendant's Guidelines sentence," id. at 11, and "[t]he factors the defendant suggests should warrant either a downward departure or imposition of a non-Guidelines sentence, collectively are not so extraordinary as to justify a departure." Id. at 12. Accordingly, the Magistrate Judge denied the defendant's motion for either a downward departure or a non-Guidelines sentence and found that consideration of the statutory factors under 18 U.S.C. § 3553(a) "indicate that the defendant should be incarcerated within the Guideline range." Id. at 13. In that same decision, Magistrate Judge Scott determined that he would not impose a sentence at the high end of the advisory Guidelines range, as requested by the government.

The defendant then moved for reconsideration of Magistrate Judge Scott's decision to impose a within-the-guidelines sentence. The government opposed the motion, and on August 27, 2008, the Magistrate Judge issued an order denying reconsideration. See Dkt. 116. In his order, Magistrate Judge Scott again reiterated his understanding that:

While the Court has the discretion to impose a non-Guideline sentence if a case falls outside the 'heartland' of cases the Sentencing Commission uses in establishing the policies for the range of sentences, or if the Guidelines fail to reflect the Sentencing Reform Act considerations, or a different sentence is warranted altogether, see Rita, supra, 127 S.Ct. at 2465, exercise of this discretion is not compelled in the defendant's case. In Rita itself, the Supreme Court affirmed a sentence in which the district court declined to impose a non-Guidelines sentence and held that he Guideline range is presumptively reasonable.

Id. at 8. The Magistrate Judge also expressed concern that imposing a non-Guidelines sentence on the grounds cited by the defendant "would disintegrate the uniformity of sentences for similarly situated defendants because the focus of defendant's motion shifts from his criminal history and the offense of conviction to his personal situation. Sentencing on this basis under the Guidelines would render unique sentences for each defendant based upon his or her personal circumstances." Id. Ultimately, the Magistrate Judge concluded that ...

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