United States v. Brizard
696 F. App'x 544
| 2d Cir. | 2017Background
- Marvin Brizard was convicted by jury of conspiracy to file fraudulent tax returns, filing fraudulent tax returns, wire fraud, and aggravated identity theft.
- District Court sentenced Brizard to 84 months’ imprisonment, a downward variance from a Guidelines range of 94–111 months, and imposed forfeiture, restitution, and supervised release.
- On appeal, Brizard for the first time argued the sentence was procedurally and substantively unreasonable and raised several procedural objections.
- At sentencing the court discussed Brizard’s extended six-year scheme, victim targeting, and Brizard’s refusal to accept responsibility.
- Defense counsel acknowledged on the record that he had reviewed the presentence report with Brizard.
- The District Court’s restitution judgment did not expressly state Brizard’s liability was joint and several with his codefendant, though the codefendant’s judgment did so with respect to Brizard.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Brizard) | Held |
|---|---|---|---|
| Failure to consider §3553(a) factors | Court considered offense conduct and need for appropriate sentence | Court failed to consider factors beyond criminal conduct | No plain error; record shows court considered personal circumstances and accountability |
| Failure to state reasons under §3553(c) | Brief reasons suffice given parties' straightforward arguments | Sentence lacked adequate explanation | No plain error; court gave an adequate on-the-record explanation |
| Rule 32(i)(1)(A) compliance (PSR review) | Counsel’s on-the-record acknowledgment suffices | Court failed to ensure defendant personally read/understood PSR | No plain error; counsel’s unobjected acknowledgement met the requirement |
| Restitution joint-and-several designation | Government expects restitution to be adjusted if others pay | Judgment omitted expressly labeling liability joint and several | Not plain error; failure to mark joint-and-several does not permit double recovery and can be adjusted if co-defendant pays |
| Substantive reasonableness of sentence | Sentence justified by conduct, duration, and lack of remorse | Sentence was driven by loss amount and was unreasonable | No abuse of discretion assumed; sentence upheld because court relied on conduct and other factors |
Key Cases Cited
- Wagner-Dano v. United States, 679 F.3d 83 (2d Cir.) (plain-error review for unpreserved sentencing claims)
- Cavera v. United States, 550 F.3d 180 (2d Cir.) (en banc) (brief statement of reasons generally suffices where arguments are straightforward)
- Algahaim v. United States, 842 F.3d 796 (2d Cir.) (vacatur where sentence was driven by loss amount)
- Nucci v. United States, 364 F.3d 419 (2d Cir.) (victims may not recover more than owed; restitution must be reduced if others pay)
- Thavaraja v. United States, 740 F.3d 253 (2d Cir.) (appellate standard: abuse-of-discretion for substantive-sentencing review)