United States v. Desnoyers, 2013 U.S. App. LEXIS 3187

Desnoyers was convicted of multiple asbestos-related offenses, including Count I conspiracy, later dismissed then reinstated on appeal, resulting in remand for re-sentencing.
At initial sentencing (2009) the court used a $34,960 loss figure under USSG §2B1.1 and imposed five years’ probation with that restitution.
On remand (2011) after reinstating Count I, the district court increased restitution to $45,398 but kept the five-year probation sentence.
New materials were submitted by the government before re-sentencing (loss estimates, Page clean-up bid, and affidavits) but some were not considered; the court refused some evidence due to Archer limitations.
The district court recalculated loss totals (Count I, Counts V and VI) and, applying most but not all guidelines enhancements, again imposed five years’ probation; resti tution and organizational-enhancement decisions became central to subsequent challenges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the loss calculation on remand was proper	Desnoyers argues Page loss and new Counts V/Vl losses should be included	United States contends loss estimates were properly limited by Archer and district court discretion	Loss must include Page estimate; remand to recompute Count I loss; discretion governs Counts V/Vl losses
Whether the organizer enhancement should be applied on remand	Desnoyers contends the enhancement should be reconsidered with Count I reinstated	County court should not apply enhancement without reevaluating the reinstated facts	Remand to reconsider organizer enhancement in light of Count I reinstatement
Whether newly discovered character evidence could be considered on remand	Desnoyers argues new Parker/Garrow affidavits should be considered	Archer precludes new evidence not previously submitted absent justification	District court properly limited consideration; affirmed exclusion of new evidence
Whether restitution was properly calculated and whether pre-abatement/during costs must be included	Desnoyers argues pre-abatement costs and during costs are recoverable; joint/several liability must be explained	MVRA requires full restitution; district court rejected some pre-abatement/during costs	Remand to include pre-abatement and during costs; require full, explained Count I restitution; joint/several liability explained

United States v. Archer, 671 F.3d 149 (2d Cir. 2011) ( governs consideration of evidence not submitted at original sentencing)
Gall v. United States, 552 U.S. 38 (S. Ct. 2007) (procedural requirements for sentencing; deference to §3553(a))
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (review of sentencing for procedural errors and totality of factors)
United States v. Rigas, 583 F.3d 108 (2d Cir. 2009) (mandate and de novo sentencing considerations after reversal; not automatic re-sentence when parts of conviction are modified)
United States v. Paul, 634 F.3d 668 (2d Cir. 2011) (restitution scope for schemes where multiple components contribute to losses)