United States v. Kats (Marmilev)
679 F. App'x 77
| 2d Cir. | 2017Background
- Mark Marmilev pleaded guilty to conspiring to operate an unlicensed money-transmitting business and was sentenced to 60 months imprisonment, 3 years supervised release, and a $250,000 fine.
- The Sentencing Guidelines fine range was $17,500–$175,000; the District Court imposed $250,000 (above Guidelines).
- The presentence report (PSR) recommended against a fine, concluding Marmilev was unable to pay.
- The government did not seek a fine at sentencing and appeared to accept the PSR’s inability-to-pay conclusion.
- Marmilev did not present evidence of inability to pay to the District Court prior to imposition of the fine.
- On appeal, Marmilev argued the court erred by imposing an above-Guidelines fine without notice, without an opportunity to present evidence of inability to pay, without findings on ability to pay, and without explaining the departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the District Court erred by imposing an above-Guidelines fine without giving advance notice | Marmilev: court failed to give notice it might impose an above-Guidelines fine | Government: no notice required; Marmilev had opportunity to proffer inability-to-pay evidence | Court: plain error; vacated fine because defendant had no reasonable opportunity to contest ability to pay given PSR and parties’ positions |
| Whether Marmilev was afforded an opportunity to present evidence of inability to pay | Marmilev: no reasonable opportunity to present evidence because PSR had already found inability to pay and parties treated it as settled | Government: Marmilev had chance to present evidence and chose not to | Court: defendant reasonably relied on PSR and government acceptance; lacked practical opportunity; remand for evidentiary showing allowed |
| Whether the District Court made required findings on ability to pay | Marmilev: court made no findings on ability to pay | Government: (implicit) findings unnecessary because defendant failed to present evidence | Court: remand required so court can make findings on ability to pay if it again imposes a fine |
| Whether the District Court explained its deviation from Guidelines | Marmilev: court gave no explanation for above-Guidelines fine | Government: conceded court failed to state reasons and consented to vacatur | Court: vacated fine and remanded for explanation per 18 U.S.C. § 3553(c) |
Key Cases Cited
- United States v. Aldeen, 792 F.3d 247 (2d Cir. 2015) (district court must state reasons for sentences that deviate from Guidelines)
- United States v. Elfgeeh, 515 F.3d 100 (2d Cir. 2008) (defendant entitled to opportunity to be heard on inability to pay before fine imposed)
- United States v. Banks, 464 F.3d 184 (2d Cir. 2006) (plain-error standard articulated)
- United States v. Corace, 146 F.3d 51 (2d Cir. 1998) (remand required where PSR indicated inability to pay but court imposed a fine without explanation)