915 F.3d 916
2d Cir.2019Background
- Scott Valente, former broker, pleaded guilty to securities fraud, mail fraud, and obstruction of the tax laws; originally sentenced Nov. 20, 2015 to concurrent terms (240/240/36 months) and restitution of $8,200,579.69.
- This Court previously remanded for reconsideration of certain criminal history points; district court reapplied the points on July 20, 2017, resentenced to the same terms, and increased restitution to $8,616,113.39.
- Valente’s prior record included multiple DWAI-related convictions and a misdemeanor for operating without an ignition interlock device; one prior DWAI judgment imposed a 60-day term that Valente had not actually served.
- The government discovered a loss-calculation error after appeal and sought to increase the restitution award on remand to reflect victims’ full losses under the MVRA.
- The Second Circuit vacated part of the incarceration sentence and remanded for resentencing because the district court misapplied the Guidelines in counting criminal history points, but affirmed the amended restitution order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interlock-device misdemeanor counts as a more serious unlisted misdemeanor under U.S.S.G. §4A1.2(c) | Government: the interlock conviction, given surrounding conduct, is categorically more serious and supports a criminal-history point | Valente: the court should have weighed other Application Note 12(A) factors and found it not more serious | Court: district court permissibly focused on factors showing increased culpability and likelihood of recurrence; point allowed |
| Whether 60-day recidivist DWAI sentence counts for two points under U.S.S.G. §4A1.1(b) | Government: imposed 60-day sentence qualifies even if not yet served; any error was harmless | Valente: Application Note requires that the defendant actually served imprisonment; he had not | Court: held Application Note plain; because Valente had not actually served the 60 days, two-point enhancement was erroneous; only one point allowed |
| Effect of criminal-history error on Guidelines range and sentence | Government: even without one point, Valente would remain in CHC IV (harmless) | Valente: correct point total places him in CHC III, lowering Guidelines range | Court: error was not harmless; corrected total yields CHC III and lower Guidelines range (remanded for resentencing) |
| Whether district court could amend restitution on limited remand | Government: amendment corrects clear loss-calculation error; MVRA mandates full restitution | Valente: district court lacked authority to increase restitution on limited resentencing | Court: amendment permissible because correcting clear error and MVRA required full restitution; amended restitution affirmed |
Key Cases Cited
- United States v. Morales, 239 F.3d 113 (2d Cir.) (application-note multifactor, common-sense comparison for unlisted misdemeanors)
- United States v. DeJesus-Concepcion, 607 F.3d 303 (2d Cir.) (deference when inquiry focuses on particular conduct)
- Corley v. United States, 556 U.S. 303 (interpretive canon against rendering statutory text superfluous)
- United States v. Johnson, 378 F.3d 230 (2d Cir.) (permitting restitution to be imposed or corrected on resentencing where clear legal error existed)
- Rita v. United States, 551 U.S. 338 (Guidelines are the starting point for sentencing)
- Peugh v. United States, 569 U.S. 530 (error in Guidelines calculation ordinarily requires remand)
- United States v. Dupes, 513 F.3d 338 (2d Cir.) (MVRA makes full restitution mandatory for certain crimes)