*1 аbility per- not concern her They did i.e., hear, activities, major life
form in a
speak, range or to work class or supra.
jobs as discussed
Moreover, the record indicates prob Santiago’s
that the comment about “adaptation” and her use of a hear
lem of until well
ing aid did not occur after she permanent
had been transferred to a above,
ground position. As discussed disability precede
claimed must at least immediately request related to the 4, supra.
accommodation. See note San
tiago complain cannot that she was treated Eagle having American a substan
tially limiting impairment having re after sought. ceived accommodation she sum, Santiago has not set forth suffi-
cient evidence of the existence of a disabili-
ty any prescribed by under of the criteria regulations.
the statute Because Eagle legal duty
American no to San- ADA,
tiago under the we need not consid-
er further issues raised
parties.
Affirmed. America,
UNITED STATES
Appellee, TENZER, L.
James Defendant-
Appellant.
Docket No. 99-1123 Appeals,
United States Court of
Second Circuit.
Argued: Oct. April
Decided: *2 Bachrach, York, (Depe- wardly depart. New NY For Marion the reasons set forth Bachrach, Counsel), below, for Defen- tris & we affirm conviction and re- dant-Appellant. mand for reconsideration sentence. Dunne, York, NY, New
Cynthia Keeffe
Attorney
Assistant
for the
Background
I.
*3
(Mary
of New
Southern District
York
Jo
A complete account of the
leading
events
White,
Attorney
for the
States
up
to Tenzer’s
was set forth in
York,
District of New
Peter
Southern
G.
I, and
opin-
Tenzer
the two district court
Neiman,
Feinberg,
Ira M.
Assistant Unit-
ions issued
ment of conviction entered 1999 in the United States District Court an experienced Tenzer is tax attorney for the Southern District of York New principals and one of the Margolin, Win- (Charles J.) Brieant, L. information (MW E), large er and Evens & a account- him with charging four misdemeanor Island, ing Long firm in New York. It is timely counts of failure to file tax returns uncontested that during years the four years for the 1987-1990 violation of 26 information, covered Tenzer earned § U.S.C. case comes before substantial income pay any but did not tax. this court for the second time. In the first In October the IRS notified Tenzer appeal, government sought reversal of that his account had been referred the district court’s order dismissing the enforcement section and that he could still information becаuse Tenzer’s offer com- avoid enforcement action if he filed all his promise, pursuant submitted to the volun- delinquent paid returns and all outstand- tary of the Internal Reve- days, taxes within 10 or if he immedi- (IRS), nue Service improperly been ately contacted the attorney, IRS. Tenzer’s reversed, turned holding down. We that Myron Weinberg, contacted the IRS and Tenzer’s require- offer did not meet the requested an extension of time for filing ments of that United States v. returns, which granted. In (2d Cir.l997)(“2’e?mr Tenzer, 127 F.3d February complete filed /”). remand, On Tenzer again sought dis- years accurate returns for three of the missal, allegedly based on new evidence (1987-1989), involved but did not enclose produced by government, but the dis- any payments. trict court held that the “mandate rule” precluded 4 F.Supp.2d it. In began October negotiat- (S.D.N.Y.1998). Following ing payment plan a conditional with offi- IRS revenue guilty plea, Judge Brieant time, sentenced Ten- cer Kishlansky. Elizabeth At that year day incarceration, zer to a and a Weinberg but Kishlansky advised that Tenzer declined to downward. Tenzer now wanted to enter into an agree- installment appeals from his conviction and sentence. ment with the Kishlansky IRS. notified (1) argues the new Weinberg evidence that the IRS would not consider produced by on remand plan installment unless Tenzer imme- merits the reconsideration of our diately delinquent decision filed his 1990 and 1991 (2) /; in Tenzer Judge Brieant did not returns. Tenzer filed those returns in No- fully authority understand his down- vember 1992. value of Tenzer’s non- met of the “forced sale” 1993, Kishlansky again January month, Later that Kishlan- liquid assets. including Ernest lawyers, Tenzer’s that Tenzer’s file sky notified Honecker attor-
Honecker, formerly high-ranking being transferred to the IRS office IRS, pay- was to discuss Tenzer’s ney for the region where Brooklyn, which covered meeting, Tenzer’s law- At that plan. ment assets were located. Kishlansky most of Tenzer’s from assurances sought yers Honecker not to Kishlansky advisеd handled as a also being case that Tenzer’s until he was contacted in- resubmit the offer attorneys also matter. civil point, At this all communi- office. rather than enter Kishlansky that formed IRS, re- cation Tenzer and the IRS between plan installment into an of his taxes ceased. civil collection garding would be delinquent payments whereby all make an “offer made, intended to *4 Proceedings B. The Criminal is, partial payment a compromise,” Kish- of his tax liabilities. 1993, placed settlement In a “freeze” was late June such an offer would lansky responded halting any file further collec- on Tenzer’s cur- if Tenzer became only by be considered ordered The freeze was tion efforts. 1992, and if the division, for his taxes due rent on as investigation criminal IRS his and reasonably reflected assets investigation into separate offer of a a result lawyers then JRD, earnings. potential by corporate tax a criminal evasion $250,000 his comрromise proposed firm.1 It was accounting client of Tenzer’s indicated that she Kishlansky liability. weeks later that Tenzer’s not until several would be unsatisfacto- thought this amount freeze and that attorneys learned of the would more reasonable offer ry and that a subject now of an crimi- Tenzer was a IRS Nevertheless, $600,000. when be around freeze on investigation. nal The collection $250,000 in a his offer submitted February until Tenzer’s file was lifted 5, 1993, February along with 1999, 25, letter dated sen- shortly after Tenzer was reject Kishlansky did not payment, by the district court.2 $5000 tenced it to the IRS service forwarded but 1994, between In consultation November in Maine for review. center and tax division of agents of the IRS returned the IRS led to a recom- early April Department In of Justice letter, as compromise prosecuted Tenzer’s offer that Tenzer mendation “unprocessa- tax returns. timely as to file his payment, as the his failure well $5000 the IRS’s the offer ex- reflected rеturning letter The recommendation ble.” The not meet the inability that Tenzer did “for offers based conclusion plained that disclosure offer an amount criteria of you generally must pay, to a delin- provides That that where policy amount shown or in excess of the equal to either comes forward and quent taxpayer your financial state- in assets’ on ‘equity arrangement to ment(s).” makes a bona fide pays also invited The letter taxes, will not 14, 1993, the IRS pay applicable April amend his offer. On result of As a prosecution. recommend to the dis- wrote a letter IRS Honecker prosecut- seldom non-filers are policy, the same to resubmit closing his intention Nevertheless, in November ed. explaining compromise, offer in in the charged Tenzer Department $250,000 light amount in Justice was a reasonable wrongdo- charged with investiga- was never subject of an IRS 1. JRD became involving ing JRD. July with that 1991. In connection tion in E with a investigаtion, MW & was served jury subpoena. after substan- that the grand lifting the freeze indicates 2. The letter negotiate offer discovery willing in the JRD Tenzer's was collected is now tial IRS may that offer was suspected compromise. Importantly, government $450,000 a letter by Honecker JRD’s tax fraud amended have aided and abetted January 1999. dated investigation to include him. expanded its ap- promise date, information that led to this pay specific four-count on a or an peal. lump-sum payment offer of a in compro- mise.” Id. at 227. We also concluded Subsequently, Tenzer moved to dismiss express “under the language policy, argued the information. Tenzer that he arrangement’ the ‘bona fide must have requirements had satisfied the of the vol- been ‘made’ for apply.” Id. untary policy, and that initi- Because Tenzer’s offer had not been ac- him, proceedings against criminal ating cepted at the IRS time he became pоlicy, thereby failed to follow its own IRS subject investigation, of a criminal his violating process due rights. Follow- prosecution was not barred. Although we four-day evidentiary hearing, the dis- remarked government that the nego- must agreed trict court and dismissed the infor- tiate in good goal faith toward the although mation. The court reasoned that achieving taxpayer, settlement with the in compromise Tenzer’s initial offer found that this case the “laughable,” he had in good intended faith provided Tenzer with oppor- sufficient acceptable compromise agree- reach tunity offer, to make an acceptable ment with the and thus complied that he had not made such an offer. We program. “having concluded that F.Supp. thoroughly failed to further *5 bring himself within policy, concluded that which was the letter of the vol- wide- ly untary publicized, process policy, afforded Tenzer due Tenzer cannot rights, and that now claim rights any protection those were violated the benefits of decided, Thus, when the without af- affords.” Id. at 228.3 we reversed fording notice, Tenzer advance district court’s dismissal of the infor- freeze the civil collection effort and to mation and remanded to the district court. prosecute him. Id. at 563. The district court also noted that Tenzer’s D. Proceedings on Remand. “unique regular day day
was remand, [voluntary administration of the court on disclosure] Policy.” government produced piece Id. a new of evi- dence prompted Tenzer to renew his I
C. Tenzer
motion to
dismiss
information. The
evidence,
new
a one-page
computer-print-
In September
we reversed the dis-
out from
processing
the IRS
information,
center in
missal of the
holding that
Maine, shows that defendant’s offer in
prosecution was not barred because Ten-
compromise was “pending,”
opposed
as
comply
zer did not
voluntary dis-
“rejected.”
printout
a
closure
127
included
nota-
F.3d
226. Because
tion
one IRS official to
we held that Tenzer
another demon-
comply
did not
strating,
policy,
argues,
unnecessary
we found it
that the IRS ex-
to de-
pected
cide whether the
resubmission of his
policy afforded Tenzer
offer.4 On this
basis,
any due process rights
argued
whether those
the district court
rights were
violated
Id. at 222
IRS.
IRS’s return
first
Tenzer’s
panel
n. 1. The
held that an
offer as
“arrangement
“unprocessable” is different from a
to pay”
under the
pol-
“rejected.”
return of the offer as
Since
icy “may
great variety
a
things, e.g.,
this distinction was not made clear on the
payment agreement,
installation
previous
went,
a
appeal, Tenzer’s argument
petition
3. We
rehearing
(see
denied Tenzer's
for
4. The
"terry
notation reads:
ruth when
Supreme
November 1997. The
Court denied
tp
taxpayer]).”
this comes back from
[i.e.
petition
Tenzer’s
for a writ of certiorari
States,
April 1998.
v. United
523 U.S.
118 S.Ct.
has A. of Tenzer Reconsideration The commission of a way. an indirect not extend to correct- judge does claim We turn first to Tenzer’s Appeals, of the Court of ing the decisions *6 supports new evidence reconsidera that on such decisions placing gloss or to in I of our decision Tenzer under tion practical alter the outcome.” which would of the case doctrine. excеption to the law Id. principal prongs. has two That doctrine Thereafter, entered a conditional Tenzer one, usually must appeals a court of Under infor- all counts of the guilty plea to four at an earlier adhere “to its own decision 11(a)(2), pursuant mation to Fed.R.Crim.P. York litigation.” Doe v. New stage of the right appeal reserving his 782, Soc. Servs., 789 Dep’t 709 F.2d City of his motion to dismiss court’s denial Cir.1983) (2d v. (quoting United States plea agree- appeal his sentence. Cir.1977)). (2d Cirami, 26, F.2d 33 n. 6 563 net offense level at set forth Tenzer’s ment that “we will not We have stated I. history category as and his criminal 13 ‘cogent’ or policy absent from this sound major grounds ‘compelling’ for a reasons. Tenzer moved sentencing, At an interven reconsideration are grounds justifying departure on various law, controlling the availabil ing change of case out of the that he claimed took this evidence, correct ity or the need to sentencing guidelines. of new of the heartland injus prevent manifest concerned a clear error of these The most contentious (internal cita Doe, at 709 F.2d 789 prosecution that his was tice.” Tenzer’s claim omitted); also see quotations tions and process of his due unfair and violation Fernandez, F.2d v. 506 pub- States prior with his two United rights. Consistent (2d Cir.1974). Nonetheless, “this Brieant 1203 Judge in this opinions lished doctrine, while informs “I branch of the sentencing proceeding, at the stated discretion, not limit the tribu does here is court’s that the entire believe Uccio, 940 v. power.” United States public nal’s essentially unfair and violation (citation (2d Cir.1991) F.2d by the Internal Revenue policies adopted ” omitted). ultimately refusing quotations to de- Service.... able,” prong prior of the “law of was not material to our hold- The other doctrine, commonly arrangement pay referred to had not ing that an the case” rule,” made, duty describes the therefore could not as the “mandatе been court on remand. “When an enjoy protection of the district of the dis- issue, has once decided an appellate closure court, stage a later
the trial
previously
This court has
reconsidered
duty
is under a
to follow the
litigation,
compel-
presented
its decisions when
”
ruling
court’s
issue....
appellate
Cirami,
F.2d
ling new evidence. See
Cirami,
that,
in Tenzer the new evidence does not (1) of: volun- principally case because it. The new evidence does not undermine (2) IRS; tary the preju- to our period refer to the time relevant by dice caused unfair actions taken decision, namely leading prior period (3) agents; and its ex- including to and the return of Tenzer’s up trаordinary acceptance rehabilitation and Thus, it does compromise. first offer in responsibility. sentencing, Judge At arrangement that no change not the fact opened Brieant his remarks on Rather, simply made. pay had been by noting, hyperbolically, that somewhat speculative prospect that had raises finally gained “courts this have Circuit (or continued, they negotiations might power depart downwardly.” unlimited not) might agreement have resulted Nevertheless, when he turned to consider point and the at some between Tenzer claims, judge Tenzer’s first two con- speculation is not an down the line. Such cluded he could not because for reconsideration. appropriate basis I. Specifically, our mandate holding do not disturb our Since we judge although stated that he believed comply I that Tenzer did not of [the Tenzer “was entitled to the benefits policy, again that could policy,” disclosure] unnеcessary find it to decide whether the “provide a reasonable basis for” a de- process due afforded parture because “a court must honor the rights whether those were vio- rights and mandates and decisions of the Court of by the lated IRS. connection, Appeals.” Judge the extent that Brieant also found that to Sentencing B. unfairly Tenzer has “been treated ... already ... this has been We now turn to claim review,” and so is not appellate the district court misunderstood its a matter *8 authority downwardly depart proper departure. judge in sen a basis for The to by on this stat- aspect appeal ruling point This of the involves concluded his tencing. “simply gener- I important ing: doctrines: the mandate rule because believe two requires and the “substantial deference” due a dis alized fairness Court judge determining in connection with a down- step trict court whether a take some sentencing departure,” doing so wоuld amount departure guidelines from the ward States, by departure.” v. to “a nullification Also is warranted. See Koon United 81, 98, 2035, 2046, that his connection with Tenzer’s claim 518 U.S. 116 S.Ct. 135 (1996). that, unfair, correctly judge L.Ed.2d 392 We believe making monthly payments support towards his of this conclusion I relied many of Kishlan- liability, making on Tenzer’s failure to follow a offer in substantial $600,000). sky’s complying with the directives towards (approximately compromise taxes, becoming policy: current on his 1992 42 in the use came disagreement appeal 33. Because the that his
noted information, dismissing the case was from an order discretion prosecutorial of no to decide panel there had occasion departure. basis for appropriate an not concerning sentencing, includ- rejected issues then considered and judge any possible departure. for See a down- bases support third claim in of Salemi, 207, v. United States 46 F.3d 209 departure.6 ward (2d Cir.l995)(district may impоse a court It that a district is well settled enhancement on remand based sentencing depar grant court’s refusal to not in the previous on factors considered United appealable. is not generally ture Uccio, (same). at appeal); 940 F.2d 757-58 Labeille-Soto, v. 163 F.3d 100 States I, in at panel 127 F.3d Cir.1998). (2d have carved out an We qualify not for concluded that Tenzer did for in which exception to this rule “cases policy because “an sentencing judge mistakenly believes arrangement” pay had not been “made” authority grant that he or she lacks negotiations at the time with the IRS Clark, States v. given departure.” United ceased and the decided (2d Cir.1997). Although 128 F.3d prosecute. That conclusion cannot be normally presume that the district However, challenged by the district court. scope of court understands the its authori may aspects consider court certain ty, presumption we have held that “this that, although Tenzer’s сase irrelevant for pro where can be overcome the record conviction, purposes may well be rele- reviewing with clear evidence vides in- purposes sentencing. vant for For judge misap of a substantial risk that the stance, the court in Tenzer I noted that the prehended scope of his au is not satisfied (internal Id. thority.” quota citation and Id. by payments.” “mere offers to make omitted); see also tion marks that, purposes It also noted Montez-Gaviria, F.3d policy, taxpayer “it is irrelevant that a (2d Cir.1998). argues, and we eventually agreement,” intends to reach agree, passages Judge from that, therefore, alleged good “Tenzer’s colloquy reproduced Brieant’s above con appropriate intentions” were not an basis the “clear evidence of a substantial stitute factors, however, for dismissal. Id. These judge may fully risk” that not have may judge considered authority in this understood his if evaluation the sentence he believes case.7 “mitigating them be of a circumstances kind, Judge degree, adequately Brieant’s concern with “nullifica- or a taken by departure” interpret [sentencing] tion led him to into consideration ... broadly. § A corollary guidelines.” (quoting mandate rule too 5K2.0 U.S.S.G. 3553(b) (1994)).' above, Indeed, § mandate rule we discussed see U.S.C. is 39-40, supra “upon quite is remand the conceivable that —as occurred here— may taxpayer complete trial court consider matters not ex- after a makes a disclo- liabilities, pressly implicitly part of the decision of sure of his tax and offers to Cirami, IRS, appeals.” the court of negotiations 563 F.2d at settle with the quotations 6. The district court stated that it did not be- 7. As the dissent's extensive from demonstrate, lieve Tenzer's rehabilitation had been extraor- colloquy Judge Brieant was *9 dinary. acceptance The court noted that quite thorough sentencing in his of Tenzer. responsibility already was into account taken factors, however, thoroughness His on some guidelines. Finally, the the court also ad- seriously cannot undo his failure to consider procrastination” dressed "self-destructive and others. capacity” possible "diminished as bases for departure, depart but declined to on those grounds. We do not disturb of these findings.
43
down,
policy.”
the
950 F.Supp.
break
and
IRS tration
at 563.
nevertheless
opinion,
with a
In his second
issued after the
proceed
decides to
appropriately
I,
judge
That does not mean remand in Tenzer
noted that
prosecution.
criminal
judge cannot then take
he
“Tenzer
provided
[not]
that
the district
felt
sentencing
taxpayer’s
regarding
reasonable notification
the sta-
into account
parties
of the
negotiations,”
and the conduct
and that
intentions
tus
“the IRS’
during
negotiations.
negotia-
unilateral decision to terminate
Mr. Tenzer
unfair....”8
4
tions with
that
previously
have held
“ab
We
F.Supp.2d
sentencing
at 309. In his
collo-
sentencing
express prohibition,
sent
noted
quy,
judge again
that this issue
consider, in an unusual
court ‘is free to
continues to be “of some concern to the
that make
whether or not
factors
entirely
Court.” It is
consistent with the
...
in sufficient
present
it unusual
are
precedent
granting
in this Circuit
”
degree
departure.’
or
to warrant a
kind
judges
sentencing
court
discretion
to
(2d
Core,
74, 77
States v.
125 F.3d
United
judge
this district court
to
allow
Cir.1997)
Rivera,
(citing United States v.
downwardly if
he finds
this case is
Cir.1993)
(1st
942,
(Breyer,
994 F.2d
sufficiently unusual or that it falls out of
C.J.)),
Reyes
denied sub nom.
v.
cert.
See,
Core,
e.g.,
the heartland.9
by
sentencing
My
to file his federal income
for
decision
this case.
failing
argue
attempted
that his
years
colleagues
and still
contend that
six
this case involves
voluntary
entry
disclosure
into
IRS’s
competing
two
doctrines:
the mandate
end,
albeit unsuccessful
program,
substantial
due a
rule
deference
sentencing.
can
taken into account for
district court’s
decision. While
Further,
the district court should not be
I do not concede that these doctrines are
considering
from
whether
precluded
necessarily
competition in this
I
negotiations,
terminate
IRS’s decision to
application
think that the
of either doctrine
Tenzer,
signals
its
see
despite
previous
requires affirmance of the district court
unfair in
supra
light
n. was
of its usual
decision.
voluntary
administration оf the
disclosure
appellant,
experienced
tax attor
out,
policy.
pointed
As the district court
accountant,
ney and
was convicted on his
finding
is distinct from Tenzer I’s
such
plea
guilty
to a four-count Information
holding
given
a reason-
comply
charging
timely
willful failure to
file in
length
able
of time to
with the
policy.
dispute
come tax returns. There is no
timely
person
that Tenzer failed to
file his
sum,
we do not now decide whether
years
al
income
returns for the
factors,
individually
of these
taken
or
through
pay any
for
taxes
those
together,
appropriate
constitute an
basis
At
years.
the time he made
formal
his
simply
for
that their
departure;
hold
compromise
offer in
in the amount of
by
has not
out
consideration
been ruled
$250,000,
liability
approx
Tenzer’s tax
I.
our mandate
Tenzer The district court
imately
Although
million.
the district
evaluate,
$1.3
position
is in the best
in the
court first dismissed the Information on
instance,
depar-
first
whether а downward
Koon,
ground
appellant
ture is
See
at
satisfied
appropriate.
U.S.
(discussing
policy
116 S.Ct.
the dis-
IRS’s
advantage”
trict court’s “institutional
prosecution,
therefore was immune from
determining
sufficiently
whether a factor is
finding
we reversed on a
that the offer in
exceptional to warrant a
If
departure).
compromise
appellant
submitted
court,
reconsideration,
upon
was too little and too late to constitute
present
concludes that the
record does not
compliance
See United
support
departure,
a downward
it is free to
(2d
Tenzer,
States v.
mand sentencing the district court’s deci- taxpayer tions. One condition is that the sion for reconsidеration- consistent pay, arrange- either or make fide bona opinion. pay, ments applicable taxes and MINER, Judge, dissenting Circuit penalties. Since Tenzer had considerable part: at the got making assets time he around to compromise, his offer he was advised
Because it clear to seems me that the that a reasonable offer would be experienced knowledgeable $600,000. $250,- an offer made court judge scope well understood the and, rejected when the offer was discretionary departure authority and assets, failure to include all indicated that properly it, respect- not to exercise chose fully he would resubmit the offer.' id. majority dissent from so much of the same See opinion as remands for reconsideration of at 224-26. *11 by [Sentencing] with the protracted discussions sideration Commis-
During his IRS, sion. failed to become current the liabilities, stalling and his accruing
on The district court concluded its examina- in apparent were to those involved tactics departure tion of the issue as follows: by case. All this is processing the of his essentially So I’ve considered all of majority opinion’s the way answering of made, arguments being the even those (or attempt to revise allow the apparent on, that I’ve not commented and I’ve revise) factual predi- court to district concluded that I should not depart already offenses. We cate for Tenzer’s downwardly as a matter of discretion disclo- public have dealt with and in the and so I interest de n 3' to is clear that Tenzer cline do so. “[I]t sure defense: including given ample opportunity, beginning Between the and the end of time, comply with length reasonable of to of arguments its discussion for down- yet policy, re- departure, ward the district court touched (em- Id. at 227 peatedly failed to do so.” factors, many rejecting all of them as hаve no occasion to phasis supplied). We departure sought. basis for the First and revisit our conclusion that foremost, according judge, to the district that Tenzer had finding court erred “that the government claim violat- pay. to made a bona fide offer ed Mr. rights Tenzer’s constitutional of process by giving due him full remand, plea entered a of On a highly publicized voluntarily benefit of admitting any guilt event his guilty, (sic) being giv- which was charged. all the offenses with which he was similarly en to a of other people number sentencing, learned On the date of rejected judge situated.” district Mr. judge great district court reviewed at Giving Tenzer’s claim. vent to his opinion bearing the factors on the length sentence “that the entire here is essen- Indeed, eventually imposed. that he tially contrary policies unfair” and detailed review of what court charac- IRS, adopted publicized presently terized as “the issues tendered judge district nevertheless made the fol- sentencing” con- connection lowing “I do not statement: believe pages transcript. fifteen sumed some together alone taken pro- these issues or for a regard request With to Tenzer’s a reasonable for the vide basis Court departure, the district court depart downwardly Mr. Tenzer’s case.” prefaced arguments its remarks as to Moreover, opined that a regard made in that as follows: judge “engage should not nullification by departure” sentencing merely be- The Court now has to consider the Ap- “that cause of its view the Court upon various bases which the different peals panel opinion in this was unfair case being depart is down- Court asked wrong”, “generalized or fair- or because by noting to start off ward and have requires rectify ness” question that the courts there’s no appellate unfair decision. finally gained in this Circuit have unlim- downwardly power ited on al- Second, the district cоurt “somewhat re- can most rational basis which gretfully” process declined to find a due offered, day in being and this is done violation in the decision of the United day only Tenzer, out the district. The Attorney prosecute ac- issue, however, which has to be resolved knowledging prosecutorial discretion Court, pres- Attorney. is whether the case to the is confided United States rejected facts constituting ents a combination of Next the district court “the claim degree mitigating procrastina- circum- of self-destructive the kind so-called departure. adequately stances not taken into con- tion” as a basis for downward rare situation” only “in the from its read- tion is rebutted derived Although the court *12 a that “clear evidence of sub- memorandum where there is pre-sentence of the made, ap- judge misapprehend- the court that the being stantial risk was this claim authority.” that this scope departure counsel the of his was advised ed parently Nevertheless, Brown, noted the court v. 98 F.3d not so. was (2d Cir.1996). “certainly opin- doesn’t majority The of the procrastination that is judge in or life achieve- up distinguished work trial [Tenzer’s] show ion that the not believe that scope and the Court does of ments to have misunderstood the seems they whatever problems, psychological depart his in this case. How authority his ... a are, justifying level of thought rise to the judge The district can this be so? departure.” (mistakenly) power he had “unlimited that any ra- downwardly on almost addressed dimin- district court then The (empha- which can be offered.” tional basis ground a for downward capacity as ished judge a who sees al- supplied). Can sis Although uncertain whether departure. authority to no on his restriction most advanced, had in fact the this claim been “misappre- downwardly depart be said in event it opined court district authority in that depth the of his hend” adequate “would not find substantiаtion we have regard? do not think so. What discretion to support the exercise of its apprehended more judge a district who is ground.” downwardly depart on not to exer- power than he had but chose of Tenzer’s court then turned to evidence bright- court has cise it. Our established character, honesty dealing good his court only rule that when the district line colleagues, high his ethical clients authority that it has does not realize professional practice in his standards is the denial depart under Guidelines pro work. The district bono departure reviewable at all. of a downward matters would consid- stated that those within determining ered “in a sentence majority opines At in its re- range.” point Guideline scope of its au- court misunderstood factors, the court com- departure view of sentencing into at thority to “take account a case mented that this was outside intentions and the conduct taxpayer’s Sеntencing “heartland” of the Guidelines parties during negotiations.” way quite in a to Tenzer: detrimental noted, I supra previously at 43. As do See knows Very people few this Court agree that the district court misunder- skipped years of have four or has seen departure authority scope stood the of its they a substan- a row where such thought that it it had except to the extent tial income and here’s a defendant who that, I authority Beyond than it did. more years has been late as to six and beat majority cannot subscribe to the simply the tax on one of them because be- may good that Tenzer have had inten- view himself, is, he came time-barred and respect compro- tions with to his offer fully professional. informed somehow mise or that the The district court concluded its review “negotiations” at conduct of fault its the various bases for downward place, with Tenzer. In the first there sim- by rejecting Tenzer’s rehabilitation as “not ply negotiations no to be terminated were extraordinary any way” by rejecting prose- at there was a decision to the time acceptance responsibility factor ongoing, negotiations cute. If were indeed compu- already credited the Guidelines not have out of then Tenzer would been tation. requirements compliance Tenzer, voluntary trial knows See presume judge
We that a (“If parties at cannot depar- 127 F.3d potential grounds for Guidelines Diaz, within a time on a suit- agree 176 F.3d reasonable tures. See United States (2d Cir.1999). then the arrangement payment, able presump- 121-22 That justified refusing light to treat unfair in IRS is its usual administration of discloser.”). policy.” taxpayer as See su- pra 44. But this would permit to remand tells the prior Our decision go against district court to the established story: prepared true Tenzer’s eoúnsel facts. Tenzer made no effort to comply rejected offer of previоusly to resubmit the with the voluntary disclosure policy, so $250,000; paid no taxes were for 1992 as there was no effort that could be “termi- current; required keep Agent Kishlan- *13 nated” by government. Accordingly, sky supervisor and her concluded that IRS, there was no “unfair” decision attempting good Tenzer was not in faith to just and it makes no sense to me to allow taxes, in pay engaged his but rather was ' the district court on remand to make a tactics; Tenzer’s file was stalling trans- n finding. different factual office, ferred to another and he was in- forego structed to his resubmission until In accordance with the Sentencing Com notice; attorney further was not mission formulation that guideline each resubmission, regarding contacted but should be considered as out a carving investiga- cases, he was that a criminal heartland or a typical informed set of we have id., way. tion was 127 held that a court under See F.3d confronted with an atypi case, point, pre- 224-25. At that cal differing significantly from the norm, vented from chain jerking may consider departure whether a already all longer, being apparent it to is warranted. See United States v. Mili (2d Cir.1995). kowsky, concerned that he was a candidate for 65 F.3d 7 We prosecution. majority says adopted criminal have the rule that district courts determine, may “mitigating” may cases, these circum- be unusual whether can cir- stances. How this be so? The the established facts that make the cases “ prevented present cumstances that Tenzer from unusual ‘are in sufficient kind or ” negotiating activity degree were criminal departure.’ his own to warrant a United (2d Core, procrastination. and That v. was the tenor States 125 F.3d 77 Cir. 1997) previous opinion, Rivera, of our (quoting and district 994 (1st Cir.1993)). judge correctly of understood our view F.2d What we imposed these when he have given circumstances sen- never said is a set of accepted establishing tence. facts may crime rеplaced by another set of facts for the By guilty plea, his Tenzer admitted purpose of sentencing. necessary timely he failed to make the intentions, arrangements required for ma- compliance good On the issue of Brennick, jority That cites United States v. (1st Cir.1998), predicate factual plea support is what Ten- F.3d 10 of its revise, majority zer now seeks to and the decision to In that remand.
opinion gives him to First that a permission do so. Circuit held district court had previous authority depart downwardly While it is true that our decision to in the case taxpayer charged pay did not consider the circumstances of Ten- of a with failure to in the sentencing, wage withholding security zer’s offer context of and social taxes clearly upon showing delay did indicate that there were no an “intent to “negotiations” pending only at the time case at 14. payment briefly.” Id. Such a prosecution. showing was referred for- criminal to wаs said “take the case out of waiting only opportuni- holding for the the heartland.” Id. That does not ty previously rejected propos- support my colleagues’ position to submit a because it majority making al. The would allow the involved the of new and distinct findings, to whether the IRS’s factual not a contradiction of facts “consider[] negotiations, despite previously decision to intentions of terminate established. The Tenzer, previous its ... signals anything was Tenzer have been shown to be and that compromise” “bona fide offer intentions As to Tenzer’s good. but completing “thwarted” from policy, he had been to the regard on The district court resubmitting lowball the offer to the IRS. his insistence rejec- knew was previous that he that our compromise recognized remand offer in evidence of surely cannot be foreclosed Tenzer unacceptable tion of contentions these a bona fide offer. sеntencing. make No them on raising his intention from Agent Kishlan- comply al- change His failure can what we “spin” amount of current on to become sky’s guilty directions and what the ready determined have toward taxes, monthly payments make conduct. regard to Tenzer’s plea imports compromise liability to make his tax to acknowl- my colleagues The failure $600,000 leave neighborhood in the recog- offer the district court edge that which intentions. finding good for a no room respect clearly articulated nized and an intention stall facts demonstrate compels this case to Tenzer’s intent nothing more. As this dissent. *14 timely file in- failure to regard to his returns, crimes with which he come plea is the guilty best charged, his mind. his state
evidence my is col- most curious to me
What is rejection of conclusions
leagues’ apparent decision. While previous at in our
arrived not deal with sentenc- that we did is true Village HANDELSMAN and Burton issues, clear-cut deter- made some Liability Limited Green Associates My about Tenzer’s conduct. minations Plaintiffs-Appellants, Company, doing just what Tenzer colleagues now are ignore disagree- our asks them do— original conclusions ments with VILLAGE ASSOCIATES BEDFORD following from passage judge. PARTNERSHIP, Bedford LIMITED appeal sums reply brief on Liability Village Associates Limited on downward up position Kronman, De- Company, Mark J. a nutshell: fendants-Appellees. previous- the court Tenzer showed—and 98-9434, 99-7948. Nos. good Docket proceeded he had ly found—that disclosure, in- faith to make Appeals, States Court of compromise, cluding a fide offer bona Circuit. Second by the IRS from had been thwarted but Because these completing process. Argued: Feb. kind, circumstances of a “mitigating are May Decided: degree, adequately taken into or to a Sentencing Com- consideration they showed this
mission” and because atypical of failure-to-file
case
cases, perfectly proper it would be take ac- lower court to them into departing downward.
count only problem argu- with Tenzer’s already have rejected is that we
ment that Tenzer
previous district court findings to make vol- “proceeded good faith disclosure,”
untary that he had made