Case Information
‐ ‐ cr United States
In the
United States Court of Appeals
For the Second Circuit
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A UGUST T ERM No. ‐ cr
U NITED S TATES OF A MERICA ,
Appellant,
Y OUNG C. P ARK
Defendant Appellee.
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Appeal from District Eastern New York. ― Frederic Block, Judge ________
A RGUED : J UNE D ECIDED : J ULY ________
Before: C ABRANES C ARNEY D RONEY Circuit Judges ________ appeals
defendant Young C. Park, pursuant October judgment Eastern New York (Frederic Block, Judge ), following Park’s guilty plea ‐ ‐ count filing a false corporate tax return violation U.S.C.
We consider on appeal whether District erred probationary rather term imprisonment solely belief could afford cost during so ‐ called “government shut down.” hold District failed conduct meaningful enumerated incarceration, much less political phenomenon styled “government shut down,” permissible determining term imprisonment. need for deterrence just punishment own remarks suggesting warranted, we hold imposed here substantively unreasonable. Accordingly, VACATE REMAND for plenary resentencing accordance opinion.
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P ATRICIA A. P ILEGGI Schiff Hardin LLP, New York, NY, for Defendant Appellee Young C. Park. E LISSA H ART M AHAN (Kathryn Keneally, Assistant Attorney General, Frank P. Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy Section, Gregory V. Davis, Attorney, Tax Division, brief ), for Loretta E. Lynch, Attorney Eastern New York, Brooklyn, NY, Appellant
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P ER C URIAM : United States appeals sentence imposed on
defendant Young C. Park, pursuant an October 24, judgment District Court for Eastern District New York (Frederic Block, Judge ), following Park’s guilty plea count filing a false corporate tax return in violation U.S.C.
We consider appeal whether District erred Park a below guidelines probationary rather term imprisonment solely belief could afford cost during so ‐ called “government shut down.” hold failed conduct meaningful enumerated U.S.C. and incarceration, much less political phenomenon styled “government shut ‐ down,” permissible determining term imprisonment. need deterrence just punishment own remarks suggesting warranted, we hold imposed here substantively unreasonable. Accordingly, VACATE REMAND plenary resentencing accordance with opinion.
BACKGROUND
On July Park waived indictment pleaded guilty information charging him filing false corporate tax return, violation 7206(1). According Presentence Report (“PSR”) prepared Probation Office, diverted his business’s cash receipts ‐ ‐ from corporate bank account, filed false corporate tax returns that significantly understated business’s gross receipts, and underpaid payroll taxes that were due and owing. The PSR calculated applicable Guidelines range to months’ imprisonment, based on Park’s prior convictions fraud offenses and total tax loss $133,601.
Park was sentenced October 11, 2013, during so ‐ called “government shut down.” At hearing, Court initially revealed was inclined to impose incarceration Park’s prior convictions resulting prison sentence. The then noted, however, “economic problems” caused government shut down warranted consideration, stating:
I’m going say I probably give period incarceration if financial pressures has, system government has. Especially low level federal employees at present time. And really can’t afford luxury paying another $28,000 keep person jail under circumstances I encourage you appeal. then expressly reaffirmed decision was solely shut ‐
*5 5 13 4142 down, asserting, “I’m making the record I am not going put him in jail only because economic plight are facing today .” [4] then proceeded three years’ probation, including six months’ home confinement, cost which be paid Park. It did not a fine or any restitution beyond already paid as condition guilty plea. Having secured required approval Solicitor General United States, [5] filed timely notice appeal, contending erred in considering as relevant factor.
DISCUSSION review sentences appeal only “reasonableness.” [6]
This type scrutiny includes two components: “procedural” and “substantive” review—although sentencing, as in many areas law, precise line between procedure and substance often elusive. [7] Whether sentence satisfies the objectives enumerated in the U.S.C. § 3553(a)—a substantive inquiry—depends upon the explanation given by the pursuant to U.S.C. § 3553(c)—a procedural requirement. Where, here, district court relies improper factor to justify the sentence imposed, can difficult, if impossible, for reviewing court to evaluate separately the “procedural” and “substantive” reasonableness sentence.
A. “Procedural” Unreasonableness
The procedural review focuses whether the sentencing court followed all the necessary steps deciding upon sentence. A district court normally begins all sentencing proceedings by calculating the applicable Guidelines range, and will then consider the factors listed U.S.C. § 3553(a), required statute, *7 7 13 4142 before imposing final sentence. [12] Although “[a] judge need utter ‘robotic incantations’ repeating each factor that motivates sentence[,] . the judge must explain enough about the reviewing court both understand it assure itself the judge considered the principles enunciated federal statutes the Guidelines.” [13] Further, when imposes outside recommended range, the Court did here, “must extent deviation ensure justification sufficiently compelling support degree variance.” [14]
After record, we conclude Court committed procedural error imposing probation lieu two reasons. First, only Court deemed relevant government economic problems allegedly caused shut down. As Court clearly announced, “I am going put him jail only because economic plight we facing today .” [15] After emphasizing decision solely upon consideration, then rebuffed defense counsel’s suggestion “supplement record,” asserting, “[i]f resentence him, we will later.” stated if Appeals were reverse, “consider all these factors” at resentencing, See 3582(a). See, e.g. Preacely F.3d (2d Cir. 2010). Corsey at (citation omitted). Cavera (en banc) (citation
internal quotation marks omitted). App. (emphasis supplied). Id Id.
clearly indicating did not consider the relevant factors the first instance. The therefore committed procedural error by refusing to consider the § 3553(a) factors deciding what is an appropriate sentence.
Second, equally problematic, is the cost of incarceration to the government—the sole justification for imposing of probation rather incarceration—is not relevant sentencing factor under the applicable statutes. agree with the Eighth Circuit that, based on the plain language of § 3553(a), no sentencing can reasonably be read to encompass cost incarceration. Nor does the statute permit the sentencing to balance cost against sentencing goals enumerated § 3553(a).
Such an understanding is consistent broader legislative scheme. The imposition fine governed U.S.C. which, like § 3553(a), includes list factors district judges consider. Sections states that, “[i]n determining *9 9 13 4142 ‐ whether to impose fine, . . . shall consider, in addition to set forth in section 3553(a) . expected costs to of any imprisonment ” [20] This section makes clear cost incarceration not included § factors; if it were, cost imprisonment would not been necessary to list as an additional factor relevant to imposition fine. [21] argues alternatively that, although statute may not require sentencing courts cost imprisonment, nothing prohibits them doing so. We reluctant, however, expand relevant sentencing considerations beyond those enumerated § 3553(a), insofar as purpose “statutory mandate § 3553” “necessarily channel[ ] district court[s’] discretion.” Permitting considerations costs as an additional factor be particularly inappropriate view “the express inclusion cost imprisonment as consideration [with respect fines] § 3572(a),” which “demonstrates when Congress intended include cost consideration, did so very clearly.” Moreover, Eighth Circuit has noted, “[t]he decision whether tax dollars should be used pay lengthy sentences congressional determination, made federal courts.” conclude, therefore, factor enumerated nor additional upon courts may rely deciding under U.S.C. 3582(a). Court accordingly committed procedural error Park sentence affirmatively refusing consider the factors, relying instead an impermissible factor—namely, whether the government could afford Park’s incarceration.
B. “Substantive” Unreasonableness
Turning the question of substantive reasonableness, an appellate court “will . . . set aside district court’s substantive determination only exceptional cases.” Appellate of is truly exceptional within the scheme of federal law no more an algorithm calculus the decision of judge impose particular first place. both instances, judicial function involves an exercise of judgment channeled prescribed norms. thus stated “‘reasonableness’ inherently concept of flexible meaning, generally lacking precise boundaries,” “it *11 11 13 ‐ 4142 ‐ involves some degree of subjectivity often cannot be precisely explained.” [28]
In of this leeway, our review of a is akin review under an “abuse of ‐ discretion” standard, [29] form of with appellate courts are long familiar. noted on many occasions “abuse of discretion” is distinctive art is meant derogatory statement about judge whose decision found wanting. [30] It more properly understood referring occasions where, after examining trial records, appellate court reaches informed judgment ruling “an erroneous view law clearly erroneous assessment evidence, decision cannot located within range permissible decisions.” [31] In context sentencing, trial’s court’s evaluation evidence clearly erroneous when “left with definite and firm *12 12 13 4142 conviction mistake has been committed.” [32] length sentence is outside range permissible decisions when “affirming damage administration justice because shockingly high, shockingly low, or otherwise unsupportable as matter law.” [33] In determining shocks judicial conscience otherwise unsupportable, we use our “lodestar parsimony clause 18 U.S.C. § which directs sentencing courts ‘impose sufficient, but greater necessary[,] comply with’ set out 18 U.S.C. 3553(a)(2 ) ” [34] —namely, retribution, deterrence, incapacitation. [35]
A reviewing should avoid its duty apply these general standards review simply because its respect for an experienced capable trial judge, why “have cautioned against converting for substantive reasonableness into ‘rubber stamp.’” [36] thus exercising judgment, reviewing court is disparaging person a trial judge, but simply concluding, after careful review, (1) sentence lacks a proper basis record, (2) trial judge’s assessment evidence leaves reviewing court definite firm conviction mistake has been committed, (3) reviewing has reached informed judgment otherwise unsupportable as matter law. instance, all these (any one be sufficient vacate sentence). are therefore bound conclude substantively unreasonable as well as procedurally unreasonable.
With respect 3553(a)(2) discussed at hearing, general deterrence occupies especially important role criminal tax offenses, as criminal tax prosecutions relatively rare. As Guidelines themselves state, “[b]ecause limited number criminal tax prosecutions relative estimated incidence such violations, deterring others from violating tax laws primary consideration underlying these guidelines.” This case also presents heightened need for just punishment specific deterrence Park’s prior convictions for financial crimes. already served eight months prison for fraud, he began diverting cash receipts his corporate bank account—the basis his conviction here—only year after he completed his supervised release prior fraud convictions.
As part our reasonableness inquiry, look own explanation hearing, insofar “our ability uphold reasonable will informed court’s statement reasons (or lack thereof) that it elects impose.” Court’s remarks in case indicate term imprisonment was needed punish deter Park in light his criminal past, that, circumstances presented here, it would have been inclined impose incarceration if government were not shut down. For example, after noting it had “a hard time swallowing that” “spent eight months jail he comes out he commits another crime years later,” stated “would probably give period incarceration if not financial pressures has, system government has.”
Such statements reveal view that, if government were not shut down, term incarceration would have been needed satisfy parsimony clause—that is, incarceration been “sufficient, but not greater necessary” satisfy purposes outlined 3553(a)(2). But fact experiencing widespread budgetary challenges did somehow grant “a blank check whatever sentence[ ] suit[ed] [its] fancy.” Particularly since valid factor, left only conclusion: A term fact minimally sufficient fulfill statutorily mandated objectives, rendering unsupportable matter law. ‐ We therefore hold that, the need deterrence just punishment District Court’s own conclusion that, on record before it, term was warranted, probationary here substantively unreasonable. holding District Court’s probationary
substantively unreasonable we rely heavily upon Court’s own evaluation case, as revealed its statements hearing. Our holding therefore limited record currently before us, shows sole reliance cost incarceration fashioning appropriate sentence, as well belief that, were government shut down, incarceration be warranted. thus do foreclose possibility imposition remand, after appropriate consideration 3553(a) thus far left unaddressed, could substantively reasonable well.
CONCLUSION
To summarize, hold that: (1) committed procedural error because:
a. only considered economic problems caused “government shut down” rather conducting meaningful factors; b. sentencing factor enumerated in nor separate upon which courts may rely deciding incarceration. (2) committed substantive error probationary sentence:
a. A sentence substantively unreasonable when (1) lacks proper basis record, (2) we left with definite and firm conviction mistake made assessing evidence, (3) imposed shockingly high, shockingly low, otherwise unsupportable matter law.
b. own statements hearing regarding nature seriousness offense Park’s prior financial crimes, absence further explanation application Park, imposition meets all these criteria (any sufficient holding unreasonableness). Accordingly, VACATE REMAND plenary resentencing accordance opinion.
[1] Park convicted conspiracy commit mail fraud mail fraud charges, arising his involvement Ponzi style scheme resulted total loss investors almost $7 million. sentenced principally year day incarceration, he completed December 1999.
[2] See Lisa Rein, Shutdown’s Impact Continues Grow W ASH P OST ., Oct. A1.
[3] App.
[4] Id. 145 (emphasis supplied).
[5] Under 3742(b), “[t]he Government may not further prosecute [a appeal] without personal approval Attorney General, Solicitor General, or deputy solicitor general designated Solicitor General.”
[6] v. Corsey , 366, (2d 2013); see also Gall v. U.S. 38, (2007).
[7] Indeed, Justice Holmes famously remarked different context, word like “substance” “procedure” “is crystal, transparent and unchanged, skin living thought may vary greatly color and content according circumstances time used.” Towne v. Eisner U.S. 418, (1918). Justice Brennan, writing Supreme similarly noted “[t]he words ‘substantive’ ‘procedural’ mere conceptual labels no sense talismanic.” Byrd Blue Ridge Rural Elec. Coop., Inc. U.S. (1958); see Laurence H. Tribe, American Constitutional Law ed. (noting substance procedure cannot “neatly separated”). For reason, issue “is more appropriately characterized procedural matter overriding significance.” Albright Oliver U.S. (1994).
[8] See Giovanelli (review for procedural reasonableness includes determining the court “consider[ed] the . . . factors listed § 3553(a),” while for reasonableness asks “whether the length reasonable the set out [§] 3553(a)” (citation omitted)).
[9] See Gall U.S.
[10] Under § must consider seven factors. The first factor broad directive to “the nature and circumstances the offense the history characteristics the defendant.” Id. 3553(a)(1). The second factor requires consideration the general purposes sentencing, specifically, need for imposed—(A) to reflect seriousness offense, to promote respect law, to provide just punishment offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect public further crimes defendant; (D) to provide defendant needed educational vocational training, medical care, other correctional treatment most effective manner. Id. 3553(a)(2). third pertains kinds sentences available; fourth Sentencing Guidelines; fifth any relevant policy statement issued Sentencing Commission; sixth need avoid unwarranted disparities; seventh need provide restitution any victim. Id. 3553(a)(3) (7).
[18] See Molina (8th Cir. (“Although sentencing courts are required sentencing set out cost imprisonment among them. Thus, doubt courts authority lesser sentences cost imprisonment.”).
[19] The cost lacks significance judge’s decision depart from Sentencing Guidelines range. See Wong (8th 1997). Indeed, only Guidelines provision seems allow departures basis cost “in case seriously infirm defendant,” when “home detention may be efficient as, less costly than, imprisonment.” U.S.S.G. 5H1.4. But even case elderly defendants, Guidelines clarify condition or appearance must “present an unusual degree distinguish[ ] case typical cases covered guidelines.” Id. absence prevalent, even occasional, justification departure under Guidelines thus reaffirms our conclusion appropriate factor, except highly unusual cases difficult imagine anticipate.
[20] 3572(a)(6).
[21] Accord Tapia Romero F.3d (9th Cir. 2008).
[22] Jones F.3d 2008).
[23] Tapia Romero at 1128.
[24] Wong
[25] To extent wishes consider of imprisonment at resentencing, of course may do so through imposition of fine, permitted under 3572(a)(6); accord U.S.S.G. 5E1.2(d)(7) (“In determining amount fine, shall . . . expected costs government any term probation, term supervised release imposed.”); Mordini F.3d 2004). As rightly notes, given Park has net assets approximately $1.1 million income $11,000 per month, well within discretion fine covered full costs incarceration. Indeed, did order cover costs his home confinement.
[26] It well settled “[n]othing prevents us reaching both procedural reasonableness course appeal where find both types error.” Corsey at (internal quotation marks omitted).
[27] Cavera (emphasis original).
[28] v. Sindima , 488 F.3d 81, 85 (2d Cir. 2007) (citations and internal quotation marks omitted).
[29] Corsey , F.3d 374; see Gall , U.S. at
[30] See, e.g. Ghailani F.3d (2d Cir. 2013); Zervos v. Verizon N.Y., Inc. & nn. (2d Cir. 2001). As Frank M. Coffin, late much admired Chief Judge First Circuit, described discussing how he went about difficult task reviewing decision “abuse discretion”: I know no formula kind case except live record until breathes it, gain what one can similar cases, brood over consequences, and, finally, if one’s sense rawness becomes blunted over time, affirm. But if redness remains, after days weeks, take big breath reverse. Frank M. Coffin, On Appeal: Courts, Lawyering, Judging (1994)
[31] re Sims (Sims Blot) (alterations, citations, internal quotation marks omitted).
[32] Anderson v. Bessemer City , 470 U.S. 564, 573 (1985). Although this test typically applied when reviewing factual findings clear error, also extends decisions courts, like certain decisions, “essentially factual application fact law.” United States v. Hinkson , F.3d 1247, 1262 n.19 (9th Cir. 2009) (internal quotation marks omitted). Accordingly, several our sister circuits understandably looked test analyzing reasonableness. See, e.g. , United States v. Daniels F.3d 1237, (11th Cir. 2012); United States v. Maier , F.3d 1148, (9th Cir. 2011).
[33] United States v. Douglas (2d Cir. (internal quotation marks alteration omitted).
[34] Id.
[35] Although rehabilitation included under 3553(a)(2), Tapia Supreme held Sentencing Reform Act—in particular, —“precludes courts imposing lengthening prison promote offender ʹ s rehabilitation.” S. Ct. (2011).
[36] Rigas 2009).
[37] U.S.S.G. 2T1, introductory cmt.
[38] United States v. Rattoballi , F.3d (2d Cir. 2006), abrogated part other ground Kimbrough U.S. (2007); see also, e.g. Fairclough (evaluating court’s reasons offered).
[39] App. 144.
[40] Jones
[41] See notes accompanying text, ante