Opinion
03 CR 1043 (HB).
December 19, 2005
OPINION ORDER
On August 9, 2005 the Second Circuit remanded the above captioned case to this Court to determine whether Defendant Ronald Goldberg ("Goldberg") should be re-sentenced in light ofUnited States v. Booker, ___ U.S. ___; 125 S. Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). This Court has considered all materials submitted by Goldberg through his counsel and by the Government, and declines to impose a different sentence.
I. BACKGROUND
Goldberg was released from federal prison on August 30, 2002, after serving a 125-month sentence for interstate transportation of stolen securities and for forging the signature of a U.S. Magistrate Judge. (Complaint, dated 8/13/03, at 4, attached as Ex. B to Government's Memorandum, dated 10/18/05 ("Gov't Mem.")). On January 13, 2004, while on supervised release, Goldberg pled guilty to wire fraud in connection with misrepresentations he made to undercover agents regarding his ability to secure financing for a multi-million dollar loan. The Government offered Goldberg a cooperation agreement; however, Goldberg rejected that agreement and pled guilty to the indictment. (Gov't Mem. at 3).
At the defendant's request, this Court sentenced Goldberg immediately after accepting his guilty plea, without the benefit of a presentence report. Goldberg did not dispute the calculation of the applicable Guidelines range set forth in the Government'sPimental letter, which included an overall offense level of thirteen and placed Goldberg in criminal history category V. The corresponding Guidelines range was thirty to thirty-seven months, and I sentenced Goldberg to thirty-six months.
United States v. Pimental, 932 F.2d 1029, 1034 (2d Cir. 1991) (stating that the Government should provide defendant with a calculation of the applicable Guidelines range when feasible).
Goldberg appealed his sentence, and while his appeal was pending, United States v. Booker, ___ U.S. ___; 125 S.Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) were decided. The matter was remanded to this Court to determine whether to re-sentence Goldberg in light of these recent holdings.
II. DISCUSSION
Goldberg fails to articulate a sufficient reason to re-sentence. Re-sentencing is necessary where a "nontrivially different sentence would have been imposed" had the Court had the benefit of the Supreme Court's holding in Booker and the Circuit's decision in Crosby. Crosby, 397 F.3d at 111-13, 117. As set forth in Crosby, courts must now consider the Guidelines as well as the factors listed in 18 U.S.C. § 3553 (a) in imposing sentence. Crosby, 397 F.3d at 111-14. The factors set forth in section 3553(a) include the nature and circumstances of the crime, the history and characteristics of the defendant, and the goals of punishment and deterrence. 18 U.S.C. §§ 3553(a)(1) (2).
Goldberg argues that he should be re-sentenced because I was unable to adequately consider his attempts at cooperation when I imposed his original sentence. While it is true that Goldberg attended several proffer sessions with the Government, he rejected a cooperation agreement and the Government concluded not to submit a "5K1" letter or a Rule 35 motion. The sentence originally imposed comports with the factors set forth in section 3553(a). While Goldberg attended proffer sessions, he provided no useful information to the Government. (Gov't Mem. at 7-8 ("Goldberg's pre-sentence cooperation proved entirely unhelpful to the Government . . .")). Furthermore, Goldberg's sustained criminal activity spanning nearly twenty years, coupled with the fact that the instant crime was committed within a year after completing a 125-month sentence (and while on Supervised Release), support the imposition of a 36 month sentence. See United States v. Bradley, 426 F.3d 54, 55 (1st Cir. 2005) (stating that a sentence above the minimum Guidelines sentence is a good indicator that the sentencing court did not feel constrained by the Guidelines).
U.S.S.G. § 5K1.1.
At sentencing, the Government stated that while it made no promises, its "intention" was to submit a Rule 35 motion. (Sentencing Tr. 1/13/04 at 12.) However, no such motion was made.
Goldberg's reliance on United States v. Murray, 02 Cr. 1214, 2005 WL 1200185 (S.D.N.Y. May 20, 2005) (Baer, J.), is misplaced. In Murray, I decided to re-sentence based on the defendant's cooperation. In Murray, as here, the Government had declined to seek a downward departure at the original sentencing. However, unlike Goldberg, Murray's cooperation did bear fruit — it lead to multiple indictments including that of two individuals charged with murder. Id. at *5.
Goldberg also argues that, in imposing sentence, I should look only to the $4,000 he actually received as a result of his scheme, rather than the more than $120,000 Goldberg sought in the commission of the fraud. (Complaint at 3-4.) The Guidelines require that the loss amount be based on the intended loss if the intended loss is greater than the actual loss. U.S.S.G. 2B1.1 Application Note 3(A). Guidelines aside, with respect to the factors set forth in section 3553(a), the intended loss is still the appropriate measure in this case. Goldberg's elaborate scheme to defraud the undercover agents of over $120,000 was more than a hypothetical plan, as is evidenced by Goldberg's capture at the location where he planned to receive full payment.
The FBI arrested Goldberg at a prearranged meeting where Goldberg was to meet with undercover agents and receive over $120,000. (Gov't Mem. at 2).