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explaining that, "pursuant to Crosby," the court decided whether to re-sentence defendant after obtaining counsels' views
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S1 00 Cr. 825 (PKL).
September 29, 2005
MICHAEL J. GARCIA, ESQ. United States Attorney, Daniel A. Braun, Esq. Assistant United States Attorney, Southern District of New York, New York, New York, Attorney for United States.
ROGER B. ADLER, ESQ., Roger Bennet Adler, P.C., New York, New York, Attorney for Defendant.
OPINION AND ORDER
Defendant Barbara Renor Jasper was convicted on March 21, 2003 of one count of embezzlement in violation of 18 U.S.C. § 657. On November 10, 2003, the Court sentenced Jasper to 37 months of imprisonment, followed by three years of supervised release, and ordered her to pay $433,615 in restitution as well as a $100 mandatory assessment. Jasper appealed her conviction and sentence. In an Order dated July 28, 2004, the Second Circuit affirmed Jasper's conviction but deferred consideration of her sentencing challenge until resolution of the questions it certified to the Supreme Court arising after Blakely v. Washington, 542 U.S. 296 (2004). Nearly one month later, following its decision in United States v. Mincey, 380 F.3d 102 (2d Cir. 2004), the Second Circuit rejected all of Jasper's sentencing arguments but stayed its mandate pending the outcome of the Supreme Court's decisions in United States v. Booker andUnited States v. Fanfan. After the Supreme Court's ruling inBooker, 125 S. Ct. 738 (2005), and the Second Circuit's initial application of Booker in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the Second Circuit remanded the case "for further proceedings in conformity with Crosby." In an Order dated April 5, 2005, this Court denied Jasper's request for a conference to present arguments supporting a reduced sentence in light of Booker and Crosby, and directed the parties, pursuant to Crosby, to file written submissions addressing whether re-sentencing is appropriate. See Crosby, 397 F.3d at 120 ("In making th[e] threshold determination [of whether to re-sentence], the District Court should obtain the views of counsel, at least in writing, but `need not' require the presence of the Defendant. . . .").
Booker and Crosby apply here even though they were decided after Jasper's conviction and sentencing because her case was still pending on direct review at the time of their disposition. See Booker, 125 S. Ct. at 769 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a `clear break' with the past.")).
After a thorough review of those submissions in light ofBooker, Crosby, the Court's original sentencing decision,see United States v. Jasper, 291 F. Supp. 2d 248 (S.D.N.Y. 2003) ("Sentencing Opinion"), and the recommendation of the Probation Office, the Court concludes that the original sentence would have been nontrivially different under Booker and therefore, resentencing is required. For the reasons discussed below and based upon proper consideration of the Sentencing Guidelines ("Guidelines") and the other factors listed in § 3553(a), the Court finds that a term of 33 months imprisonment is a reasonable sentence. Thus, the Court vacates its original sentence to the extent that it imposed a term of 37 months imprisonment and now sentences Jasper to 33 months imprisonment.
BACKGROUND
As discussed at length in the Court's prior opinions, Jasper is a native of Trinidad who came to the United States in 1978 and became a naturalized citizen in 1988. From April 2, 1984 to May 19, 2000, she worked for the United Nations Federal Credit Union ("Credit Union") in Manhattan. The Credit Union is a cooperative financial institution for employees and retirees of the United Nations and affiliated agencies. It maintains approximately 1.6 billion dollars in assets and operates two branch offices in the vicinity of the United Nations headquarters. The Credit Union also operates seven automated teller machines ("ATMs"). Jasper initially served as a bank teller in one of the branch offices and was later promoted to branch manager. On August 4, 2000, a grand jury indicted Jasper, charging that between 1997 and May 15, 2000 she embezzled funds from the Credit Union while performing routine ATM replenishments, in violation of 18 U.S.C. § 657.
See, e.g., United States v. Jasper, 291 F. Supp. 2d 248 (S.D.N.Y. 2003) (sentencing decision); United States v. Jasper, 2003 WL 21709447 (S.D.N.Y. July 23, 2003) (denying defendant's post-trial motions); United States v. Jasper, 2003 WL 1107526 (S.D.N.Y. Mar. 13, 2003) (quashing defense subpoenas); United States v. Jasper, 2003 WL 328305 (S.D.N.Y. Feb. 13, 2003) (addressing pre-trial evidentiary issues); United States v. Jasper, 2003 WL 223212 (S.D.N.Y. Jan. 31, 2003) (addressing pre-trial discovery issues).
At trial, the Government's evidence consisted primarily of documents, witness testimony and a videotape. The chief Government witness, James W. Fenimore, the Credit Union's Vice President for Finance during the relevant time period, testified that an external audit prompted him to conduct an internal investigation of the amount of money contained in the Credit Union's ATMs. According to his testimony and documentary evidence, the investigation revealed that, on more than 200 occasions between September 1997 and May 15, 2000, Jasper had under-reported the amount of money she removed from the two ATMs located in her branch. Moreover, he also found that she failed to submit the proper paperwork for ATM replenishments, which would have shown that she had under-reported an amount in excess of $400,000. In addition, the Government introduced a videotape taken from the branch office security camera, purporting to show Jasper failing to adhere to the Credit Union's ATM replenishment procedures and stealing money from an ATM.
The defense case was based largely on the testimony of character witnesses and Jasper herself. She testified that she had followed the Credit Union's ATM replenishment procedures and suggested that the missing funds were the result of mistakes made by other Credit Union employees. She further testified that she did not knowingly alter Credit Union records nor did she embezzle money from the ATMs.
At the conclusion of the trial, the jury convicted Jasper of a single count of embezzling funds in excess of $1000 from the Credit Union. Following the Guidelines as required prior to Booker, the Court sentenced Jasper to 37 months of imprisonment based on a total offense level of 21 and a criminal history category of 1. The total offense level of 21 was calculated as follows: (1) the base offense level for embezzlement in violation of 18 U.S.C. § 657 is four, see Sentencing Opinion at 252; (2) an eleven-level increase was warranted because the Court found an approximate total loss amount of $433,615, id. at 255; (3) a two-level enhancement was applied because the Court found that Jasper's conduct involved "more than minimal planning," id. at 256; (4) a two-level enhancement was applied because the Court found that Jasper abused a position of private trust, id. at 258; and (5) a two-level enhancement was applied because the Court found that Jasper intentionally gave false testimony to material facts at trial for the specific purpose of obstructing justice, id. at 262. In addition to the term of 37 months imprisonment, the Court imposed a three-year term of supervised release pursuant to 18 U.S.C. § 3583(b)(1), full restitution of the $433,615 lost pursuant to 18 U.S.C. §§ 3663A and 3664, and a special assessment of $100 pursuant to 18 U.S.C. § 3013. Id. at 250.
As the Court noted in its original sentencing opinion, the 1998 Guidelines were applied because they were more favorable to defendant than the 2003 Guidelines. See Jasper, 291 F. Supp. 2d at 252.
DISCUSSION
I. Sentencing and Re-Sentencing Under Booker and Crosby
In Booker, the Supreme Court marked the beginning of a new chapter in federal sentencing, finding that the mandatory application of the Guidelines violated the Sixth Amendment principles announced in Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000). See 125 S. Ct. at 757. The Court explained that, to ensure "the enforcement of the Sixth Amendment's guarantee of a jury trial in today's world," id. at 751, "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt," id. at 756. To remedy the violation, which was born from the mandatory and determinate nature of the prior sentencing regime, the Court excised two provisions of the Sentencing Reform Act, including 18 U.S.C. § 3553(b), which required sentencing judges to apply the Guidelines. Id. at 757. However, the Court cautioned that, even though the Guidelines are now only advisory, district courts must continue to consult them and take them into account at sentencing. Id. at 767.
Following Booker, the Second Circuit provided guidance to district courts with respect to sentencing and re-sentencing inUnited States v. Crosby, 397 F.3d 103 (2d Cir. 2005). While the Court set forth certain general instructions for sentencing judges to follow, it declined to fashion any particular "formulation," noting that "robotic incantations" are no more desirable now than when the Guidelines were mandatory. Id. at 113. The Court explained that "sentencing judges remain under a duty with respect to the Guidelines — not the previously imposed duty to apply the Guidelines, but the continuing duty to `consider' them, along with the other factors listed in section 3553(a)." Id. at 111. To satisfy this duty to consider the § 3553(a) factors, a sentencing judge normally should determine the applicable Guidelines range in the same manner as before Booker. Id. at 111-12. After consideration of the Guidelines range and the other § 3553(a) factors, the sentencing court then must decide whether to impose a Guidelines sentence, that is a sentence within the applicable Guidelines range or outside of the range if permissible departures apply, or a non-Guidelines sentence. Id. at 112. In this regard, the sentencing judge is "entitled to find all of the facts that the Guidelines make relevant to the determination of a Guidelines sentence and all of the facts relevant to the determination of a non-Guidelines sentence." Id. at 112; see also United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005) (holding that the district court's authority to resolve disputed facts by a preponderance of the evidence when calculating the Guidelines range endures post-Booker) (citing, inter alia, McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) (explaining that "decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as the guideline system has some flexibility in application")).
The factors listed in Section 3553(a) are as follows: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kind of sentence and the sentencing range provided for by the Sentencing Guidelines; (5) any pertinent policy statement issued by the Sentencing Commission; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. See 18 U.S.C. § 3353(a).
In cases such as this where the sentence was imposed prior toBooker but is not yet final, the Second Circuit remands to allow the sentencing judge to determine whether the original sentence would have been "nontrivially different" under the post-Booker sentencing regime. See Crosby, 397 F.3d at 118. If the district court decides that re-sentencing is not warranted, it should place its decision not to re-sentence on the record along with an appropriate explanation. Id. at 120. However, if the district court concludes that the original sentence would have been nontrivially different under the new regime, it should vacate the sentence and impose a new sentence with an appropriate explanation, in the presence of the defendant and in conformity with the Sentencing Reform Act, Booker, andCrosby, Id. In either case, the Second Circuit will review the sentence under a "reasonableness" standard, which is not limited to consideration of the length of the sentence. Id. at 114.
II. Re-Sentencing Is Warranted
Jasper argues that re-sentencing is appropriate because her term of imprisonment should not exceed 18 months. (See Letter from Roger B. Adler, Esq. to Hon. Peter K. Leisure of May 12, 2005 ("Def. Letter Brief") at 3.) She contends that a 37-month sentence is not reasonable under Booker because the Court's approximate total loss finding of $433,615 exceeds the amount found by the jury and the trio of sentencing enhancements for more than minimal planning, abuse of a position of trust, and obstruction of justice were erroneously applied. (Id. at 1-3.) The Government maintains that re-sentencing is not proper because the principles set forth in Booker and Crosby do not suggest that Jasper should receive a sentence different from the one originally imposed. (See Letter from Daniel A. Braun, Esq. to Hon. Peter K. Leisure of May 31, 2005 ("Gov't Response") at 9.) The Court will address each of Jasper's arguments in seriatim.
A. Total Loss
At sentencing, the Government and the Probation Office asserted that Jasper's sentence should be calculated based upon a total loss of $616,700. See Sentencing Opinion at 254. This amount included $433,615 allegedly taken by Jasper from September 1997 through May 15, 2000, as well as $183,085, which was apparently missing from the Credit Union's ATM accounts prior to 1997 and which the Government argued Jasper must have stolen. Id. The Court found that the $433,615 loss was "clearly supported" on the record by the testimony of Fenimore and documents relating to his investigation showing that Jasper under-reported the amounts she took from the ATMs on over 200 occasions by over $400,000. Id. However, the Court excluded the additional $183,085 from the reasonable estimate of total loss because the Government failed to make a sufficient showing that Jasper committed additional thefts prior to 1997. Id. at 255.
Although she acknowledged that $433,615 was an "adequate and reliable" basis for determining her offense level at the time of sentencing, id. at 253 n. 2, Jasper now contends that the Court's finding violates Booker and re-sentencing is required because the evidence presented at trial and considered by the jury established a loss amount well below $433,615. Jasper's reading of Booker is wrong. As discussed supra, in Crosby and then Gonzalez, the Second Circuit made it clear that, following Booker, the court, not the jury, continues to be the finder of facts relevant to sentencing. See Crosby, 397 F.3d at 112; Gonzalez, 407 F.3d at 125. Indeed, "a sentencing judge would . . . violate section 3553(a) by limiting consideration of the applicable Guidelines range to the facts found by the jury or admitted by the defendant, instead of considering the applicable Guidelines range, as required by subsection 3553(a)(4), based on the facts found by the court." Crosby, 397 F.3d at 115. Therefore, because Booker did not alter the fundamental nature of fact finding at sentencing, the Court's calculation of approximate total loss should stand absent compelling factors not previously considered by the Court. Jasper offers no reason why $433,615 is not a reasonable estimate of the total loss in this case. Accordingly, the Court rejects her argument that re-sentencing is required because the Court's loss finding exceeds the amount found by the jury.
B. More Than Minimal Planning
In challenging the Court's two-level enhancement for more than minimal planning, Jasper only repeats the argument she proffered at sentencing, namely that her crime was merely a crime of opportunity. (See Def. Letter Brief at 3.) Without more, the Court relies on its prior findings and its conclusion that "it strains credulity to interpret Jasper's conduct as a series of `opportunities taken.'" Sentencing Opinion at 256. While Jasper is correct that the Court is no longer required to apply this or any other enhancement post-Booker, see Def. Letter Brief at 2, the Court must consider the conduct underlying the enhancement as part of its determination of a reasonable sentence based upon the § 3553(a) factors.
C. Abuse of Position of Trust
As with the enhancement for more than minimal planning, Jasper simply restates her original position with respect to the two-level enhancement for abuse of position of trust. Specifically, she contends that the increase should not apply because her role in replenishing the ATMs resembled that of a teller more than a supervisor. (See Def. Letter Brief at 3.) The Court rejects that contention today for the same reasons it cited at sentencing. The evidence at trial established that Jasper was responsible for all aspects of the branch operation and that she exploited her position of authority to commit and conceal her crime. See Sentencing Opinion at 257. Moreover, Jasper offers no explanation why the Court should upset this finding. Thus, Jasper's abuse of her position of authority within the Credit Union was properly accounted for prior to Booker and remains a factor that the Court must consider following Booker.
D. Obstructing the Administration of Justice
As the Government recognized in its re-sentencing submission, the Court was reluctant to impose an enhancement for obstruction of justice in this case. (See Gov't Response at 7.) In fact, the Court stated expressly that it applied this enhancement "solely because it is required by the Guidelines." Sentencing Opinion at 262. The two-level enhancement for obstruction of justice increased Jasper's Guidelines range from 30-37 months to 37-46 months. While the Court remains cognizant of its finding that Jasper intentionally gave false testimony to material facts, the Court's favorable impression of her as a hardworking and well-respected member of her community, developed by her character witnesses and the Probation Office's report of her personal history, endures. See Sentencing Opinion at 262. The Court is no more convinced today than it was at the time of sentencing that Jasper's minimum sentence should be increased seven months and her maximum sentence increased nine months because of her perjurious testimony. As the Court explained at sentencing, "defendant's perjury in this case does not provide significant insight regarding her potential for rehabilitation or the degree of retribution and incapacitation warranted by her crime." Id. Indeed, it is this view that led the Court to impose a sentence at the bottom of the enhanced Guidelines range.
Though the Court must consider Jasper's perjury to the extent that it bears on the applicable Guidelines range and any other § 3553(a) factors, see Crosby, 397 F.3d at 111, it is no longer required to apply a specific enhancement to her sentence for this conduct. The Guidelines sentence of 37 months originally imposed by the Court continues to play a very important role followingBooker. To be sure, Booker does not "render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge." Id. at 113. The Guidelines sentence now serves, at least, as a marker on the path toward a reasonable sentence. However, it is no longer necessarily the ultimate destination on that path. In the post-Booker regime, district courts effectively must decide whether the applicable Guidelines range represents a reasonable sentence. If, after thorough consideration of the other § 3553(a) factors in light of the particular facts of the case, the sentencing judge determines that the Guidelines sentence is not reasonable, then a non-Guidelines sentence is appropriate. The Court finds that this is such a case.
For the reasons noted in the Sentencing Opinion and discussed above, in the Court's judgment, the two-level enhancement for obstruction of justice provided by the Guidelines is not warranted for defendant's perjurious testimony in this case. Accordingly, the Court is guided by the Guidelines range that does not include this two-level enhancement, namely 30-37 months. Moreover, it is telling that the Probation Office determined that a term of 33 months imprisonment would fulfill the sentencing objectives of just punishment and deterrence, and promoting respect for the law. (See United States District Court Southern District of New York Probation Office, Presentence Investigation Report at 24 (Sept. 10, 2003).) Finally, Jasper has not identified any compelling reason to warrant a further reduction in her sentence. Therefore, based on its thorough understanding of the case and defendant's background, the Court finds that 33 months is a reasonable sentence. Because the four-month difference between 33 months and the original sentence of 37 months is nontrivial, Jasper must be re-sentenced.
Jasper again raises the issue of her medical condition. (See Def. Letter Brief at 3.) However, she did not submit any evidence suggesting that the Court should revisit its original finding that her condition is not extraordinary and can be treated effectively by the Bureau of Prisons. (See Sentencing Opinion at 263.)
CONCLUSION
The remand Order from the Second Circuit instructs this Court to conduct further proceedings in conformity with Crosby. Pursuant to Crosby, the Court performed the foregoing analysis after obtaining the views of counsel and now decides that re-sentencing is warranted because the original sentence in this case would have been nontrivially different under the post-Booker regime. As a result, Jasper's sentence is vacated to the extent that it imposed a term of 37 months imprisonment, and she is hereby re-sentenced to a term of 33 months imprisonment. All other conditions of her original sentence remain in effect.
SO ORDERED.