Escolar Documentos
Profissional Documentos
Cultura Documentos
2002)
Following a jury trial, defendant Stephen Sabbeth was convicted in the United
States District Court for the Eastern District of New York (Denis R. Hurley,
Judge) of bankruptcy fraud, in violation of 18 U.S.C. 152; money laundering, in
violation of 18 U.S.C. 1956(a)(1)(A)(i); and other related offenses. On July 21,
2000, the District Court sentenced Sabbeth principally to 97 months of
imprisonment. We affirmed Sabbeth's conviction and sentence in an opinion
filed August 21, 2001. United States v. Sabbeth, 262 F.3d 207 (2d Cir. 2001).
In affirming Sabbeth's sentence, we concluded that the District Court properly
refused to group Sabbeth's money laundering and fraud convictions pursuant to
Section 3D1.2(b) of the United States Sentencing Guidelines. Id. at 221.
Sabbeth first petitioned for reconsideration on September 4, 2001, on grounds
unrelated to the motion now before us, and on October 16, 2001, we denied that
motion for reconsideration by summary order.
Sabbeth now presents a second motion for reconsideration based upon a recent
amendment to the Sentencing Guidelines that became effective on November 1,
2001. See U.S. Sentencing Guidelines Manual ("U.S.S.G.") supp. to app. C,
amend. 634 (2001), at 229-236; see also U.S.S.G. 2S1.1 (2001). Sabbeth argues
that the amendment "clarifies" that fraud and money-laundering offenses are to
be "grouped" under the Sentencing Guidelines, and he asserts, accordingly, that
the amendment should be applied retroactively to his sentence. At Sabbeth's
sentencing, the District Court, after refusing to group the fraud and moneylaundering offenses, found that Sabbeth's Total Offense Level was 30. In light
of Sabbeth's Criminal History Category of I, the District Court considered the
prescribed sentencing range of 97-121 months and sentenced Sabbeth primarily
to 97 months of imprisonment.1 Sabbeth asserts, based upon the recent
amendment to the Sentencing Guidelines, that his fraud and money-laundering
offenses should be grouped, resulting in a Total Offense Level of 28 and a
sentencing range of 78-97 months of imprisonment. Accordingly, he argues that
this Court should vacate the judgment of the District Court and remand the
cause for resentencing.2 For the reasons stated below, we find no merit in any
of Sabbeth's arguments and therefore deny Sabbeth's motion.
I.
"A defendant sentenced under one version of the Guidelines may . . . be given
the benefit of a later revision if the revision represents not a substantive change
but merely a clarification of the [United States] Sentencing Commission's prior
intent." United States v. Kim, 193 F.3d 567, 578 (2d Cir. 1999); see also United
States v. Kirkham, 195 F.3d 126, 131 (2d Cir. 1999) (observing that "this Court
is required to apply amendments to the Guidelines that clarify their application
on direct review"). Where the Sentencing Commission "states its intent in
making the change," we give "considerable deference" to its characterization.
Kim, 193 F.3d at 578.
II.
4
The Sentencing Commission amended Section 2S1.1 and deleted Section 2S1.2
of the Sentencing Guidelines effective November 1, 2001, after Sabbeth's
sentence had been imposed and affirmed. See U.S.S.G. supp. to app. C, amend.
634 (2001), at 229-236; see also U.S.S.G. 2S1.1, 2S1.2 (2001). Amendment
634 in part introduced Application Note 6 of Section 2S1.1, which provides the
following:
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Second, the purpose and effect of the revision of Section 2S1.1 demonstrate
that Application Note 6 is the result of the substantive revision of the moneylaundering guidelines and not simply a separate, independent clarification of the
existing law. According to the Sentencing Commission, the purpose in
completely revising Section 2S1.1 and 2S1.2, including the promulgation of
Application Note 6, was "to promote proportionality by providing increased
penalties for defendants who launder funds derived from more serious
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In sum, after considering the language of the amendment, its effect and
purpose, and the consistency or inconsistency of the amendment with the
previous version of the Sentencing Guidelines, we conclude that the changes at
issue here are substantive and cannot simply be characterized as "clarifying."
III.
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Notes:
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