United States v. Desnoyers

11-5194-cr
United States v. Desnoyers
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2012 5
6
7
(Argued: December 17, 2012 Decided: February 14, 2013) 8
9
Docket No. 11-5194-cr 10
11
- - - - - - - - - - - - - - - - - - - -x 12
13
UNITED STATES OF AMERICA, 14
15
Plaintiff-Appellant, 16
17
- v.- 18
19
MARK DESNOYERS, 20
21
Defendant-Appellee. 22
23
- - - - - - - - - - - - - - - - - - - -x 24
25
Before: JACOBS, Chief Judge, CALABRESI, and 26
LEVAL, Circuit Judges. 27
28
The United States appeals from a judgment entered in 29
the United States District Court for the Northern District 30
of New York (Hurd, J.) re-sentencing Mark Desnoyers to five 31
years’ probation and assessing $45,398 in restitution. 32
Desnoyers was convicted of offenses arising from his 33
malfeasance as an air monitor for asbestos abatement 34
projects in and around Plattsburgh, New York. Desnoyers 35
was initially sentenced to five years’ probation (and 36

-- 1 of 29 --

restitution of $34,960) after the district court granted his 1
motion under Rule 29 to dismiss the conspiracy charge (Count 2
I). On appeal, we reinstated the conviction for Count I and 3
remanded for re-sentencing. For the following reasons, we 4
conclude that the sentence was procedurally unreasonable; we 5
therefore vacate and again remand for re-sentencing. 6
RAJIT S. DOSANJH, (Craig A. 7
Benedict, on brief), for Richard 8
S. Hartunian, United States 9
Attorney for the Northern 10
District of New York, Syracuse 11
New York, for Appellant, United 12
States of America. 13
14
JOHN B. CASEY, Dreyer Boyajian 15
LLP, Albany, New York, for 16
Appellee, Mark Desnoyers. 17
18
DENNIS JACOBS, Chief Judge: 19
20
The United States takes this appeal from the sentence 21
imposed following our reinstatement of a count of conviction 22
dismissed by the district court under Federal Rule of 23
Criminal Procedure 29. The re-sentencing has resulted in 24
imposition of the same term of probation and an increase in 25
restitution of about $10,000. 26
Desnoyers was convicted by a jury in the United States 27
District Court for the Northern District of New York (Hurd, 28
J.) of offenses arising from his malfeasance as an air 29
2

-- 2 of 29 --

monitor for asbestos abatement projects in and around 1
Plattsburgh, New York. The grant of Desnoyers’s post-trial 2
motion to vacate Count I--the conspiracy charge--left four 3
substantive violations. 4
On the government’s initial appeal, we reinstated the 5
jury verdict, and remanded for re-sentencing. United States 6
v. Desnoyers (“Desnoyers I”), 637 F.3d 105, 112 (2d Cir. 7
2011). 8
On remand, the district court imposed the same five- 9
year term of probation and increased the restitution amount 10
to $45,398. The government now attacks the procedural and 11
substantive reasonableness of the sentence, arguing mainly 12
that the district court improperly excluded new evidence 13
that was not submitted at the initial sentencing. The 14
government also contests the restitution calculation. 15
For the reasons that follow, we conclude that the 16
sentence was procedurally unreasonable; we therefore vacate 17
and remand to the district court for re-sentencing. 18
19
BACKGROUND 20
Desnoyers’s conviction arose out of his work as an air 21
monitor on ten asbestos removal projects in 2005 and 2006. 22
3

-- 3 of 29 --

An air monitor conducts air sampling to ensure that the 1
asbestos was removed properly and that no asbestos fibers 2
remain suspended in the air. See N.Y.S. Indus. Code Rule 3
56-17.8. The conspiracy count (Count I) that was dismissed 4
post-trial and reinstated after appeal arises from eight 5
asbestos removal projects that Desnoyers conducted together 6
with his codefendants: John Wood; one of Wood’s associates, 7
Curtis Collins; and one of Desnoyers’s employees, Tom 8
Marble. Wood, Collins, and Marble all testified at trial 9
that abatement at these jobs was performed improperly: The 10
asbestos was ripped out haphazardly causing asbestos fibers 11
to fill the air; the debris was carried out in plastic bags 12
covered in asbestos dust; and chunks of asbestos debris were 13
left in the work area. Marble testified that he never saw 14
Desnoyers take air samples, and Wood testified that 15
Desnoyers assured Wood that the air samples “w[ould] come 16
back clean” immediately after the work concluded. Trial Tr. 17
316, Sept. 10, 2008. The air samples did, in fact, “come 18
back clean” despite large amounts of loose asbestos 19
littering the properties. 20
Two other counts of conviction arise from the same “rip 21
and run” pattern: a violation of the Clean Air Act (Count V) 22
4

-- 4 of 29 --

at a commercial building in Oneonta, New York, the so-called 1
“Da’Vida” project; mail fraud (Count VI) in connection with 2
a project at the High Peaks Hospice (“Hospice”) in Port 3
Henry, New York; and making false statements to the 4
Environmental Protection Agency (“EPA”) (Counts XII, XIII, 5
and XIV) concerning two of the projects giving rise to the 6
conspiracy count. 7
The jury verdict, rendered on September 19, 2008, 8
convicted Desnoyers on Counts I, V, VI, XII, and XIII. 1 The 9
district court granted Desnoyers’ Rule 29 motion for a 10
judgment of acquittal as to Count I only. United States v. 11
Desnoyers, No. 06-CR-494, 2009 WL 1748730 (N.D.N.Y. June 19, 12
2009). 13
At sentencing on December 18, 2009, the district court 14
calculated Desnoyers’s offense level using the fraud section 15
of the United States Sentencing Guidelines Manual 16
(“U.S.S.G.” or “Guidelines”), U.S.S.G. § 2B1.1. The court 17
calculated the loss amounts under U.S.S.G. § 2B1.1(b) 2 as 18
$34,960, which was the contract value of the Hospice and 19
1 The jury acquitted Desnoyers on Count XIV.
2 Section 2B1.1 provides that the sentencing range
be determined in part by the amount of loss that a defendant
causes.
5

-- 5 of 29 --

Da’Vida projects plus the estimated clean-up cost for the 1
Hospice; the Da’Vida victim provided no clean-up estimate. 2
This yielded a six-level increase in the base offense level. 3
U.S.S.G. § 2B1.1(b)(1)(C). 4
The court accepted the Probation Office’s 5
recommendations for sentencing enhancements except for a 6
two-level enhancement under U.S.S.G. § 3B1.1(c) for 7
Desnoyers’s role as an organizer of conduct involving fewer 8
than five participants. With a total offense level of 9
twenty-one and a criminal history category of I, Desnoyers 10
was subject to a Guidelines range of 37 to 46 months’ 11
imprisonment. 12
A non-Guidelines sentence (five years’ probation and 13
$34,960 restitution) was imposed on the grounds that 14
Desnoyers was a “novice in the asbestos removal business,” 15
that he had been “duped and misled” by Wood and Collins, 16
Sentencing Tr. 26, Dec. 18, 2009, that he was doing 17
creditable work at the New York State Department of Mental 18
Retardation and Developmental Disabilities helping disabled 19
people get services, and that he had performed similar work 20
at the Advocacy Resource Center. 21
6

-- 6 of 29 --

On the government’s appeal, we reversed the grant of 1
the Rule 29 motion and remanded with instructions “to 2
reinstate the jury verdict, enter a judgment of conviction 3
on the conspiracy count, and resentence Desnoyers 4
accordingly.” Desnoyers I, 637 F.3d at 112. 5
Before re-sentencing, the government provided the 6
Probation Office with loss amounts for the victims of the 7
eight projects listed in the reinstated Count I. These loss 8
amounts included victims’ payments for the improper asbestos 9
removal and clean-up cost estimates. Most of this 10
information had been provided to the district court for the 11
November 2009 sentencing of Wood, who was also convicted on 12
Count I. However, one estimate was new: One victim, Nancy 13
Page, provided a bid for $19,800. The government also 14
provided new information relevant to the loss amounts for 15
Counts V and VI: The Da’Vida victim provided clean-up bids 16
totaling $43,786, and High Peaks Hospice increased its 17
clean-up total by $2,500. All of this new information 18
submitted by the government would have brought Desnoyers’s 19
total loss amount to $213,732.23. 20
The government also submitted new affidavits from 21
people who knew Desnoyers from the Advocacy Resource Center 22
7

-- 7 of 29 --

and had contacted the government after hearing news reports 1
of Desnoyers’s first sentence: Lester Parker and Theresa 2
Garrow. The Parker and Garrow affidavits--which referred to 3
events that took place both before and after the original 4
sentencing–-called into question Desnoyers’s account of his 5
work at the Advocacy Resource Center. The government also 6
submitted a “joint letter” dated September 16, 2011, sent by 7
employees of the Advocacy Resource Center to the director of 8
Sunmount Developmental Disability Services Organization, 9
where Desnoyers worked as a Medicaid Services Coordinator, 10
detailing problems they had with Desnoyers. The joint 11
letter referred only to conduct that took place after the 12
first sentencing. At a telephone conference on October 11, 13
2011, the district court ruled that it would not consider 14
evidence of events that took place before the initial 15
sentencing because there was insufficient justification for 16
the government’s failure to introduce that evidence at the 17
first sentencing. Telephone Conf. Tr. 14, Oct. 11, 2011. 18
Evidently confused about the import of that ruling, the 19
government did not submit these documents at re-sentencing. 20
Desnoyers was re-sentenced on October 28, 2011. First, 21
the loss amounts were recalculated, taking into account the 22
8

-- 8 of 29 --

reinstated conviction for the eight projects that were the 1
subject of Count I. However, the government’s suggested 2
loss amounts were not adopted. Instead, the court decided 3
that Desnoyers’s loss amount for Count I “should be no more 4
than the [restitution] amount ordered for co-defendant John 5
Wood,” which was $111,259.83. Re-sentencing Tr. 8, Oct. 28, 6
2011. The court refused, without further explanation, to 7
consider the clean-up estimate that Ms. Page submitted 8
subsequent to Wood’s sentencing. After making several other 9
rulings on the loss amount that are not at issue on appeal, 4
10
the district court calculated the loss amount for Count I as 11
$80,245.83. 12
Next, the district court “decline[d] to consider 13
additional expense claims, clean-up quotes, submitted by 14
victims with regards to [Counts V and VI] that had not been 15
submitted by the government prior to [Desnoyers’s] original 16
4 Those rulings were as follows: First the district
court said that the proposed loss amount included a bid for
clean-up services for the Alexander residence project that
was “the highest of multiple estimates related to these
expenses.” Id. Second, the district court refused to
include $3,175 in “payments for background air sampling,
pre-abatement air sampling, and environmental air sampling”
because that work is required prior to any asbestos removal
project--whether legitimate or not. Id. at 10. Third, the
district court refused to consider a loss of $3,600 from one
project because the building was demolished after the
asbestos was removed. Id.
9

-- 9 of 29 --

sentencing.” Id. at 10-11. The resulting total loss amount 1
on all counts was $115,205.83. Again, the court applied all 2
the recommended enhancements except as to Desnoyers’s role 3
as an organizer. 5 This resulted in a total offense level of 4
25 and a Guidelines range of 57 to 71 months’ imprisonment. 5
Despite a Guidelines range that was substantially 6
higher than the one computed at the original sentencing, the 7
district court sentenced Desnoyers to the same five-year 8
term of probation. The district court found that 9
Desnoyers’s “conduct is unchanged from that which was 10
evaluated and considered at the time of the original 11
sentence,” and that “[i]n the nearly two years since that 12
sentence, the defendant has been in full compliance with the 13
terms and conditions of probation.” Id. at 21. The court 14
also considered the factors under 18 U.S.C. § 3553(a), 15
relying on “all of the statements that [it] made on the 16
record at the original sentence.” Id. 17
As for restitution, the district court began with the 18
$34,960 figure from Desnoyers’s original sentence, finding 19
that this amount was appropriate for the projects underlying 20
Counts V and VI--without, however, discussing the upward 21
5 The district court did not explain this decision
at the re-sentencing hearing.
10

-- 10 of 29 --

revisions submitted by the government for those projects. 1
With respect to Count I, the conspiracy count, the court 2
included only the $4,275 that Desnoyers personally received 3
for those projects, reasoning that Desnoyers was “less 4
culpable than his co-defendants and received just a small 5
percentage of the proceeds.” Id. at 11. Moreover, the 6
court refused to include any amount received by Desnoyers 7
for background and pre-abatement monitoring. Similarly, the 8
court declined to hold Desnoyers jointly and severally 9
liable for the clean-up costs related to Count I--totaling 10
$69,476--concluding that Desnoyers was responsible only “for 11
his proportionate liability” of those costs, which the court 12
calculated as nine percent, or $6,163, 6 “based on his 13
limited role and his receipt of a limited percentage of the 14
proceeds.” Id. at 12-13. Without explanation, Ms. Page’s 15
clean-up costs, which had been excluded from the loss 16
calculation, were included in the calculation of 17
restitution. 18
The government now appeals the sentence, arguing that 19
it is both procedurally and substantively unreasonable. 20
21
6 Nine percent of $69,476 is actually $6,252.84.
11

-- 11 of 29 --

DISCUSSION 1
On appeal, the government first challenges the 2
Guidelines range on the grounds that the district court (1) 3
miscalculated the loss amount by refusing to consider Ms. 4
Page’s clean-up costs and the new information concerning the 5
losses suffered in Counts V and VI; and (2) refused to apply 6
the enhancement for being an organizer of the criminal 7
activity. Second, the government contends that it should 8
have been allowed to submit newly discovered character 9
evidence. Third, the government argues that the non- 10
Guidelines sentence was substantively unreasonable. 11
Finally, the government argues that the restitution 12
calculation (1) failed to consider the new submissions for 13
Counts V and VI; (2) should have included payments made for 14
pre-abatement air sampling; and (3) should have imposed 15
joint and several liability for all the Count I losses. 16
The government’s arguments challenge the procedural and 17
substantive reasonableness of Desnoyers’s sentence. 18
Procedural reasonableness is reviewed for abuse of 19
discretion. United States v. Cavera, 550 F.3d 180, 187 (2d 20
Cir. 2008). 21
A district court commits procedural error where it 22
fails to calculate the Guidelines range . . . , 23
12

-- 12 of 29 --

makes a mistake in its Guidelines calculation, or 1
treats the Guidelines as mandatory. It also errs 2
procedurally if it does not consider the § 3553(a) 3
factors, or rests its sentence on a clearly 4
erroneous finding of fact. Moreover, a district 5
court errs if it fails adequately to explain its 6
chosen sentence, and must include “an explanation 7
for any deviation from the Guidelines range.” 8
9
Id. at 190 (citation omitted) (quoting Gall v. United 10
States, 552 U.S. 38, 51 (2007)). “A sentencing court’s 11
legal application of the Guidelines is reviewed de novo.” 12
United States v. Cossey, 632 F.3d 82, 86 (2d. Cir. 2011). 13
Substantive reasonableness is also reviewed for abuse 14
of discretion, Gall, 552 U.S. at 51, and is judged in light 15
of the factors listed in 18 U.S.C. § 3553(a)(2), Cavera, 550 16
F.3d at 195. In considering substantive reasonableness, 17
this Court “take[s] into account the totality of the 18
circumstances, giving due deference to the sentencing 19
judge’s exercise of discretion, and bearing in mind the 20
institutional advantages of district courts.” Cavera, 550 21
F.3d at 190. Given the range of considerations, “the duty 22
of a reviewing court is not to identify the ‘right’ sentence 23
but, giving due deference to the district court’s exercise 24
of judgment, to determine whether the sentence imposed falls 25
within the broad range that can be considered reasonable 26
under the totality of the circumstances.” United States v. 27
Jones, 531 F.3d 163, 174 (2d Cir. 2008). 28
13

-- 13 of 29 --

1
I 2
As to the Guidelines calculation, the government argues 3
that the loss amount was miscalculated and that the 4
organizer enhancement should have been applied. 5
A 6
The government alleges two mistakes in the district 7
court’s loss amount calculation: failure to include the 8
Nancy Page clean-up estimate and failure to consider new 9
loss estimates for Counts V and VI. We review the district 10
court’s factual findings with respect to the loss amount 11
under U.S.S.G. § 2B1.1 for clear error and its conclusions 12
of law de novo. See United States v. Carboni, 204 F.3d 39, 13
46 (2d Cir. 2000). 14
1 15
At re-sentencing, Nancy Page’s clean-up costs (the 16
“Page Estimate”) were omitted–-without explanation--from the 17
loss amount for Desnoyers’s reinstated conspiracy 18
conviction. Ms. Page had submitted this estimate after 19
Desnoyers’s codefendant Wood was sentenced, so the court did 20
not consider it when it previously calculated the losses for 21
the projects giving rise to Count I. 22
14

-- 14 of 29 --

The district court’s failure to include the Page 1
Estimate was clear error. The Guidelines require 2
calculation of the loss “based on available information, 3
taking into account . . . the cost of repairs to damaged 4
property.” U.S.S.G. § 2B1.1 cmt 3(C)(iii). While the 5
Guidelines require only a “reasonable estimate of the loss,” 6
the district court’s estimate was not reasonable because no 7
explanation was given for omitting the Page Estimate. 8
Desnoyers argues that it was proper for the court to 9
refuse to consider the Page Estimate because it was not 10
available at the sentencing of co-defendant Wood. We reject 11
this argument. Since Wood was sentenced under the 12
environmental section of the Guidelines, U.S.S.G. § 2Q1.2, 13
not (as Desnoyer was) under the fraud section, there was no 14
“loss amount” calculation for Wood. The starting point for 15
Desnoyers’s loss calculation was the amount of Wood’s 16
restitution, which played no role in the length of Wood’s 17
sentence. The calculation for Wood’s sentencing is 18
therefore inapposite. 19
We vacate the Count I loss amount calculation and 20
remand with instructions for the district court to consider 21
the Page Estimate in calculating the loss amount for Count 22
I. 23
15

-- 15 of 29 --

2 1
At re-sentencing, the district court refused to 2
consider new clean-up cost estimates for the Da’Vida and 3
Hospice projects that had not been submitted at the original 4
sentencing. The district court did not explain its refusal. 5
“[W]here the government knew of its obligation to 6
present evidence [at the original sentencing] and failed to 7
do so, it may not enter new evidence on remand,” absent some 8
justification for failing to present the evidence in the 9
first instance. United States v. Archer, 671 F.3d 149, 168- 10
69 (2d Cir. 2011). The government offered no justification 11
for failing to submit the full loss amounts for the Da’Vida 12
and Hospice projects, which were at issue at the initial 13
sentencing. Under Archer, therefore, the district court did 14
not err in refusing to consider these new estimates at re- 15
sentencing. 16
The government argues that the district court’s refusal 17
was error because it was required to re-sentence Desnoyers 18
de novo. Typically, the defendant is entitled to de novo 19
sentencing when the court of appeals reverses a conviction, 20
because a change in the “constellation of offenses of 21
conviction” alters the “factual mosaic related to those 22
offenses.” United States v. Rigas, 583 F.3d 108, 115 (2d 23
Cir. 2009) (internal quotation marks omitted). 24
16

-- 16 of 29 --

Thus, de novo sentencing was required in Rigas. The 1
two defendants had been initially sentenced to fifteen and 2
twenty years’ imprisonment (respectively) on each of two 3
counts of bank fraud, to run concurrently. Rigas, 583 F.3d 4
at 112. After one of the bank fraud counts was reversed on 5
appeal, the district court “held that it was not required to 6
resentence defendants de novo because [the overturned bank 7
fraud conviction] was a small part of the overall conviction 8
and ran concurrently with [the other bank fraud conviction], 9
which this Court upheld.” 7 Id. at 113. Rigas did not 10
involve an effort to expand the record with evidence that 11
could have been submitted at the original sentencing. 12
Rather, the issue was whether the district court erred in 13
concluding that the reversal of one count did not require 14
reconsideration of the overall sentence. Id. 15
Rigas prohibits a district court from automatically 16
imposing the same sentence on remand after one or more 17
counts are reversed (or reinstated) on appeal. Here, 18
however, the district court considered the reinstated 19
7 The sentencing court in Rigas made an alternative
holding that, even if it sentenced the defendants de novo,
the sentence would be the same. Id. The Rigas court dealt
with that holding in a different part of its opinion that is
not relevant to this appeal.
17

-- 17 of 29 --

conspiracy count, calculated a new Guidelines range, and 1
then, exercising discretion, decided to impose the same 2
sentence as it had at the initial sentencing. The refusal 3
to consider the newly submitted loss amounts for Counts V 4
and VI did not violate the duty to re-sentence de novo.8
5
We therefore conclude that the district court acted 6
within its discretion in refusing to consider the newly 7
submitted loss amounts for the projects underlying Counts V 8
and VI. 9
8 The government also cites United States v. Bryce,
287 F.3d 249 (2d Cir. 2002). In Bryce, the defendant
successfully challenged one of his convictions and the case
was remanded for re-sentencing. Id. at 252. While the
appeal was pending, he was indicted and later acquitted for
murdering someone who was supposed to testify at his first
trial. Id. The district court resentenced the defendant de
novo, finding that he had murdered the witness and imposing
a substantially higher sentence. Id. The Second Circuit
affirmed, holding that “we have adopted a mandate rule that
permits, if it does not require, de novo sentencing unless
the mandate specifically limits the scope of the
resentencing.” Id. at 253. Clearly, Bryce is not on point
because it does not require the court to consider new
evidence, but simply permitted it in that case. Moreover,
in Bryce, the main witness for the murder trial did not step
forward until after the original sentencing, justifying the
government’s failure to raise the issue in the first
instance. Id. at 254.
18

-- 18 of 29 --

B 1
The government argues that Desnoyers was subject to a 2
Guidelines enhancement under U.S.S.G. § 3B1.1(a) for being 3
an organizer of the criminal activity. We review a ruling 4
on the organizer enhancement de novo; the underlying fact- 5
finding is reviewed for clear error. United States v. 6
Paccione, 202 F.3d. 622, 624 (2d Cir. 2000). 7
At the original sentencing, the district court refused 8
to apply the organizer enhancement because Desnoyers had 9
been “convinced to take part in this criminal endeavor by 10
more criminally predisposed individuals.” Sentencing Tr. 7, 11
Dec. 18, 2009. At re-sentencing, however, the district 12
court never mentioned the organizer enhancement 13
notwithstanding the reinstatement of a count of conviction 14
that involved eight additional projects. Although the 15
district court stated at re-sentencing that it “adopt[ed] 16
all of the statements that [it] made on the record at the 17
original sentence,” Re-sentencing Tr. 21, Oct. 28, 2011, it 18
did so in the context of its consideration of the factors 19
contained in 18 U.S.C. § 3553(a), not the Guidelines 20
enhancements, which were discussed earlier in the hearing. 21
22
19

-- 19 of 29 --

In refusing to consider the organizer enhancement at 1
re-sentencing, the district court made the error made in 2
Rigas: It failed to consider that the reinstatement of Count 3
I had changed the “factual mosaic related to th[e] offenses 4
[of conviction]” such that it was required to analyze the 5
organizer enhancement anew. 583 F.3d at 118 (internal 6
quotation marks omitted). We remand with instructions for 7
the district court to consider the organizer enhancement in 8
light of the reinstatement of Count I. 9
10
II 11
The government argues that the district court violated 12
18 U.S.C. § 3661 when it refused to consider character 13
evidence that was not submitted prior to the initial 14
sentencing: the Parker and Garrow affidavits and the joint 15
letter. 16
The statute provides that “[n]o limitation shall be 17
placed on the information concerning the background, 18
character, and conduct of a person convicted of an offense 19
which a court of the United States may receive and consider 20
for the purpose of imposing an appropriate sentence.” Id.; 21
see also U.S.S.G. § 1B1.4. The word “may” confers 22
20

-- 20 of 29 --

discretion in deciding what character evidence to consider. 1
As explained supra, Archer holds that a district court 2
should not consider evidence at re-sentencing that could 3
have been submitted at the original sentencing absent 4
justification. 671 F.3d at 168-69. The district court 5
heard the government’s argument that it would have been 6
extremely difficult for it to have found out about Parker, 7
who did not come forward until after the initial sentencing, 8
but nonetheless exercised its discretion in concluding that 9
the government’s proffered justification was insufficient. 10
The district court acted within the bounds of its 11
discretion. 12
The government asserts that the district court’s ruling 13
at the October 11, 2011, telephone conference was 14
inconsistent with the written Order issued the following 15
day. Both directives allowed that “[p]re-sentencing 16
submissions may refer to the defendant’s acts or relevant 17
events occurring subsequent to December 18, 2009.” Order, 18
Oct. 12, 2011. However, at the conference, the district 19
court stated that “these affidavits and the joint letter 20
refer to events mainly before the original sentence.” 21
Telephone Conf. Tr. 12, Oct. 11, 2011. This was partly 22
21

-- 21 of 29 --

incorrect--the Joint Letter referred only to events that 1
occurred after the original sentencing. The government 2
moved for reconsideration, hoping to clarify whether it 3
could submit the Joint Letter and affidavits if it redacted 4
the affidavits to remove references to events that took 5
place prior to the initial sentencing; but the district 6
court denied it, referring to the quoted language from the 7
October 12, 2011, Order. The government withdrew the 8
character evidence lest it violate the Order. Although the 9
district court might have been clearer in its ruling at the 10
telephone conference, the Order is itself clear and the 11
government should have submitted the Joint Letter and 12
redacted affidavits. The government is arguing that the 13
district court should have considered evidence that the 14
government never submitted. We affirm on this point. 15
16
III 17
We have our doubts as to the substantive reasonableness 18
of a sentence of probation, especially given that the 19
offenses of conviction exposed many persons to prolonged 20
risk of insidious and fatal disease. That the district 21
court did not amend its sentence after we reinstated a 22
22

-- 22 of 29 --

conspiracy count based on eight additional abatement 1
projects heightens our discomfort. 2
However, we decline to rule on the issue of substantive 3
reasonableness at this time because the sentence contains 4
procedural error. See Gall v. United Sates, 552 U.S. 38, 5
51 (2007) (“Assuming that the district court’s sentencing 6
decision is procedurally sound, the appellate court should 7
then consider the substantive reasonableness of the 8
sentence.” (emphasis added)); United States v. Cavera, 550 9
F.3d 180, 189-90 (2d Cir. 2008) (“This degree of deference 10
[for substantive review] is only warranted, however, once we 11
are satisfied that the district court complied with the 12
Sentencing Reform Act’s procedural requirements.”). 13
We therefore leave it to the district court to correct 14
its procedural errors and consider Desnoyers’s sentence 15
again before we rule on substantive reasonableness in any 16
further appeal. 17
18
IV 19
The Mandatory Victims Restitution Act (“MVRA”) 20
requires: “[T]he court shall order restitution to each 21
victim in the full amount of each victim’s losses as 22
23

-- 23 of 29 --

determined by the court.” 18 U.S.C. § 3664(f)(1)(A). We 1
review awards of restitution for abuse of discretion, United 2
States v. Lucien, 347 F.3d 45, 52 (2d Cir. 2003); but a 3
district court lacks discretion under the MVRA “to deny an 4
award of restitution or to award restitution for anything 5
less than the full amount of the victim’s losses,” United 6
States v. Walker, 353 F.3d 130, 131 (2d Cir. 2003). 7
A 8
The government argues that the district court erred by 9
refusing to consider newly submitted clean-up costs for the 10
projects underlying Counts V and VI when it calculated the 11
restitution amount. 12
Under 18 U.S.C. § 3664(d)(5), “[i]f the victim 13
subsequently discovers further losses, the victim shall have 14
60 days after discovery of those losses in which to petition 15
the court for an amended restitution order. Such order may 16
be granted only upon a showing of good cause for the failure 17
to include such losses in the initial claim for 18
restitutionary relief.” The government never demonstrated 19
that the victims in Counts V or VI petitioned the court 20
within sixty days after discovering the additional losses; 21
nor did the government demonstrate good cause for failing to 22
24

-- 24 of 29 --

include the losses at the first sentence. We therefore 1
affirm the restitution calculation for Counts V and VI. 2
B 3
In New York, the person conducting air monitoring for 4
certain asbestos abatement projects is required to take 5
samples before abatement begins (“pre-abatement sampling”), 6
after abatement is complete (“post-abatement sampling”), 7
and, for some projects, while abatement is taking place (so- 8
called “durings”). See N.Y. Indus. Code Rule 56-17. In 9
calculating the restitution amount, the district court 10
refused to include the payments victims made for “pre- 11
abatement” samplings and “durings,” reasoning that these 12
“were services unrelated to the offense of conviction, final 13
clearances.”9 Re-sentencing Tr. 12, Oct. 28, 2011. 14
Although there was no finding that the pre-abatement 15
sampling or durings were themselves conducted improperly, 16
they were an integral part of the overall scheme. An 17
analogous situation was recently presented in United States 18
v. Paul, 634 F.3d 668 (2d Cir. 2011), in which the defendant 19
9 The government does not argue that these payments
should have been included in the Guidelines’ loss amount
calculation, as opposed to the restitution calculation. We
therefore limit our discussion of pre-abatement sampling and
durings to the restitution issue.
25

-- 25 of 29 --

committed securities fraud by artificially raising a stock 1
price through trades among his multiple accounts. Id. at 2
670. To finance the scheme, he obtained margin loans from 3
banks secured by the artificially valuable stock. Id. Paul 4
argued that the district court should not have imposed 5
restitution in favor of the banks because they were not 6
victims of the securities fraud, the only offense of 7
conviction. Id. at 677. We disagreed and concluded that 8
the banks were victims because they “would not have made the 9
loans to Paul had they known that the collateral for the 10
loans was the stock he manipulated.” Id. 11
Paul’s broad view of restitution controls. The pre- 12
abatement sampling was akin to the margin loans in Paul; 13
both were necessary to the overall scheme even though 14
neither was integral to the offense of conviction. The 15
victims here would not have paid for the pre-abatement 16
sampling had they known that the asbestos removal would be 17
fraudulent, just as the banks in Paul would not have made 18
loans if the value of the securities had not been 19
artificially raised. 20
We therefore vacate and remand with instructions for 21
the district court to include in its restitution calculation 22
26

-- 26 of 29 --

all income received by Desnoyers for his role in the scheme, 1
including that for pre-abatement sampling and durings. 2
C 3
Wood was required to pay restitution in the amount of 4
$854,166.06 with the proviso that Wood “shall be jointly and 5
severally liable for $250,302.22 of this restitution with 6
co-defendant, Mark Desnoyers.” Wood Sentencing Tr. 19, Feb. 7
6, 2009. The latter amount related only to the eight 8
projects in Count I (Wood was not involved in the projects 9
underlying Counts V and VI). However, at Desnoyers’s re- 10
sentencing, Judge Hurd imposed a restitution amount for the 11
contract values of the Count I projects equal only to the 12
amount Desnoyers received for his work on those projects 13
($4,275), not the total contract value of all of the Count I 14
projects. Re-sentencing Tr. 11-12, Oct. 28, 2011. 15
Moreover, the court concluded that Desnoyers was personally 16
responsible for only “nine percent” of the Count I clean-up 17
costs--which it calculated as $6,163 10 --not the total clean- 18
up costs of $69,476. Id. at 12-13. 19
While the district court has discretion to decide 20
whether defendants should be jointly and severally liable 21
10 Nine percent of $69,476 is $6,252.84.
27

-- 27 of 29 --

for restitution, see United States v. Amato, 540 F.3d 153, 1
163 (2d Cir. 2008), the district court did not explain how 2
it arrived at the nine percent figure, or why it held that 3
Desnoyers would be jointly and severally liable for 4
$250,302.22 at Wood’s sentencing but abandoned this position 5
at Desnoyers’s re-sentencing. The district court therefore 6
abused its discretion in calculating the restitution amount 7
for the projects in Count I. We vacate and remand for the 8
district court to calculate the restitution amount for Count 9
I with a full explanation for its reasoning. 10
11
V 12
At oral argument, we asked the parties for letter 13
briefs on the question whether we should assign the case to 14
a different district judge on remand, as we have sometimes 15
done. E.g., United States v. Schwartz, 500 F.2d 1350, 1352 16
(2d Cir. 1974). We decline to take that extraordinary step 17
before affording the district court an opportunity to 18
formulate a sentence after correction of procedural errors. 19
20
28

-- 28 of 29 --

CONCLUSION 1
For the foregoing reasons, we AFFIRM in part and VACATE 2
and REMAND in part. We AFFIRM the following: (1) the 3
district court’s refusal to consider newly submitted 4
evidence relating to Counts V and VI; and (2) the district 5
court’s refusal to consider the newly submitted character 6
evidence. We VACATE the district court’s judgment on the 7
following issues and REMAND for re-sentencing in accordance 8
with this opinion: (1) the district court’s refusal to 9
include the Page Estimate in the loss amount for Count I; 10
(2) the district court’s failure to consider the organizer 11
enhancement at re-sentencing; (3) the district court’s 12
refusal to include payments for pre-abatement sampling and 13
durings in its restitution calculation; and (4) the district 14
court’s entire restitution calculation for Count I. 15
29

-- 29 of 29 --