United States v. Sindima (amended)

06-2245-cr
United States v. Sindima (amended)
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2006 3
(Argued: December 15, 2006 Decided: March 5, 2007 4
As Amended: May 21, 2007) 5
Docket No. 06-2245-cr 6
------------------------------------- 7
UNITED STATES OF AMERICA, 8
Appellee, 9
- v - 10
FELIX SINDIMA, 11
Defendant-Appellant. 12
------------------------------------- 13
14
Before: SACK, KATZMANN, AND PARKER, Circuit Judges. 15
Appeal from a judgment of the United States District 16
Court for the Western District of New York (Richard J. Arcara, 17
Chief Judge) sentencing the defendant to thirty-six months' 18
incarceration for violations of probation, where the high end of 19
the advisory Guidelines range is ten months. 20
Remanded. 21
MARYBETH COVERT, Federal Public Defender's 22
Office, Buffalo, NY, for Defendant- 23
Appellant. 24
STEPHAN BACZYNSKI, Assistant United States 25
Attorney for the Western District of New 26
York (Terrance P. Flynn, United States 27
Attorney, Joseph J. Karaszewski, Assistant 28
United States Attorney, of counsel), 29
Buffalo, NY, for Appellee. 30

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2
SACK, Circuit Judge: 1
Following a guilty plea on federal mail fraud charges, 2
the United States District Court for the Western District of New 3
York (Richard J. Arcara, Chief Judge) imposed upon the defendant, 4
Felix Sindima, a sentence under the United States Sentencing 5
Guidelines (the "Guidelines") of, principally, three years' 6
probation. The terms of probation included a prohibition against 7
Sindima's commission of any further crime. Thereafter, while still 8
on probation, Sindima was charged with two violations of that 9
prohibition. The district court found Sindima guilty of both. On 10
April 13, 2006, the court imposed a sentence of thirty-six months' 11
imprisonment, twenty-six months above the high end of the advisory 12
Guidelines range. Sindima appeals, asserting that the sentence is 13
substantively unreasonable. 14
We conclude that, based on the present record, the 15
district court has not given an explanation of its reasons for the 16
length of the above-Guidelines sentence that is sufficient under 17
the circumstances to allow us to conclude with confidence that the 18
sentence is reasonable. Cf. United States v. Rattoballi, 452 F.3d 19
127, 128, 137 (2d Cir. 2006) (remanding where the district court 20
imposed upon the defendant a sentence "represent[ing] a substantial 21
deviation from the recommended Guidelines range" and the 22
"considerations [relied upon by the district court in so doing 23
were] neither sufficiently compelling nor present to the degree 24
necessary to support the sentence imposed"). Accordingly, we 25
remand for further proceedings. 26

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1 The state charges against Sindima were eventually dismissed.
3
BACKGROUND 1
On December 9, 2002, Sindima pleaded guilty to one count 2
of mail fraud arising out of a scheme in which he caused two 3
computer retailers to send computer equipment to him using the 4
names and social security numbers of others. On May 15, 2003, the 5
district court sentenced Sindima within his Guidelines range of 6
zero-to-six months by imposing three years' probation and 7
restitution in the amount of $9,356.88. The provisions of 8
Sindima's probation included the standard condition that he not 9
commit another crime while on probation. 10
On August 10, 2005, while Sindima remained on probation, 11
the government filed a petition alleging two violations of that 12
condition -- crimes he had allegedly committed and for which he had 13
been arrested by the Buffalo Police Department.1 On September 21, 14
2005, the district court conducted an evidentiary hearing. 15
Thereafter, on December 29, 2005, the court found Sindima guilty of 16
both charges. 17
The evidence presented at the hearing indicated that on 18
or about April 26, 2005, almost two years after his mail fraud 19
sentence, Sindima opened a series of bank accounts in the name of 20
"FS Computers." The first was with Bank of America, where he 21
deposited $3,200 with two checks that were eventually returned for 22
insufficient funds. Prior to the checks being returned, Sindima 23
withdrew $3,400 from the Bank of America account, $3,000 of which 24

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2 A Grade B violation is defined as "conduct constituting [a] . . . federal, state, or local
offense punishable by a term of imprisonment exceeding one year." U.S. Sentencing Guidelines
Manual ("U.S.S.G.") § 7B1.1(a)(2). A Grade B violation is the middle tier of a three-tiered
scheme for punishment of probation violations. Grade A violations are those crimes involving
violence, controlled substances, or firearms, or those punishable by more than twenty years in
prison. Grade C violations are crimes punishable by one year of imprisonment or less or the
violation of any other probation condition. Id. §§ 7B1.1(a)(1), (3).
3 The Guidelines here at issue are ranges derived from "advisory policy statements" with
respect to probation violations. See U.S.S.G. §§ 7B1.1-7B1.5. These policy statements provide
various "Guidelines ranges" based upon the grade of probation violation and the violator's
criminal history. Id. § 7B1.4. Sentences imposed thereunder were advisory even prior to United
4
he used to establish a similar account at Evans National Bank. On 1
June 13, 2005, after this $3,000 check and another check for $760 2
were returned for insufficient funds, Evans National Bank informed 3
Sindima that his account had been suspended. Undaunted, Sindima 4
deposited another check, but it was also returned for insufficient 5
funds. On June 24, 2005, he then wrote a $3,700 check drawn on his 6
still-suspended Evans account which he used to open a third account 7
at the Greater Buffalo Savings Bank. In accordance with its 8
policy, however, the bank placed an automatic nine-day hold on the 9
newly opened account. This check was subsequently returned for 10
insufficient funds, along with another check from a bank account in 11
his wife's name, which Sindima had also sought to deposit. Sindima 12
was eventually arrested following an attempt to withdraw $200 from 13
and deposit $11 to the Greater Buffalo Savings Bank account. 14
On January 23, 2006, the district court held an initial 15
sentencing hearing, at which time it evidently accepted the 16
Probation Office's calculation that Sindima's violations were 17
"Grade B"2 and his criminal history category was I, for which the 18
Guidelines prescribe an advisory range of four-to-ten months.3 The 19

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States v. Booker, 543 U.S. 220 (2005). See United States v. Goffi, 446 F.3d 319, 322 (2d Cir.
2006). Following Booker, the standard of review of sentences issued under the formerly
mandatory Guidelines and the long-advisory probation policy statements is the same. See United
States v. Lewis, 424 F.3d 239, 243 (2d Cir. 2005).
4 Because the district court sealed Simdima's pre-sentence report in its entirety, we omit
its findings and recommendations from this account.
5 Sindima was also sentenced to three years' supervised release and ordered to pay
restitution. He does not appeal these aspects of his sentence.
5
court gave the government and Sindima notice, however, that it was 1
considering a non-Guidelines sentence of sixty months, the 2
statutory maximum.4 Following adjournment of the sentencing 3
hearing, defense counsel submitted additional letters from various 4
persons attesting to Sindima's good character and a supplemental 5
memorandum urging leniency. 6
On April 13, 2006, the district court sentenced Sindima 7
for violation of probation. Although the high end of the advisory 8
Guidelines range is ten months, and defense counsel and the 9
government had "urge[d]" the district court to impose a Guidelines 10
sentence, Tr., Apr. 13, 2006, at 14, 15, the court sentenced 11
Sindima to, principally, thirty-six months in prison.5 After 12
expressing its view that Sindima was "a danger to the community," 13
id. at 10, the district court explained the reasons for its 14
sentence. First, the court indicated that it sentenced Sindima to 15
a term of imprisonment above the recommended 16
[G]uideline[s] range because of what I consider 17
egregious conduct while on probation. Despite 18
being given a substantial break by this Court 19
by being sentenced to probation, [Sindima] went 20
out and committed numerous additional acts 21
of . . . fraud. He, obviously, did not learn 22
his lesson while on probation. He's exhibited 23
complete disregard for the rules of law. 24

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6 During the sentencing colloquy, the district court devoted much of its attention to
Sindima's relationship with his church, which the court seemed to regard as inconsistent with his
protestations of sincerity and remorse. For example, the court remarked:
[W]hen you go to church and you share the services and your religion with other
people . . . everybody in that church . . . kind of bonds together. . . . Unless,
maybe, someone isn't quite sincere. . . . I think that's very unfortunate that you go
to church, being very outwardly,[sic] appears to be very sincere, very religious,
and will follow all the precepts of the religion, and I am sure -- I'm not sure what
all the religious beliefs are, but I'm sure it doesn't say you can defraud banks.
Tr., Apr. 13, 2006, at 11.
6
It is clear this sentence . . . was necessary 1
to address the extent of the criminal behavior 2
and to deter the defendant from future acts of 3
fraud. This is not a situation where the 4
defendant has made an isolated bad judgment 5
call while on probation. Instead, he engaged 6
in a calculated pattern of fraudulent activity 7
on a repeated basis in complete disregard of 8
the terms of his probation. 9
Tr., Apr. 13, 2006, at 17. 10
Second, however, the district court was persuaded in some 11
respects by the mitigating factors presented by defense counsel -- 12
that Sindima provided financial and emotional support to five 13
children, that he had continued his college studies while on 14
probation, and that he had volunteered in a center for the elderly 15
and in his church. Id. at 6-7; see also Def's. Second Sent'g Mem. 16
These factors "were considered and [were] the reason why" Sindima 17
received a "lesser sentence" than the five-year statutory maximum. 18
Tr., Apr. 13, 2006, at 17.6
19
The district court did not record its reasons for the 20
sentence in its written judgment. 21
DISCUSSION 22
I. Standard of Review 23

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7 Section 3553(a) provides, in pertinent part:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of
this subsection. The court, in determining the particular sentence
to be imposed, shall consider --
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed --
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) 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 kinds of sentence and the sentencing range established [and
recommended 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
7
We review sentences for reasonableness, United States v. 1
Booker, 543 U.S. 220, 261 (2005), which has both substantive and 2
procedural dimensions, see United States v. Crosby, 397 F.3d 103, 3
114 (2d Cir. 2005). In the substantive dimension in which this 4
appeal is raised, we determine "whether the length of the sentence 5
is reasonable," Rattoballi, 452 F.3d at 132, focusing our attention 6
on the district court's explanation of its sentence in light of the 7
factors detailed in 18 U.S.C. § 3553(a),7 see id. at 134-35.8
8

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similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a) (emphasis added).
8 For a sentence to be procedurally reasonable, the district court must have correctly "(a)
identified the Guidelines range supported by the facts found by the court, (b) treated the
Guidelines as advisory, and (c) considered the Guidelines together with the other [§ 3553(a)]
factors." Rattoballi, 457 F.3d at 131. Sindima does not allege his sentence was procedurally
unreasonable.
8
Reasonableness review "is akin to review for abuse of 1
discretion." United States v. Fernandez, 443 F.3d 19, 27 (2d 2
Cir.), cert. denied, 127 S. Ct. 192 (2006). A district court 3
abuses its discretion when its decision "cannot be located within 4
the range of permissible decisions" or is based either on an error 5
of law or a clearly erroneous factual finding. United States v. 6
Fuller, 426 F.3d 556, 562 (2d Cir. 2005) (citations and internal 7
quotation marks omitted). We have observed that "'reasonableness' 8
is inherently a concept of flexible meaning, generally lacking 9
precise boundaries," Crosby, 397 F.3d at 115; that it involves 10
"some degree of subjectivity that often cannot be precisely 11
explained," United States v. Jones, 460 F.3d 191, 195 (2d Cir. 12
2006); and that our function in reviewing sentences is to "exhibit 13
restraint, not micromanagement," United States v. Fleming, 397 F.3d 14
95, 100 (2d Cir. 2005). Accordingly, "[a]lthough the brevity or 15
length of a sentence can exceed the bounds of 'reasonableness,' we 16
[have] anticipate[d] encountering such circumstances infrequently." 17
Id. Nevertheless, "in any particular case a sentence, assessed 18
even against the flexible standard of reasonableness, [may] be so 19
far above or below a Guidelines range and so inadequately explained 20

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9
by the sentencing judge as to require rejection on appeal." Jones, 1
460 F.3d at 196. 2
II. Section 3553(c) 3
A district court is statutorily required to "state in 4
open court the reasons for its imposition of [a] particular 5
sentence." See 18 U.S.C. § 3553(c). Where, as here, the sentence 6
is outside of an advisory Guidelines range, the court must also 7
state "with specificity in the written order" "the specific reason" 8
for the sentence imposed. Id. § 3553(c)(2); see also Jones, 460 9
F.3d at 196; United States v. Lewis, 424 F.3d 239, 243-45 (2d Cir. 10
2005). 11
"[O]ur . . . ability to uphold a sentence as reasonable 12
will be informed by the district court's statement of reasons (or 13
lack thereof) for the sentence that it elects to impose." 14
Rattoballi, 452 F.3d at 134. Fulfilment of the statutory 15
requirements of section 3553(c) thus enables us to perform 16
reasonableness review. Cf. United States v. Pereira, 465 F.3d 515, 17
524-25 & n.9 (2d Cir. 2006) (discussing sufficiency of oral 18
explanation under § 3553(c) in terms of its ability to render 19
sentence reasonable). 20
Yet as much as our review of a sentence depends upon the 21
reasons given for it, we have declined to encroach upon the 22
province of district courts by dictating a precise mode or manner 23
in which they must explain the sentences they impose. As we have 24
frequently observed, we do not require district courts to engage in 25
the utterance of "robotic incantations" when imposing sentences in 26

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10
order to assure us that they have weighed in an appropriate manner 1
the various section 3553(a) factors. Crosby, 397 F.3d at 113; see 2
also Fernandez, 443 F.3d at 29 ("'[N]o specific verbal formulations 3
should be prescribed to demonstrate the adequate discharge of the 4
duty to "consider" matters relevant to sentencing.'" (quoting 5
Fleming, 397 F.3d at 100)). And where, as here, the district court 6
imposes a non-Guidelines sentence, unlike many other circuits we 7
have been -- and remain -- disinclined to adopt a more mechanical 8
rule requiring "a more compelling accounting the farther a sentence 9
deviates from the advisory Guidelines range." Rattoballi, 452 F.3d 10
at 134; id. (citing cases). 11
"We have declined to articulate precise standards for 12
assessing whether a district court's explanation of its reason for 13
imposing a non-Guidelines sentence is sufficient . . . ." Pereira, 14
465 F.3d at 524. But, in the course of imposing a sentence, the 15
district court's statement of reasons must at least explain -- in 16
enough detail to allow a reviewing court, the defendant, his or her 17
counsel, and members of the public to understand, see Lewis, 424 18
F.3d at 247 -- why the considerations used as justifications for 19
the sentence are "sufficiently compelling []or present to the 20
degree necessary to support the sentence imposed." Rattoballi, 452 21
F.3d at 137. 22
III. Sindima's Sentence 23
Sindima's thirty-six month sentence was twenty-six months 24
greater than the ten-month high end of the advisory Guidelines 25
range applicable to his violation of probation. We find it 26

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11
instructive, for purposes of comparison, that Sindima's criminal 1
record put him in the minimum criminal history category: I. Had he 2
been, by stark contrast, a career criminal with a criminal record 3
placing him in the maximum category, VI, the high end of his range 4
would have been twenty-seven months, nine months shorter than the 5
sentence the district court imposed upon him. See U.S. Sentencing 6
Guidelines Manual ("U.S.S.G.") § 7B1.4(a) (setting forth a 7
Guidelines range of 21-27 months for a Grade B violator with 8
criminal history category VI). Similarly, had Sindima's conduct 9
fallen within the most serious of probation violations -- crimes of 10
violence, drug or firearms crimes, and crimes punishable by more 11
than twenty years' imprisonment -- the high end of the applicable 12
Guidelines range would have been eighteen months, half the length 13
of incarceration imposed upon him by the district court. Id. 14
Sindima's sentence therefore strikes us as "marginal." Rattoballi, 15
452 F.3d at 135. The statement of reasons given by the district 16
court does not on the present record support the severity of the 17
sentence. We do not foreclose the possibility that there may be 18
reasons that impelled the court to impose it which, if identified, 19
would persuade us that the sentence was appropriate. 20
The first articulated basis for the length of the 21
district court's sentence was that the defendant engaged in 22
"egregious conduct" despite being given a "substantial break" at 23
the time of his original sentencing. But the Sentencing Commission 24
has indicated that while the three-tiered system for probation 25
violations is "based on the defendant's actual conduct," U.S.S.G. 26

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12
§ 7B1.1 cmt. n.1, sentences for probation violations are not 1
intended to punish defendants for the conduct underlying the 2
violation "as if that conduct were being sentenced as new federal 3
criminal conduct." U.S.S.G. Chap. 7, Pt. A.3(b). The Commission 4
adopted the policy, instead, that "the primary goal of a revocation 5
sentence" ought to be "to sanction the violator for failing to 6
abide by the conditions of the court-ordered supervision," in order 7
to account for the breach of trust inherent in failing to 8
appreciate the privileges associated with such supervision. Id. 9
Thus, "at revocation the court should sanction primarily the 10
defendant's breach of trust, while taking into account, to a 11
limited degree, the seriousness of the underlying violation and the 12
criminal history of the violator." Id. (emphasis added); see also 13
id. at § 7B1.3(f) (indicating sentence for probation violation to 14
be served consecutively with any other sentence imposed). 15
Thus, it seems to us, when the district court relied on 16
Sindima's recidivism in the face of the "substantial break" he 17
received in his original sentence to impose a sentence 18
substantially in excess of the advisory Guidelines maximum, Tr., 19
Apr. 13, 2006, at 17, it was relying on a factor for which the 20
Guidelines range was designed to account: Sindima's breach of the 21
district court's trust that he would abide by the terms of his 22
probation in return for having avoided incarceration. "When a 23
factor is already included in the calculation of the [G]uidelines 24
sentencing range, a judge who wishes to rely on that same factor to 25
impose a sentence above or below the range must articulate 26

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13
specifically the reasons that this particular defendant's situation 1
is different from the ordinary situation covered by the 2
[G]uidelines calculation." United States v. Zapete-Garcia, 447 3
F.3d 57, 60 (1st Cir. 2006). Accordingly, it may well have been 4
reasonable for the district court to have imposed a non-Guidelines 5
sentence based upon section 3553(a) factors already accounted for 6
in the Guidelines range. The Guidelines "'can point to outcomes 7
that may appear unreasonable to sentencing judges in particular 8
cases.'" Rattoballi, 452 F.3d at 133 (quoting United States v. 9
Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc)); see 10
also United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007) 11
(noting that district courts sentencing defendants ought to 12
"evaluate how well the applicable Guideline effectuates the 13
purposes of sentencing enumerated in § 3553(a)"). But we cannot 14
properly conduct our review absent an explanation by the district 15
court of why a Guidelines sentence did not sufficiently account for 16
those factors in Sindima's case. We do not know why the district 17
court thought that the breach of trust inherent in Sindima's 18
probation violations warranted a sentence of the magnitude imposed. 19
The district judge did emphasize that Sindima's probation 20
violation was not "an isolated bad judgment call" and that it 21
constituted an "egregious" scheme involving "a calculated pattern 22
of fraudulent activity on a repeated basis," the same type of 23
conduct for which he had been placed on probation in the first 24
instance. Tr., Apr. 13, 2006, at 17. We do not doubt that these 25
considerations are relevant in assessing the severity of Sindima's 26

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14
breach of trust. But we are instructed by the Sentencing 1
Commission's policy to consider the conduct underlying the 2
violation only "to a limited degree," U.S.S.G. Chap. 7, Pt. A.3(b), 3
and by our prior case law that where a district court imposes its 4
sentence based on "factors incompatible with the Commission's 5
policy statements," the sentence may be substantively unreasonable 6
absent a "persuasive explanation as to why the sentence actually 7
comports with the § 3553(a) factors," Rattoballi, 452 F.3d at 134. 8
The district court was required to consider the policies 9
articulated by the Sentencing Commission related to the purposes of 10
punishing probation violators. See 18 U.S.C. § 3553(a)(4)(B); 11
Rattoballi, 452 F.3d at 134. The district court's stated reasons 12
do not give us sufficient confidence that it did so. We understand 13
that Sindima's repeated fraudulent conduct may very well have 14
rendered reasonable a variance above the ten-month high end of the 15
advisory range. But in light of the overall scope of the conduct 16
involved, the limited criminal history of the defendant, and the 17
relevant advice of the Guidelines, we cannot understand the 18
striking size of the variance imposed in this case absent a more 19
persuasive explanation for it. 20
We do not find the district court's statement of its 21
second ground for Sindima's sentence, his personal characteristics, 22
sufficiently compelling, either. The district court's decision to 23
sentence the defendant to less than the statutory maximum of five 24
years on the basis of defense counsel's submissions as to Sindima's 25
character tells us little about why the statutory maximum sentence 26

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15
might have been reasonably considered or why a sentence of thirty- 1
six months was reasonable under the circumstances. 2
We therefore conclude that on the present record, we are 3
not confident that the grounds upon which the district court relied 4
are "sufficiently compelling [and] present to the degree necessary 5
to support the sentence imposed." Rattoballi, 452 F.3d at 137. We 6
therefore remand the case to the district court. If the district 7
court determines that the same sentence as that which is now in 8
effect is indeed warranted, it may reimpose such a sentence 9
accompanied by a statement of reasons that is "sufficiently 10
compelling." Id. If, however, in light of the foregoing 11
discussion, it determines that a different sentence is called for, 12
it may impose that sentence accompanied by a statement of the 13
reasons for it. The court should also record its reasons for the 14
sentence in its written judgment pursuant to 18 U.S.C. 15
§ 3553(c)(2). 16
We urge the district court to act within sixty days after 17
the amended date of this decision. After an amended judgment is 18
issued by the district court, jurisdiction may be restored to this 19
court by letter from any party, and the Clerk's Office of this 20
court shall set an expeditious briefing schedule and send such 21
proceeding to this panel for disposition. See United States v. 22
Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994). 23
CONCLUSION 24
For the foregoing reasons, we remand this cause to the 25
district court for further proceedings consistent with this 26

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16
opinion. 1

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