United States of America v. Joe Sabino

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0017n.06
Filed: October 12, 2004
Nos. 04-3214/3327
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-Appellant,
v.
JOE SABINO,
Defendant-Appellant/Cross-
Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
Before: KENNEDY, DAUGHTREY, and COOK, Circuit Judges.
PER CURIAM. The defendant, Joe Sabino, together with two co-defendants, was
convicted of conspiracy to defraud the United States by obstructing the functions of the
Internal Revenue Service, in violation of 18 U.S.C. 371. On appeal, the sentence he
received was vacated, and his case was remanded to the district court for re-sentencing.
See United States v. Sabino, 274 F.3d 1053, 1062 (6th Cir. 2001). In this present phase of
the litigation, Sabino asserts that on remand the district court erred in determining that it
could not depart downward in sentencing to a point at which the defendant’s entire sentence
would be suspended. The government cross-appeals, insisting that the extent of the district
court’s downward departure was too great, not too small. Finding no error in the sentencing
calculus employed by the district judge, we affirm.

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Nos. 04-3214/3327
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We had previously approved the district court’s decision to depart downward three
levels, based upon a constellation of factors noted in Sabino I. See 274 F.3d at 1079. At
re-sentencing, the district court increased the departure two additional levels to take into
account the continuing physical deterioration of this now 77-year-old defendant. We agree
with the district court that the reasons proffered by the defendant at re-sentencing were not
sufficient to depart downward any farther.
We also reject the government’s argument that the district judge was limited on
remand to a downward departure of no more than three levels. The opinion in Sabino I
cannot reasonably be read to place such a restriction at re-sentencing.
AFFIRMED.

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