     06-2245-cr
     United States v. Sindima (amended)

1                          UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                  August Term, 2006

4    (Argued:    December 15, 2006                     Decided:   March 5, 2007

5                            As Amended:      May 21, 2007)

6                               Docket No. 06-2245-cr

7                      -------------------------------------

8                             UNITED STATES OF AMERICA,

9                                         Appellee,

10                                         - v -

11                                  FELIX SINDIMA,

12                               Defendant-Appellant.

13                     -------------------------------------
14
15   Before:     SACK, KATZMANN, AND PARKER, Circuit Judges.

16               Appeal from a judgment of the United States District

17   Court for the Western District of New York (Richard J. Arcara,

18   Chief Judge) sentencing the defendant to thirty-six months'

19   incarceration for violations of probation, where the high end of

20   the advisory Guidelines range is ten months.

21               Remanded.

22                                 MARYBETH COVERT, Federal Public Defender's
23                                 Office, Buffalo, NY, for Defendant-
24                                 Appellant.

25                                 STEPHAN BACZYNSKI, Assistant United States
26                                 Attorney for the Western District of New
27                                 York (Terrance P. Flynn, United States
28                                 Attorney, Joseph J. Karaszewski, Assistant
29                                 United States Attorney, of counsel),
30                                 Buffalo, NY, for Appellee.
1    SACK, Circuit Judge:

2              Following a guilty plea on federal mail fraud charges,

3    the United States District Court for the Western District of New

4    York (Richard J. Arcara, Chief Judge) imposed upon the defendant,

5    Felix Sindima, a sentence under the United States Sentencing

6    Guidelines (the "Guidelines") of, principally, three years'

7    probation.   The terms of probation included a prohibition against

8    Sindima's commission of any further crime.   Thereafter, while still

9    on probation, Sindima was charged with two violations of that

10   prohibition.   The district court found Sindima guilty of both.   On

11   April 13, 2006, the court imposed a sentence of thirty-six months'

12   imprisonment, twenty-six months above the high end of the advisory

13   Guidelines range.   Sindima appeals, asserting that the sentence is

14   substantively unreasonable.

15             We conclude that, based on the present record, the

16   district court has not given an explanation of its reasons for the

17   length of the above-Guidelines sentence that is sufficient under

18   the circumstances to allow us to conclude with confidence that the

19   sentence is reasonable.   Cf. United States v. Rattoballi, 452 F.3d

20   127, 128, 137 (2d Cir. 2006) (remanding where the district court

21   imposed upon the defendant a sentence "represent[ing] a substantial

22   deviation from the recommended Guidelines range" and the

23   "considerations [relied upon by the district court in so doing

24   were] neither sufficiently compelling nor present to the degree

25   necessary to support the sentence imposed").   Accordingly, we

26   remand for further proceedings.



                                       2
1                                             BACKGROUND

2                 On December 9, 2002, Sindima pleaded guilty to one count

3    of mail fraud arising out of a scheme in which he caused two

4    computer retailers to send computer equipment to him using the

5    names and social security numbers of others.                      On May 15, 2003, the

6    district court sentenced Sindima within his Guidelines range of

7    zero-to-six months by imposing three years' probation and

8    restitution in the amount of $9,356.88.                    The provisions of

9    Sindima's probation included the standard condition that he not

10   commit another crime while on probation.

11                On August 10, 2005, while Sindima remained on probation,

12   the government filed a petition alleging two violations of that

13   condition -- crimes he had allegedly committed and for which he had

14   been arrested by the Buffalo Police Department.1                         On September 21,

15   2005, the district court conducted an evidentiary hearing.

16   Thereafter, on December 29, 2005, the court found Sindima guilty of

17   both charges.

18                The evidence presented at the hearing indicated that on

19   or about April 26, 2005, almost two years after his mail fraud

20   sentence, Sindima opened a series of bank accounts in the name of

21   "FS Computers."         The first was with Bank of America, where he

22   deposited $3,200 with two checks that were eventually returned for

23   insufficient funds.           Prior to the checks being returned, Sindima

24   withdrew $3,400 from the Bank of America account, $3,000 of which



           1
               The state charges against Sindima were eventually dismissed.
                                                    3
1    he used to establish a similar account at Evans National Bank.                                     On

2    June 13, 2005, after this $3,000 check and another check for $760

3    were returned for insufficient funds, Evans National Bank informed

4    Sindima that his account had been suspended.                           Undaunted, Sindima

5    deposited another check, but it was also returned for insufficient

6    funds.      On June 24, 2005, he then wrote a $3,700 check drawn on his

7    still-suspended Evans account which he used to open a third account

8    at the Greater Buffalo Savings Bank.                      In accordance with its

9    policy, however, the bank placed an automatic nine-day hold on the

10   newly opened account.              This check was subsequently returned for

11   insufficient funds, along with another check from a bank account in

12   his wife's name, which Sindima had also sought to deposit.                                  Sindima

13   was eventually arrested following an attempt to withdraw $200 from

14   and deposit $11 to the Greater Buffalo Savings Bank account.

15                  On January 23, 2006, the district court held an initial

16   sentencing hearing, at which time it evidently accepted the

17   Probation Office's calculation that Sindima's violations were

18   "Grade B"2 and his criminal history category was I, for which the

19   Guidelines prescribe an advisory range of four-to-ten months.3                                    The

             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
1    court gave the government and Sindima notice, however, that it was

2    considering a non-Guidelines sentence of sixty months, the

3    statutory maximum.4            Following adjournment of the sentencing

4    hearing, defense counsel submitted additional letters from various

5    persons attesting to Sindima's good character and a supplemental

6    memorandum urging leniency.

7                  On April 13, 2006, the district court sentenced Sindima

8    for violation of probation.                 Although the high end of the advisory

9    Guidelines range is ten months, and defense counsel and the

10   government had "urge[d]" the district court to impose a Guidelines

11   sentence, Tr., Apr. 13, 2006, at 14, 15, the court sentenced

12   Sindima to, principally, thirty-six months in prison.5                              After

13   expressing its view that Sindima was "a danger to the community,"

14   id. at 10, the district court explained the reasons for its

15   sentence.       First, the court indicated that it sentenced Sindima to

16                 a term of imprisonment above the recommended
17                 [G]uideline[s] range because of what I consider
18                 egregious conduct while on probation. Despite
19                 being given a substantial break by this Court
20                 by being sentenced to probation, [Sindima] went
21                 out and committed numerous additional acts
22                 of . . . fraud. He, obviously, did not learn
23                 his lesson while on probation. He's exhibited
24                 complete disregard for the rules of law.


      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
1                   It is clear this sentence . . . was necessary
2                   to address the extent of the criminal behavior
3                   and to deter the defendant from future acts of
4                   fraud. This is not a situation where the
5                   defendant has made an isolated bad judgment
6                   call while on probation. Instead, he engaged
7                   in a calculated pattern of fraudulent activity
8                   on a repeated basis in complete disregard of
9                   the terms of his probation.
10   Tr., Apr. 13, 2006, at 17.

11                 Second, however, the district court was persuaded in some

12   respects by the mitigating factors presented by defense counsel --

13   that Sindima provided financial and emotional support to five

14   children, that he had continued his college studies while on

15   probation, and that he had volunteered in a center for the elderly

16   and in his church.            Id. at 6-7; see also Def's. Second Sent'g Mem.

17   These factors "were considered and [were] the reason why" Sindima

18   received a "lesser sentence" than the five-year statutory maximum.

19   Tr., Apr. 13, 2006, at 17.6

20                 The district court did not record its reasons for the

21   sentence in its written judgment.

22                                              DISCUSSION

23                 I.    Standard of Review



             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
1                We review sentences for reasonableness, United States v.

2   Booker, 543 U.S. 220, 261 (2005), which has both substantive and

3   procedural dimensions, see United States v. Crosby, 397 F.3d 103,

4   114 (2d Cir. 2005).           In the substantive dimension in which this

5   appeal is raised, we determine "whether the length of the sentence

6   is reasonable," Rattoballi, 452 F.3d at 132, focusing our attention

7   on the district court's explanation of its sentence in light of the

8   factors detailed in 18 U.S.C. § 3553(a),7 see id. at 134-35.8


          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
1                  Reasonableness review "is akin to review for abuse of

2    discretion."         United States v. Fernandez, 443 F.3d 19, 27 (2d

3    Cir.), cert. denied, 127 S. Ct. 192 (2006).                          A district court

4    abuses its discretion when its decision "cannot be located within

5    the range of permissible decisions" or is based either on an error

6    of law or a clearly erroneous factual finding.                           United States v.

7    Fuller, 426 F.3d 556, 562 (2d Cir. 2005) (citations and internal

8    quotation marks omitted).                We have observed that "'reasonableness'

9    is inherently a concept of flexible meaning, generally lacking

10   precise boundaries," Crosby, 397 F.3d at 115; that it involves

11   "some degree of subjectivity that often cannot be precisely

12   explained," United States v. Jones, 460 F.3d 191, 195 (2d Cir.

13   2006); and that our function in reviewing sentences is to "exhibit

14   restraint, not micromanagement," United States v. Fleming, 397 F.3d

15   95, 100 (2d Cir. 2005).                Accordingly, "[a]lthough the brevity or

16   length of a sentence can exceed the bounds of 'reasonableness,' we

17   [have] anticipate[d] encountering such circumstances infrequently."

18   Id.    Nevertheless, "in any particular case a sentence, assessed

19   even against the flexible standard of reasonableness, [may] be so

20   far above or below a Guidelines range and so inadequately explained


                     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
1    by the sentencing judge as to require rejection on appeal."     Jones,

2    460 F.3d at 196.

3             II.   Section 3553(c)

4             A district court is statutorily required to "state in

5    open court the reasons for its imposition of [a] particular

6    sentence."   See 18 U.S.C. § 3553(c).    Where, as here, the sentence

7    is outside of an advisory Guidelines range, the court must also

8    state "with specificity in the written order" "the specific reason"

9    for the sentence imposed.   Id. § 3553(c)(2); see also Jones, 460

10   F.3d at 196; United States v. Lewis, 424 F.3d 239, 243-45 (2d Cir.

11   2005).

12            "[O]ur . . . ability to uphold a sentence as reasonable

13   will be informed by the district court's statement of reasons (or

14   lack thereof) for the sentence that it elects to impose."

15   Rattoballi, 452 F.3d at 134.     Fulfilment of the statutory

16   requirements of section 3553(c) thus enables us to perform

17   reasonableness review.   Cf. United States v. Pereira, 465 F.3d 515,

18   524-25 & n.9 (2d Cir. 2006) (discussing sufficiency of oral

19   explanation under § 3553(c) in terms of its ability to render

20   sentence reasonable).

21            Yet as much as our review of a sentence depends upon the

22   reasons given for it, we have declined to encroach upon the

23   province of district courts by dictating a precise mode or manner

24   in which they must explain the sentences they impose.     As we have

25   frequently observed, we do not require district courts to engage in

26   the utterance of "robotic incantations" when imposing sentences in


                                         9
1    order to assure us that they have weighed in an appropriate manner

2    the various section 3553(a) factors.   Crosby, 397 F.3d at 113; see

3    also Fernandez, 443 F.3d at 29 ("'[N]o specific verbal formulations

4    should be prescribed to demonstrate the adequate discharge of the

5    duty to "consider" matters relevant to sentencing.'" (quoting

6    Fleming, 397 F.3d at 100)).   And where, as here, the district court

7    imposes a non-Guidelines sentence, unlike many other circuits we

8    have been -- and remain -- disinclined to adopt a more mechanical

9    rule requiring "a more compelling accounting the farther a sentence

10   deviates from the advisory Guidelines range."     Rattoballi, 452 F.3d

11   at 134; id. (citing cases).

12            "We have declined to articulate precise standards for

13   assessing whether a district court's explanation of its reason for

14   imposing a non-Guidelines sentence is sufficient . . . ."       Pereira,

15   465 F.3d at 524.   But, in the course of imposing a sentence, the

16   district court's statement of reasons must at least explain -- in

17   enough detail to allow a reviewing court, the defendant, his or her

18   counsel, and members of the public to understand, see Lewis, 424

19   F.3d at 247 -- why the considerations used as justifications for

20   the sentence are "sufficiently compelling []or present to the

21   degree necessary to support the sentence imposed."    Rattoballi, 452

22   F.3d at 137.

23            III.   Sindima's Sentence

24            Sindima's thirty-six month sentence was twenty-six months

25   greater than the ten-month high end of the advisory Guidelines

26   range applicable to his violation of probation.    We find it


                                      10
1    instructive, for purposes of comparison, that Sindima's criminal

2    record put him in the minimum criminal history category: I.     Had he

3    been, by stark contrast, a career criminal with a criminal record

4    placing him in the maximum category, VI, the high end of his range

5    would have been twenty-seven months, nine months shorter than the

6    sentence the district court imposed upon him.    See U.S. Sentencing

7    Guidelines Manual ("U.S.S.G.") § 7B1.4(a) (setting forth a

8    Guidelines range of 21-27 months for a Grade B violator with

9    criminal history category VI).    Similarly, had Sindima's conduct

10   fallen within the most serious of probation violations -- crimes of

11   violence, drug or firearms crimes, and crimes punishable by more

12   than twenty years' imprisonment -- the high end of the applicable

13   Guidelines range would have been eighteen months, half the length

14   of incarceration imposed upon him by the district court.     Id.

15   Sindima's sentence therefore strikes us as "marginal."     Rattoballi,

16   452 F.3d at 135.    The statement of reasons given by the district

17   court does not on the present record support the severity of the

18   sentence.    We do not foreclose the possibility that there may be

19   reasons that impelled the court to impose it which, if identified,

20   would persuade us that the sentence was appropriate.

21               The first articulated basis for the length of the

22   district court's sentence was that the defendant engaged in

23   "egregious conduct" despite being given a "substantial break" at

24   the time of his original sentencing.    But the Sentencing Commission

25   has indicated that while the three-tiered system for probation

26   violations is "based on the defendant's actual conduct," U.S.S.G.


                                       11
1    § 7B1.1 cmt. n.1, sentences for probation violations are not

2    intended to punish defendants for the conduct underlying the

3    violation "as if that conduct were being sentenced as new federal

4    criminal conduct."   U.S.S.G. Chap. 7, Pt. A.3(b).   The Commission

5    adopted the policy, instead, that "the primary goal of a revocation

6    sentence" ought to be "to sanction the violator for failing to

7    abide by the conditions of the court-ordered supervision," in order

8    to account for the breach of trust inherent in failing to

9    appreciate the privileges associated with such supervision.    Id.

10   Thus, "at revocation the court should sanction primarily the

11   defendant's breach of trust, while taking into account, to a

12   limited degree, the seriousness of the underlying violation and the

13   criminal history of the violator."    Id. (emphasis added); see also

14   id. at § 7B1.3(f) (indicating sentence for probation violation to

15   be served consecutively with any other sentence imposed).

16            Thus, it seems to us, when the district court relied on

17   Sindima's recidivism in the face of the "substantial break" he

18   received in his original sentence to impose a sentence

19   substantially in excess of the advisory Guidelines maximum, Tr.,

20   Apr. 13, 2006, at 17, it was relying on a factor for which the

21   Guidelines range was designed to account:   Sindima's breach of the

22   district court's trust that he would abide by the terms of his

23   probation in return for having avoided incarceration.    "When a

24   factor is already included in the calculation of the [G]uidelines

25   sentencing range, a judge who wishes to rely on that same factor to

26   impose a sentence above or below the range must articulate

                                      12
1    specifically the reasons that this particular defendant's situation

2    is different from the ordinary situation covered by the

3    [G]uidelines calculation."     United States v. Zapete-Garcia, 447

4    F.3d 57, 60 (1st Cir. 2006).    Accordingly, it may well have been

5    reasonable for the district court to have imposed a non-Guidelines

6    sentence based upon section 3553(a) factors already accounted for

7    in the Guidelines range.    The Guidelines "'can point to outcomes

8    that may appear unreasonable to sentencing judges in particular

9    cases.'"    Rattoballi, 452 F.3d at 133 (quoting United States v.

10   Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc)); see

11   also United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007)

12   (noting that district courts sentencing defendants ought to

13   "evaluate how well the applicable Guideline effectuates the

14   purposes of sentencing enumerated in § 3553(a)").    But we cannot

15   properly conduct our review absent an explanation by the district

16   court of why a Guidelines sentence did not sufficiently account for

17   those factors in Sindima's case.     We do not know why the district

18   court thought that the breach of trust inherent in Sindima's

19   probation violations warranted a sentence of the magnitude imposed.

20               The district judge did emphasize that Sindima's probation

21   violation was not "an isolated bad judgment call" and that it

22   constituted an "egregious" scheme involving "a calculated pattern

23   of fraudulent activity on a repeated basis," the same type of

24   conduct for which he had been placed on probation in the first

25   instance.    Tr., Apr. 13, 2006, at 17.   We do not doubt that these

26   considerations are relevant in assessing the severity of Sindima's


                                        13
1    breach of trust.   But we are instructed by the Sentencing

2    Commission's policy to consider the conduct underlying the

3    violation only "to a limited degree," U.S.S.G. Chap. 7, Pt. A.3(b),

4    and by our prior case law that where a district court imposes its

5    sentence based on "factors incompatible with the Commission's

6    policy statements," the sentence may be substantively unreasonable

7    absent a "persuasive explanation as to why the sentence actually

8    comports with the § 3553(a) factors,"     Rattoballi, 452 F.3d at 134.

9    The district court was required to consider the policies

10   articulated by the Sentencing Commission related to the purposes of

11   punishing probation violators.     See 18 U.S.C. § 3553(a)(4)(B);

12   Rattoballi, 452 F.3d at 134.   The district court's stated reasons

13   do not give us sufficient confidence that it did so.    We understand

14   that Sindima's repeated fraudulent conduct may very well have

15   rendered reasonable a variance above the ten-month high end of the

16   advisory range.    But in light of the overall scope of the conduct

17   involved, the limited criminal history of the defendant, and the

18   relevant advice of the Guidelines, we cannot understand the

19   striking size of the variance imposed in this case absent a more

20   persuasive explanation for it.

21            We do not find the district court's statement of its

22   second ground for Sindima's sentence, his personal characteristics,

23   sufficiently compelling, either.    The district court's decision to

24   sentence the defendant to less than the statutory maximum of five

25   years on the basis of defense counsel's submissions as to Sindima's

26   character tells us little about why the statutory maximum sentence


                                        14
1    might have been reasonably considered or why a sentence of thirty-

2    six months was reasonable under the circumstances.

3             We therefore conclude that on the present record, we are

4    not confident that the grounds upon which the district court relied

5    are "sufficiently compelling [and] present to the degree necessary

6    to support the sentence imposed."       Rattoballi, 452 F.3d at 137.    We

7    therefore remand the case to the district court.      If the district

8    court determines that the same sentence as that which is now in

9    effect is indeed warranted, it may reimpose such a sentence

10   accompanied by a statement of reasons that is "sufficiently

11   compelling."    Id.   If, however, in light of the foregoing

12   discussion, it determines that a different sentence is called for,

13   it may impose that sentence accompanied by a statement of the

14   reasons for it.   The court should also record its reasons for the

15   sentence in its written judgment pursuant to 18 U.S.C.

16   § 3553(c)(2).

17            We urge the district court to act within sixty days after

18   the amended date of this decision.      After an amended judgment is

19   issued by the district court, jurisdiction may be restored to this

20   court by letter from any party, and the Clerk's Office of this

21   court shall set an expeditious briefing schedule and send such

22   proceeding to this panel for disposition.       See United States v.

23   Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994).

24                                  CONCLUSION

25            For the foregoing reasons, we remand this cause to the

26   district court for further proceedings consistent with this

                                        15
1   opinion.




               16
