                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-1995

United States of America v. Sabarese
Precedential or Non-Precedential:

Docket 95-5160




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Recommended Citation
"United States of America v. Sabarese" (1995). 1995 Decisions. Paper 299.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/299


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1
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 95-5160


                    UNITED STATES OF AMERICA

                                  v.

                     THEODORE M. SABARESE,
                                       Appellant.




         On Appeal from the United States District Court
                 for the District of New Jersey
            (D.C. Criminal Action No. 93-cr-00389-1)




                                       Argued October 19, 1995

          Before: SCIRICA, COWEN and ROTH, Circuit Judges

               (Opinion Filed November 28, 1995)




Faith S. Hochberg
United States Attorney
Allan Tananbaum (Argued)
Assistant United States Attorney
Kevin McNulty
Assistant United States Attorney
Office of the United States Attorney
970 Broad Street
Newark, NJ 07102

         Attorneys for Appellee



                                  2
Nicholas J. Nastasi, Esq. (Argued)
241 South 7th Street
Philadelphia, PA 19106

Richard L., Scheff, Esq.
Gerard M. McCabe, Esq.
Montgomery, McCracken, Walker & Rhoads
Three Parkway - 20th Floor
Philadelphia, PA 19102


          Attorneys for Appellant




                        OPINION OF THE COURT




ROTH, Circuit Judge:
          Theodore Sabarese was sentenced to a term of

imprisonment by the United States District Court for the District

of New Jersey after being sentenced to a term of probation by the
United States District Court for the Eastern District of

Pennsylvania.   He now challenges the New Jersey prison sentence

claiming that, pursuant to the United States Sentencing

Guidelines, a subsequent sentence for a related offense must be

imposed concurrently.   He argues that the New Jersey district

court was constrained by § 5G1.3 of the Guidelines, read in

conjunction with 18 U.S.C. § 3564(b), to impose either a

probationary term or a prison sentence of no longer than 30 days.



                                                                   3
Finding no merit in Sabarese's challenge, we will affirm the New

Jersey district court's sentence.1

                                I.

          Sabarese played a key role in a scheme to defraud

financial institutions by obtaining loans that exceeded the

market value of the boats and airplanes financed.    Sabarese was

convicted after a trial in Pennsylvania on a two-count indictment

charging him with making false statements on loan applications in

order to obtain financing for non-existent yachts.    After his

conviction in Pennsylvania, Sabarese entered a guilty plea on a

one-count indictment returned against him in Connecticut.     The

Connecticut case was transferred to the Eastern District of

Pennsylvania where the judge sentenced Sabarese on the two

Pennsylvania counts and the one Connecticut count.

          Under the Sentencing Guidelines, Sabarese could have

been sentenced by the Pennsylvania court to a prison term of 24

to 30 months.   The presentence investigation report ("PSI") noted

Sabarese's involvement in the "related" New Jersey scheme.    The

district court in Pennsylvania agreed that the conduct in New

Jersey was related, which allowed the judge to elevate the

offense conduct level by two points.   Upon motion of the


1
          When statutory construction or construction of the
Sentencing Guidelines is required on appeal, the standard of
review is plenary. United States v. Holifield, 53 F.3d 11, 12-13
(3d Cir. 1995); Moody v. Sec. Pac. Business Credit, Inc., 971
F.2d 1056, 1063 (3d Cir. 1992); United States v. Nottingham, 898
F.2d 390, 392 (3d Cir. 1990). This court has appellate
jurisdiction under 28 U.S.C. § 1291 (1988) and 18 U.S.C. §
3742(a) (1988).



                                                                    3
Government, however, the judge granted a substantial downward

departure and sentenced Sabarese to concurrent five-year

probationary terms, conditioned on three months house arrest and

a payment of restitution in the amount of $1,170,511.

          After he was convicted and sentenced in Pennsylvania,

Sabarese pled guilty to the charges brought against him in New

Jersey.   The New Jersey indictment charged Sabarese with a total

of thirty counts:    one count of conspiracy, six counts of bank

fraud, and twenty-three counts of wire fraud.     These counts

stemmed from a conspiracy to obtain financing for airplanes.

The New Jersey judge concluded that the airplane fraud was not

related to the boat fraud in Pennsylvania.

          Under the Sentencing Guidelines, Sabarese could have

been sentenced to prison for a term of 24 to 30 months for the

New Jersey convictions.    However, because of Sabarese's

substantial assistance, the Government again moved for a downward

departure.    The New Jersey district court granted the

Government's motion, sentencing Sabarese to sixteen months

imprisonment, three years supervised release, and restitution

totalling $439,000.

                                 II.

             Sabarese's principal argument is that the language of

§5G1.3 of the Guidelines required the district court in New

Jersey to impose a sentence that would run concurrently with the

sentence imposed in the Eastern District of Pennsylvania.    The

parties agree that the 1988 version of the Guidelines applies in

this case.    In 1988, § 5G1.3 provided:


                                                                     4
          If at the time of sentencing, the defendant
          is already serving one or more unexpired
          sentences, then the sentences for the instant
          offense(s) shall run consecutively to such
          unexpired sentences, unless one or more of
          the instant offense(s) arose out of the same
          transactions or occurrences as the unexpired
          sentences. In the latter case, such instant
          sentences and the unexpired sentences shall
          run concurrently, except to the extent
          otherwise required by law.

U.S.S.G. § 5G1.3 (Oct. 1987).   Sabarese claims that the district

court in New Jersey was bound by the finding in the Eastern

District of Pennsylvania that the fraud schemes were "relevant

and related."   He argues that the term "relevant and related" is

defined in § 1B1.3 of the Guidelines and should be construed as

being synonymous with the phrase "a[rising] out of the same

transactions or occurrences" of § 5G1.3.     He then contends that

the "relevant and related" finding in the Eastern District of

Pennsylvania, taken together with the language of § 5G1.3,

mandates a sentence that would run concurrently with Sabarese's

unexpired Pennsylvania probationary term.2

          Sabarese next turns to 18 U.S.C. § 3564(b) and argues

that the only type of sentence which can run currently with a

sentence of probation is a sentence of imprisonment for less than

thirty days or a sentence of probation.    Section 3564(b) provides

in pertinent part:   "A term of probation does not run while the

2
          Sabarese also argues that the doctrine of collateral
estoppel should bar the Government from arguing in a subsequent
trial that the New Jersey transactions were not relevant and
related to the Pennsylvania transactions because a prior court
positively concluded that the transactions were in fact relevant
and related. Because our holding relies solely on the
construction of § 3564(b) and Guideline § 5G1.3, we need not
reach this issue.

                                                                     5
defendant is imprisoned in connection with a conviction for a

Federal, State, or local crime unless the imprisonment is for a

period of less than thirty consecutive days."   18 U.S.C. 3564(b).

Combining this language with his § 5G1.3 argument, Sabarese

concludes that the district judge was constrained by the

Guidelines and § 3564(b) to impose a sentence of imprisonment of

less than thirty days imprisonment or a sentence of a concurrent

probationary term.   We disagree.

           We hold that the district judge in New Jersey was not

so confined in imposing sentence by the provisions of § 3564(b).

This section merely clarifies that a term of probation will run

only during a concurrent term of probation or during a sentence

of imprisonment of less that 30 consecutive days.    Section

3564(b) does not require that a subsequently imposed sentence be

of any certain term or of any particular type, such as a sentence

of incarceration, of a fine, of community confinement, or of

probation.   There is no reason to believe that either Congress or

the Sentencing Commission intended § 5G1.3 and § 3564(b) to be

read in a conjunctive or restrictive manner.    Moreover, the use

of the term "sentence" in § 5G1.3 clearly refers to a sentence of

imprisonment.   Otherwise, the language of § 5G1.3 would make no

sense.   A sentence imposing a fine cannot run concurrently or

consecutively with a sentence of 12 months imprisonment.

           Moreover, even if the Pennsylvania and the New Jersey

offenses were considered to arise from the same transaction or

occurrence, the Guidelines provision in § 5G1.3 could not trump

the statutory provision of § 3564(b).   See United States v.


                                                                    6
Nottingham, 898 F.2d 390, 393 (3d Cir. 1990).    Indeed, even if

the offenses did arise from the same transaction or occurrence,

the "except to the extent otherwise required by law" language of

§ 5G1.3 would incorporate by reference into § 5G1.3 the provision

of § 3564(b) that a term of probation may not run concurrently

with a sentence of imprisonment (unless that sentence of

imprisonment is for less that 30 consecutive days).    If the term

of imprisonment cannot run concurrently with the sentence of

probation, the terms of imprisonment and of probation will have

to run consecutively.    It is distorted logic to interpret

§3564(b) to permit a sentence, imposed pursuant to a two-count

indictment, to limit a sentence, imposed on the basis of a

thirty-count indictment, simply because the two-count indictment

was tried first.   We reach this conclusion whether the offenses

are "related" or not.3

          We conclude, therefore, that the sentence of the

sixteen month term of imprisonment was properly imposed by the

district court in New Jersey and that Sabarese must serve that

term; his sentence to three-years of supervised release will then

run concurrently with the five-year probationary term imposed in

the Eastern District of Pennsylvania.


3
          Because we find that the provisions of § 3564(b) do not
place a 30 day limit on the term of imprisonment which can be
imposed on a defendant who has been sentenced to a prior term of
probation on a "related" offense, we do not need to go on to
determine whether "related" as defined in § 1B1.3 of the
Guidelines is synonymous with the phrase "arose out of the same
transaction or occurrences" of § 5G1.3. Nor are we required to
determine if the New Jersey district court was bound by the
"relatedness" finding of the Pennsylvania court.

                                                                     7
                                 III.

             For the foregoing reasons, the judgment of sentence

imposed on Sabarese by the New Jersey district court will be

affirmed.4




4
          Because we will affirm Sabarese's New Jersey sentence,
we will not consider Sabarese's request to assign the case to a
different judge for resentencing. We note, however, that it is
the standard practice in this circuit to assign a case on remand
to the judge who originally heard it. See United States v.
Baylin, 696 F.2d 1030, 1042 n.30 (3d Cir. 1982).


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