11-570-cr
United States v. Esso



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 27th day of June, two thousand twelve.

PRESENT:                JOHN M. WALKER, Jr.,
                        GERARD E. LYNCH,
                        CHRISTOPHER F. DRONEY,
                                   Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,
                     Appellee,

                        v.                                            11-570-cr

GEORGE ESSO,

                        Defendant-Appellant.
_____________________________________

FOR DEFENDANT-APPELLANT:                        DARRELL B. FIELDS, Federal Defenders of New
                                                York, Inc., New York, NY.

FOR APPELLEE:                                   REBECCA A. ROHR, Assistant United States
                                                Attorney (Iris Lan, Assistant United States
                                                Attorney, on the brief), for Preet Bharara, United
                                                States Attorney for the Southern District of New
                                                York, New York, NY.


                                                     1
       Appeal from the judgment of the United States District Court for the Southern

District of New York (Scheindlin, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of sentence of the district court is VACATED, and the matter

REMANDED to the district court for resentencing. Defendant-appellant George Esso was

convicted on two charges arising from his participation in a mortgage fraud scheme. On appeal,

he argues that his sentence should be vacated because of the disparity between the sentences that

he and his co-defendant Ravi Persaud received. For the reasons that follow, we vacate Esso’s

sentence and remand to the district court for resentencing.1 We assume the parties’ familiarity

with the underlying facts and procedural history.

       Esso and Persaud participated in a fraudulent scheme that operated through a mortgage

brokerage, GuyAmerican Funding Corp. (“GuyAmerican”), from 2006 to 2007. As part of the

scheme, GuyAmerican employees arranged loans by submitting false information to lenders,

including false information regarding the supposed buyers’ net worth, employment, income, and

plans to live in the homes. Esso, Persaud, and several other participants in the scheme were

indicted on July 26, 2010. The indictment charged both Esso and Persaud with one count of

conspiracy to commit wire fraud and bank fraud, in violation of 18 U.S.C. § 1349. Esso was also

charged with one count of bank fraud, in violation of 18 U.S.C. § 1344, for fraudulently

arranging a $600,000 home mortgage loan for a property in the Bronx. Persaud was charged

with three counts of bank fraud, in violation of 18 U.S.C. § 1344, for fraudulently arranging



       1
         In a separate opinion filed today, we affirm Esso’s conviction on the two mortgage
fraud charges.

                                                2
three home mortgage loans with a total value of $1,830,000 for two properties in Queens and one

in Brooklyn.

        Esso and Persaud were tried together, and on August 26, 2010, the jury convicted both of

them on all counts on which they were charged in the indictment. On February 4, 2011, Esso

was sentenced to a below-Guidelines sentence of a year and a day in prison, which the District

Court justified, in part, by noting that Esso was the “least culpable” participant in the scheme.

Three weeks later, on February 25, 2011, the district court sentenced Persaud to a below-

Guidelines sentence of “12 weekends in intermittent community confinement.”2 After Persaud

was sentenced, Esso filed a motion for resentencing that challenged the disparity between his

sentence and Persaud’s. The district court denied that motion on the ground that it lacked

jurisdiction to resentence Esso, while noting that it was “tempt[ed]” to say that it “would have

given [Esso] a lower sentence” if it had the authority to resentence him.

        Esso does not challenge the substantive reasonableness of his sentence, which was less

than one-third of the bottom of the applicable Guidelines range. He does, however, raise a

procedural challenge, arguing that he, as the “least culpable” defendant, should not have received

a longer sentence than his more culpable co-defendant, Persaud.

        In reviewing a sentence, we must “ensure that the district court committed no significant

procedural error, such as . . . failing to consider the [18 U.S.C. § 3553(a)] factors . . . or failing to

adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007); see also

United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Under Section 3553(a)(6),

district courts must consider “the need to avoid unwarranted sentence disparities among


        2
            The government did not appeal Persaud’s sentence.

                                                   3
defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. §

3553(a)(6); see also Kimbrough v. United States, 552 U.S. 85, 108 (2007). Although the main

purpose of Section 3553(a)(6) is “to minimize nationwide disparities,” we do not “object to

district courts’ consideration of similarities and differences among co-defendants when imposing

a sentence.” United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on other

grounds by Cavera, 550 F.3d at 191; see also United States v. Frias, 521 F.3d 229, 236 (2d Cir.

2008) (“We have held that section 3553(a)(6) requires a district court to consider nationwide

sentence disparities, but does not require a district court to consider disparities between

co-defendants.”). Where, as here, a sentencing court opts to compare the relative culpability of

co-defendants, we accord the court broad discretion so long as the factors it considers “‘are not

inconsistent with those listed in § 3553(a) and are logically applied to the defendant’s

circumstances.’” Wills, 476 F.3d at 110 (quoting United States v. Parker, 462 F.3d 273, 277 (3d

Cir. 2006)). In addition, we have recognized that sentencing disparities among co-defendants are

not “unwarranted” under Section 3553(a)(6) where the defendants are not “similarly situated.”

United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006).

       In this case, the district court explicitly compared Esso to Persaud and the other

participants in the scheme, finding that Esso, who served as a loan officer at GuyAmerican, was

the “smallest player” in the conspiracy and the “least culpable.” As the court noted:

               He was not a lawyer, he did not make millions of dollars in
               commissions, he did not run the real estate agency, he did not
               produce dozens of straw buyers, and he did not flip properties.

Despite this comparison, the district court did not explain why, if Esso was less culpable than

Persaud, Esso received the longer sentence. The reason for that disparity is far from apparent on


                                                 4
the record before us. Without engaging in an exhaustive summary of the record, we note the

following: Persaud was a central figure in the conspiracy, serving as the closing attorney in

numerous fraudulent transactions. Persaud was convicted of two more bank fraud charges than

Esso was, and was subject to a higher recommended prison term under the Sentencing

Guidelines (46 to 57 months rather than 37 to 46 months). Both Esso and Persaud were married,

middle-aged, and first-time offenders, and the district court found that neither of them posed a

threat to public safety. Both faced serious collateral consequences from conviction, with

Persaud facing the loss of his law license and Esso, who is not a United States citizen, facing

removal to his native country, the Ivory Coast. At sentencing, each received letters of support,

although, as the government notes, Persaud received a larger number of such letters.3

       We recognize the difficulty that district courts sometimes face in coordinating separate

but related sentences. At the time of Esso’s sentence, Persaud had not yet been sentenced, and

so the district court had no opportunity or occasion to compare Esso’s sentence to that of a co-

defendant who had not yet been sentenced. It may have been the court’s intention to sentence

Esso at the low end of the range of co-defendants, only to discover reasons, in sentencing

Persaud, why the range should be changed. Alternatively, it may be the case that upon

sentencing Persaud, the court found that Esso was not, as had previously been assumed, the least

culpable, or discovered reasons why factors unique to Persaud’s character or circumstances

suggested that he should receive a lower sentence than Esso, even though Esso was less



       3
           At the same time, however, the sentencing submissions revealed that Persaud was twice
disciplined by the Grievance Committee for misconduct as a lawyer in connection with real
estate transactions, while Esso received what the district court described as an “enthusiastic
letter” of support from the restaurant at which he worked.

                                                 5
culpable. The court’s later comment, in response to Esso’s motion, suggests that the court itself

would have either reconsidered or explained its sentence if it had jurisdiction to do so.

       In light of the district court’s failure to explain why Esso received a longer sentence than

Persaud despite Esso’s lesser culpability, and the fact that the two were similarly situated in

numerous respects, we vacate Esso’s sentence and “remand to the district court so that it can

either explain what it was trying to do, or correct its mistake and exercise its discretion anew.”

Cavera, 550 F.3d at 190. Thus, on remand, the district court may reimpose the same sentence

upon Esso if it explains why such a sentence is appropriate in light of the Sentencing Guidelines

and the other Section 3553(a) factors, including Section 3553(a)(6). See Fernandez, 443 F.3d at

32 (noting that a district court is not required to give Section 3553(a)(6) “determinative or

dispositive weight in [any] particular case, inasmuch as it is only one of several factors that must

be weighted and balanced by the sentencing judge”). Alternatively, the court may, in its

discretion, reduce Esso’s sentence in light of the lower sentence that his less-culpable co-

defendant received if it believes such a reduction is warranted. We emphasize that we neither

express nor imply any opinion as to the course the court should follow.

       Accordingly, we VACATE the judgment of sentence of the district court and REMAND

for resentencing.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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