                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
JOE SABINO,                                  )   SOUTHERN DISTRICT OF OHIO
                                             )
       Defendant-Appellant/Cross-            )
       Appellee.                             )




       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.
Nos. 04-3214/3327


       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.




                                             -2-
