United States v. Sabarese

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Precedential or Non-Precedential: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:
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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.
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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).
8