Thursday, May 4th, 2006

Maximum Sentence upon Revocation of Probation Is Same as Maximum for Original, Underlying Offense

United States v. Goffi, Docket No. 05-3329-cr (2d Cir. May 4, 2006) (Kearse, Sack, Stanceu (by desig’n)): The Circuit finally holds what most have long assumed — that the maximum sentence upon revocation of probation (as opposed to supervised release) is the maximum for the original, underlying offense. Surprisingly, this was technically an open question in the Circuit until this decision, in which the Second joins many other circuits in so holding. Op. 9-10. Those interested in the statutory parsing can look to pages 7 to 8.

In this case, Goffi was originally sentenced to 5 years’ probation after pleading guilty to embezzlement. While on probation, he pleaded guilty in state court to child molestation. The same misconduct led to revocation of probation in federal court, upon which he was sentenced to 24 months’ imprisonment. Though this sentence exceeds the 6 to 12 months Guidelines range Goffi originally faced for the embezzlement conviction (when the Guidelines were mandatory), and though the court did not indicate an intent to depart upwardly, it was well below the 10-year statutory maximum for embezzlement (i.e., the maximum set forth in the U.S. Code — not the Blakely “statutory maximum”), and thus lawful.

Goffi also argued that the district court violated 18 U.S.C. § 3553(c)(2) in imposing the 24-month sentence, which was 6 months greater than the top of the Chapter 7 “policy statement” range, by failing to articulate a “specific reason” for this sentence. The court had stated only that it imposed this sentence “because of the criminal conduct that gave rise to the violation and the need to protect society.” Op. 5.

The Circuit rejected this argument, finding that even this bare-bones statement was sufficient. As it explains: “Here, the district court explained that it was sentencing Goffi to a term of imprisonment in excess of that recommended by the pertinent policy statement because of the seriousness of his offenses and the need to protect society. The district court thus explained ‘the specific reason for the imposition of a sentence different from that described.'” Op. 6 (quoting § 3553(c)(2)).

Nonetheless, in a truly pointless gesture, the Circuit remands the case for amendment of the written judgment because the court failed to comply with § 3553(c)(2)’s “written statement” requirement. See 18 U.S.C. § 3553(c)(2) (requiring the “specific reasons” orally stated to also be “stated with specificity in the written order of judgment”). Though the Circuit had earlier ruled that failure to abide by the written-statement requirement does not require remand where the sentence is otherwise reasonable, United States v. Fuller, 426 F.3d 556, 567 (2d Cir. 2005), the Panel here explained that “it is the better course, while affirming the substance of the judgment of the district court, to return the case to the district court for the sole purpose of amending its written judgment to comply with Section 3553(c)(2).” Op. 6 n.2. Oh how sweet it is, when Justice is served.

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