Sunday, February 24th, 2008

Russian Revolution

United States v. Verkhoglyad, No. 05-4210-cr (2d Cir. February 14, 2008) (Cabranes, Raggi, CJJ, Berman, DJ)

Oleg Verkhoglyad was a Russian mobster who repeatedly received lenient treatment. First, after cooperating in a 1998 extortion case, he received a 5K1.1 departure. Six months after getting out of jail, he violated his supervised release by committing a multitude of new offenses. He pled guilty to the supervised release violation and a new felon-in-possession charge, then talked his way into another cooperation agreement. After nearly four years of working with the government, he received another 5K letter. This time, he got 4 years’ probation on the gun charge and 3 years of supervised release on the supervised release violation. Within weeks of his sentencing, he violated his supervision by using marijuana and leaving the district without permission. This time, however, his luck ran out. The district judge slammed him, giving him 57 months’ imprisonment, the top of the range he originally faced on the gun charge, even though the Guidelines recommended only 5 to 11 months.

He appealed this sentence, claiming it was both procedurally and substantively unreasonable, but the circuit affirmed. On its surface, the opinion treads no new ground, since it was obvious that the district court did all that 3553(a) requires.

However, lurking below the surface of this opinion is a mini-revolution. Just last year, in United States v. Sindima, 488 F.3d 81 (2d Cir. 2007), the court reminded us all that the primary purpose of a violation of probation sentencing is to punish the breach of trust, and not the conduct itself. Here, the court partially overrules Sindima, without really saying so, by holding that a probation violation sentencing is in fact a resentencing on the underlying offense. This decision is thus clearly intended to make above-Guideline sentences easier to impose in probation violation cases, despite the seemingly opposite approach the court took in Sindima. Worse still, the court does not really deal with the tension it has created with Sindima, other than to assert that Sindima was not supposed to “ignore the fact that revocation of probation requires a defendant to be resentenced on the crime of conviction, and not simply on the breach of trust.”

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