Wednesday, March 23rd, 2016

Circuit Affirms Higher Sentences Imposed After Remand and Below-Guidelines Sentence Imposed on Cooperator

Two summary orders today.

First, United States v. Tanaka: To understand this one, a short backstory is needed: In 2010, Mr. Tanaka and Mr. Vilar were sentenced to 60 months and 108 months of prison time, respectively. Both were fined $25,000. Fast forward to 2014, when both men were resentenced after a successful appeal. But, things weren’t better this time around: Mr. Tanaka got 72 months and Mr. Vilar, 120 months. The fine was increased by 400% to $ 10 million. What changed in between? Mr. Tanaka and Mr. Vilar argued nothing…except that they were successful on appeal and had defended themselves against a government civil suit. They argued their increased sentences were vindictive.

However, the Second Circuit disagreed. The court found that their increased sentences were not based on the exercise of their legal rights, but on their “anti-social conduct following their initial sentence.” The court affirmed the resentence.

But, good news for the defendants, the court vacated the $10 million fines, one of which exceeded the statutory maximum. The court held that both fines were improperly imposed based on the “possibility of future assets.” In fact, at sentencing, the record didn’t show they could pay those fines: both men were indigent, over 70 years old, and represented by court-appointed attorneys.

No surprises in the second summary order today: in United States v. Xu, the court found that a below-guidelines sentence was reasonable. The court rejected Mr. Xu’s arguments that the district court didn’t sufficiently consider his cooperation with the government in sentencing him to 12 months in prison for an immigration fraud conviction (the guidelines range was 37 to 46 months). The circuit pointedly wrote that the sentence “amounts to less than one day per fraudulent application.” It was also unmoved by Mr. Xu’s argument that there was an unwarranted disparity between his sentence and his co-defendant’s 4-month sentence.

-Allegra Glashausser

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