Sunday, August 14th, 2011

What’s In A “Same”?

United States v. Feldman, No. 10-2275-CR (2d Cir. August 1, 2011) (McLaughlin, Pooler, Sack, CJJ)

Defendant Feldman sought appellate review of four sentencing enhancements. The government argued that the court should not review them because the district court had indicated that it would impose “the same sentence” even without some of the errors. The circuit rejected this argument, reviewed the claims, found no error, and affirmed.


The facts of the case are particularly unpleasant. Feldman was a psychiatrist who, in the 1990’s, operated mental health facilities in Florida. These facilities proved to be Medicare/Medicaid fraud mills and, just as Feldman was negotiating a plea agreement, he fled to the Philippines.

There, he set up an even more egregious scheme. Through a website called, he fraudulently offered kidney and liver transplants in the Philippines. Desperate patients and their families wired him tens of thousands of dollars and traveled to the Philippines, but did not receive what they were promised. Eventually, Feldman was deported from the Philippines and prosecuted in the Northern District of New York, the locus of the bank accounts to which the victims wired their money. In NDNY, he was sentenced on both the transplant case and the Florida conduct. With enhancements, the district court found that the rage was 151 to 188 months, and sentenced Feldman at the top.

During the hearing, the court noted that “even if some of my rulings … are inaccurate, there is no question that I still would give the same sentence I am about to give.” Citing this, the government argued in the circuit that the court “should decline to consider Feldman’s claims of procedural error at sentencing.”

The Circuit’s Decision

While noting that a guideline error can be harmless if “it could not have supported any lesser sentence,” the court held that the district court’s “same sentence” statement did not moot Feldman’s claims of error. The key, according to the circuit is ambiguity. Unless there is “unambiguous indication to the contrary,” the court will not assume that a sentence will be the same absent a guideline error. The court did not think that the district court’s “same sentence” statement was unambiguous because it referred only to “some” of the challenged enhancements “without stating which enhancement – or which combination of enhancements – would not affect Feldman’s sentence.”

While this disposed of the matter, the court went on to discuss the policy considerations. Given the importance of the guideline range to the selection of the sentence, the court “cannot lightly assume that eliminating enhancements from the guidelines calculation would not affect the sentence.” The court will be “especially wary of making such an assumption” where the appellate claims would have a dramatic effect on the sentence. Here, for example, if Feldman had prevailed on all of his arguments the range would have been 63 to 78 months, less than half of the range calculated by the district court.

Finally, the court noted that district courts “generally should not try to answer the hypothetical question of whether or not it definitely would impose the same sentence on remand if this Court found particular enhancements erroneous.” Criminal sentences cannot and should not be “exempted from procedural review with the use of a simple incantation.”

That said, however, the court found no merit to any of Feldman’s appellate claims. Those claims – objections to characterizing his website as mass marketing, the loss amount, the risk of death enhancement and obstruction of justice – tread no new ground, and the court’s resolution of them is not summarized here.

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