United States v. Benjamin, No. 05-3677 (2d Cir. 2007)

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05-3677-cr United States v. Benjamin 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: February 8, 2007 Docket Nos. Decided: September 27, 2007) 05-3677-cr(L), 05-4006-cr(XAP), 05-4009-cr(CON) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA, Appellee-Cross-Appellant, v. GREG HIRLIMAN, JIMMY LEON, also known as JIMMY DALE, AMOS KEITH, JEFFREY EVANS, RONALD WILSON, EDWARD INGENITO, also known as BUSTER, JOSEPH SCICCHITANO, CARLOS WIGGINS, JEFF BELLAMY, JOHN BRYANT, SHERRY MARIE BOULA, OMAR T. FERGUSON, JAMIE FRIEL, JAMES V. HAMILTON, also known as BLACK, GARY HANSON, THOMAS JOHNSON, also known as T, KIM KOHL, DAVID SHARP, EARL THOMAS, also known as SLIM, LORRAINE BENJAMIN, SCOTT CRANDALL, SUSAN FISHER, KEVIN MARTINELLI, LAMONT PARKS, TERRI PEARMAN, MICHAEL RHODES, DEMETRIOUS SAYLES, Defendants, DONALD BENJAMIN, JR., also known as DUCKY, NEAL BENJAMIN, Defendants-Appellants-Cross-Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, WALKER, and SACK, Circuit Judges. Neal and Donald Benjamin appeal their sentences for various 40 drug-related offenses, entered in the United States District 41 Court for the Western District of New York (Elfvin, Judge). 42 government cross-appeals, arguing that Judge Elfvin failed BOTH 1 The 1 to give notice of his decision to depart from the Sentencing 2 Guidelines and to provide any explanation of his decision to 3 depart, as required by federal statute and by the order of this 4 court in a previous appeal in this matter. 5 court once again did not explain its reasons for the sentences 6 imposed, we vacate the sentences and remand with instructions 7 that the case be assigned to a different judge for resentencing. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Because the district JAMES P. KENNEDY, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York, on the brief), Buffalo, New York, for Appellee-Cross-Appellant. JOHN J. LAVIN, John J. Lavin, P.C., Buffalo, New York, for DefendantAppellant-Cross-Appellee Neal Benjamin. VINCENT E. DOYLE III, Connors & Vilardo, LLP, Buffalo, New York, for Defendant-Appellant-CrossAppellee Donald Benjamin. WINTER, Circuit Judge: Neal and Donald Benjamin appeal their sentences imposed by 27 Judge Elfvin for various drug related offenses.1 28 cross-appeals, arguing that the district judge violated 18 U.S.C. 29 § 3553 and a direction of this court in a previous appeal of this 30 matter, United States v. Evans, 352 F.3d 65 (2d Cir. 2003), by 31 failing for a second time to give notice of his decision to 32 deviate from the Sentencing Guidelines ( U.S.S.G. ) and to 33 provide an explanation for his non-Guidelines sentences. 2 The government 1 Because we agree with the government, we vacate the 2 sentences and remand with instructions that the case be assigned 3 to a different judge for resentencing. 4 BACKGROUND 5 The relevant facts are exceedingly simple. Between 1994 and 6 1997, the Benjamin brothers ran a drug distribution ring in and 7 around Olean, New York, along with dozens of co-conspirators. 8 Id. at 67-68. 9 and employed numerous individuals, including several youngsters 10 11 The ring dealt in marijuana, cocaine, and crack under age eighteen. Id. at 68. The Presentence Investigation Reports ( PSR ) recommended an 12 offense level of 46 for each defendant and a criminal history 13 category of VI, the highest possible level, yielding a range of 14 life imprisonment under the U.S.S.G. 15 the individual offenses for which the Benjamins were convicted 16 carried a life sentence, the PSRs invoked U.S.S.G. § 5G1.2(d), 17 which provides that sentences shall be served consecutively up to 18 the guidelines sentence. 19 Donald s sentences to achieve a 240-year sentence, and Neal s to 20 produce a 40-year sentence. Id. at 70. Because none of Thus, the PSRs recommended stacking Id. at 70-71. 21 At sentencing, on April 12, 2002, the district judge 22 accepted the calculations of the PSRs, but departed downwards 23 from the Guidelines, sentencing Donald to three 10-year terms 24 (for a total of 30 years) and Neal to 20 years. 3 Id. The judge 1 provided no coherent explanations for these departures. 2 regard to Donald s sentence, the district judge said only I must 3 have downward departed . . . to get those three segments of ten 4 years. 5 to assume that I have departed. 6 Id. At 72. With As to Neal s sentence, he said I would have Id. The Benjamins and the government appealed. The Benjamins 7 challenged both their convictions and their sentences, while the 8 government argued, inter alia, in its cross-appeal that the 9 district court committed error by not giving notice of a possible 10 departure and by failing to articulate his reasons for departing. 11 We rejected all of the Benjamins arguments, in large part by 12 summary order. 13 2003). 14 found that the district judge had made no findings of fact or 15 conclusions of law justifying [his] departures and thus [left] us 16 at a total loss in reviewing defendants sentences. 17 F.3d at 72. 18 remanded for resentencing in accordance with 18 U.S.C. § 19 3553(c)(2) and Sentencing Guidelines 5K2.0[,] and direct[ed] 20 the district court to provide clear notice to both parties of any 21 contemplated departure. 22 United States v. Evans, 82 Fed.Appx. 726 (2d Cir. By way of a published accompanying opinion, the panel Evans, 352 Accordingly, the panel vacated the sentences and Id. The district court again provided no notice of any intention 23 to depart or otherwise deviate from the advisory Guidelines 24 ranges prior to the resentencing hearings. 4 At Donald s 1 resentencing, the court heard from the defense and the 2 prosecution, and then announced, I adhere to that sentence, 360 3 months imprisonment. 4 the prosecutor asked how the court had arrived at that sentence, 5 the judge said I ll write you a letter and brought the hearing 6 to a close. 7 his sentence in his written judgment, other than to check boxes 8 indicating that he adopt[ed] the presentence report and the 9 Guideline[s] application[] without change but did not apply the D. Benjamin Resentencing Tr. at 23. Id. at 24. When Judge Elfvin provided no explanation of 10 federal sentencing guidelines at all in this case and imposed a 11 discretionary sentence. 12 A month later, Neal was resentenced. At the outset of the 13 hearing, the defense attorney asked about the letter the district 14 judge had promised to explain Donald s sentence. 15 the judge asked his courtroom deputy to give [him] a note to 16 remind [him] about that. 17 According to the government, no such explanatory note has been 18 received. 19 In response, N. Benjamin Resentencing Tr. at 3. The district court again provided no advance notice of any 20 intention to deviate from the Guidelines prior to Neal s 21 resentencing. 22 behavior and fearing another overturning of the sentence, Neal s 23 attorney came to the hearing with a proposed notice for the 24 judge to read into the record. Evidently anticipating the judge s enigmatic The notice was a brief summary 5 1 of several of the factors a sentencing judge is required to 2 consider under § 3553, and read, in full: 3 4 5 6 7 8 9 10 11 12 13 14 15 Notice is hereby given to the government and defendant, Neal Benjamin, that the Court intends to depart from the advisory guidelines sentence for the following reasons: The proposed sentence is sufficient but not greater than necessary to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to protect the public from further crimes of the defendant, to afford adequate deterrence to criminal conduct, and to avoid sentencing disparity. 16 Judge Elfvin duly read the notice into the record. 17 The prosecutor objected, suggesting that this did not constitute 18 proper notice. 19 the judge announced that [t]he sentence I impose, Neal, is that 20 you re going to be sentenced to a period of incarceration of 240 21 months, period, N. Benjamin Resentencing Tr. at 15, though he 22 once again adopted the calculations of the PSR -- which provided 23 for a 40-year sentence -- in his written judgment. 24 Id. at 8. After hearing from the defense and prosecution, When, as before, the prosecutor pressed the court to explain 25 this departure, defense counsel volunteered that the reasoning 26 was contained in the notice read into the record. 27 judge agreed with this suggestion, adding that he had considered 28 Neal s case along with his brother s, and everything together, 29 for the long period of time that the case has been in front of 30 me. The district I think everything is adequately on the record. 6 N. 1 Benjamin Resentencing Tr. at 17. 2 judge stated that [t]he Court imposed a non-guideline sentence 3 pursuant to the factors set forth in 18 U.S.C. § 3553 as read 4 into the record at sentencing. 5 6 In his written judgment, the Once again, both sides appealed. DISCUSSION Because of our disposition of the cross-appeal, the 7 sentences must be vacated and the case remanded to another judge 8 for yet another resentencing. 9 Benjamins claims at this time. 10 We therefore do not address the Title 18 U.S.C. § 3553(c) requires a sentencing court to 11 state the reasons for imposing a particular sentence. 12 in relevant part, that [t]he court, at the time of sentencing, 13 shall state in open court the reasons for its imposition of the 14 particular sentence . . . . 15 sentence is outside the range described in the Sentencing 16 Guidelines, the court must also provide the specific reason for 17 the imposition of a sentence different from that described [in 18 the Guidelines], which reasons must also be stated with 19 specificity in the written order of judgment . . . . 20 3553(c)(2). 21 18 U.S.C. § 3553(c). It reads, If the Id. § While United States v. Booker, 543 U.S. 220 (2005), rendered 22 the Sentencing Guidelines advisory rather than mandatory, it did 23 not alter a sentencing judge s obligations under Section 3553(c). 24 [T]he Supreme Court left unimpaired Section 3553(c), which 7 1 requires a district court to state in open court the reasons for 2 its imposition of the particular sentence and . . . state in 3 writing with specificity the reasons for imposing a sentence 4 outside the calculated Guidelines range. 5 Crosby, 397 F.3d 103, 116 (2d Cir. 2005) (quoting 18 U.S.C. § 6 3553(c)). 7 provisions of § 3553(c) . . . regarding [the explanation of 8 reasons for] departures from recommended sentencing ranges 9 constitutes plain error, even when the length of the resulting United States v. A court s failure to comply with the general 10 sentence would otherwise be reasonable. 11 Fuller, 426 F.3d 556, 565 (2d Cir. 2005) (quoting United States 12 v. Lewis, 424 F.3d 239, 246 (2d Cir. 2005)).2 13 United States v. The plain fact is that, with regard to Donald, the district 14 judge, although accepting the PSR calculations, once again failed 15 to give notice of a possible deviation and provided no 16 explanation whatsoever for his decision to impose a non- 17 Guidelines sentence. 18 explanation, he simply replied I ll write you a letter. 19 Benjamin Resentencing Tr. at 24. 20 the promised letter -- which he did not -- it would not have 21 satisfied his obligation to state in open court the reasons for 22 imposing the particular sentence. 23 the district judge explain his decision in the written judgment, 24 which simply stated that he adopt[ed] the presentence report and When the prosecutor asked for an D. Even if the judge had written 8 18 U.S.C. § 3553(c). Nor did 1 the Guideline[s] application[] without change but did not apply 2 the federal sentencing guidelines at all in this case and imposed 3 a discretionary sentence. 4 falls short of the requirement to state reasons that is set forth 5 in § 3553(c), no matter what the required level of specificity 6 may be. Lewis, 424 F.3d at 245 (internal quotation marks 7 omitted). As a result, Donald s sentence must be vacated. 8 9 Stating no reasons at all plainly Neal s sentencing was as perfunctory as Donald s. It was not preceded by a notice of a possible deviation or accompanied 10 by a statement of reasons, save for the reading -- without 11 evident embarrassment -- of the defense-prepared notice, which 12 was provided at the hearing and was simply a statement of several 13 of the factors in Section 3553(a). 14 the PSR calculations, the judge then imposed a sentence 20 years 15 below the Guidelines recommendation. 16 that the notice, written by defense counsel before the 17 resentence was known, was hardly the product of the judge s own 18 thinking, it made no attempt to explain how the individual 19 Section 3553(a) factors applied to Neal s particular case and led 20 to the sentence imposed. 21 findings of fact or conclusions of law justifying [his] 22 departures and thus leaves us at a total loss in reviewing 23 defendants sentences. 24 Although once again accepting Quite apart from the fact As before, the district judge made no Evans, 352 F.3d at 72. The district judge s behavior compels us to order that the 9 1 case be assigned to a different judge on remand. 2 reassignment to another judge may be advisable in order to avoid 3 an exercise in futility (in which) the Court is merely marching 4 up the hill only to march right down again. 5 Robin, 553 F.2d 8, 11 (2d Cir. 1977) (en banc) (internal 6 quotation marks omitted). 7 In general, United States v. Reassignments because of the failure of the district judge 8 to impose a proper sentence are uncommon, but it is not 9 unprecedented for a case to be remanded to a different judge 10 after a district court has twice used an improper sentencing 11 procedure. 12 Cir. 1972). 13 uncommon in the case of Judge Elfvin. 14 reassignment in less than two years based on his failure to give 15 notice of, and an explanation for, a departure in the original 16 sentencing proceeding and on a remand. 17 Toohey, 448 F.3d 542 (2d Cir. 2006), and United States v. 18 Sicurella, 2006 U.S.App. LEXIS 13546 (2d Cir. May 23, 2006) 19 (unpublished order). 20 Judge Elfvin had not explained a sentence of probation. 21 at 543. 22 had imposed probation because of his personal relationship with 23 the defendant when both were practicing law. 24 next appeal, we then remanded to a different judge. See United States v. Brown, 470 F.2d 285, 288-89 (2d We note, moreover, that reassignments are not This is the third case of See United States v. In Toohey, we had remanded twice because 448 F.3d At the third sentencing hearing, he explained that he 10 Id. at 544. On the Id. at 546. 1 In Sicurella, Judge Elfvin refused to explain his reasons for 2 imposing the sentence, stating on the second remand: 3 reflection here and with further reflection to come in the 4 future, I m going to continue the sentence of 70 months. 5 give it further reflection and if I change my mind, I ll let 6 everyone know. 7 little comment, the Sicurella panel determined that this 8 explanation failed to satisfy the requirements of § 3553(a) and 9 (c), and remanded, ordering reassignment to another judge. 10 2006 U.S.App. LEXIS 13546 at *3 n.2. Upon I will With This is, therefore, the third case in two years in which 11 Judge Elfvin failed in the initial sentencing proceeding to 12 comply with the requirements of notice and explanation for the 13 imposition of a non-Guideslines sentence and then, on remand, 14 failed to follow a direction of this court to comply with those 15 requirements. 16 willfulness. 17 being self-evident, we order reassignment to a different judge. This pattern of behavior is disturbing evidence of The need to remove Judge Elfvin from this case 18 CONCLUSION 19 For the foregoing reasons, the sentencing orders of the 20 district court are vacated and the case is remanded with 21 instructions that it be assigned to a new judge for resentencing. 22 23 24 11 1 FOOTNOTES 2 1. Donald Benjamin was convicted of (1) one count of conspiracy to possess with intent to distribute and conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 as it relates to 21 U.S.C. § 841(a)(1); (2) five substantive distribution counts, in violation of 21 U.S.C. § 841(a)(1); and (3) one count of using a minor to distribute controlled substances in violation of 21 U.S.C. § 861(a)(1) and (2). Neal Benjamin was convicted of one count of the same conspiracy offense and one count of possession with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). 2. Evans, 352 F.3d at 68. Nor did Booker alter the requirement that a district court provide parties with notice of possible departures and variances from the advisory Guidelines ranges. See Fed. R. Crim. P. 32(h). Although we did not decide until after Donald and Neal Benjamin were resentenced that the notice requirement applied equally to non-Guidelines sentences as to departures, United States v. Anati, 457 F.3d 233, 236-37 (2d Cir. 2006), the district court could have been under no misapprehensions regarding its obligation to inform the parties of any intent to impose a sentence outside the applicable Guidelines ranges in light of our 12 admonitions in Evans, see Evans, 352 F.3d at 72. 13

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