United States v. Desnoyers, No. 11-5194 (2d Cir. 2013)
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Defendant was convicted of offenses arising from his malfeasance as an air monitor for asbestos abatement projects. Defendant was sentenced to five years' probation after the district court granted his motion under Federal Rule of Criminal Procedure 29 to dismiss the conspiracy charge. On appeal, the court reinstated the conviction for the conspiracy charge and remanded for resentencing. The court concluded that the sentence was procedurally unreasonable and vacated and again remanded for resentencing.
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11-5194-cr United States v. Desnoyers 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 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: December 17, 2012 Decided: February 14, 2013) Docket No. 11-5194-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Plaintiff-Appellant, - v.MARK DESNOYERS, Defendant-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CALABRESI, and LEVAL, Circuit Judges. The United States appeals from a judgment entered in 30 the United States District Court for the Northern District 31 of New York (Hurd, J.) re-sentencing Mark Desnoyers to five 32 years probation and assessing $45,398 in restitution. 33 Desnoyers was convicted of offenses arising from his 34 malfeasance as an air monitor for asbestos abatement 35 projects in and around Plattsburgh, New York. 36 was initially sentenced to five years probation (and Desnoyers 1 restitution of $34,960) after the district court granted his 2 motion under Rule 29 to dismiss the conspiracy charge (Count 3 I). 4 remanded for re-sentencing. 5 conclude that the sentence was procedurally unreasonable; we 6 therefore vacate and again remand for re-sentencing. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 On appeal, we reinstated the conviction for Count I and For the following reasons, we RAJIT S. DOSANJH, (Craig A. Benedict, on brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse New York, for Appellant, United States of America. JOHN B. CASEY, Dreyer Boyajian LLP, Albany, New York, for Appellee, Mark Desnoyers. DENNIS JACOBS, Chief Judge: The United States takes this appeal from the sentence 22 imposed following our reinstatement of a count of conviction 23 dismissed by the district court under Federal Rule of 24 Criminal Procedure 29. 25 imposition of the same term of probation and an increase in 26 restitution of about $10,000. The re-sentencing has resulted in 27 Desnoyers was convicted by a jury in the United States 28 District Court for the Northern District of New York (Hurd, 29 J.) of offenses arising from his malfeasance as an air 2 1 monitor for asbestos abatement projects in and around 2 Plattsburgh, New York. 3 motion to vacate Count I--the conspiracy charge--left four 4 substantive violations. 5 The grant of Desnoyers s post-trial On the government s initial appeal, we reinstated the 6 jury verdict, and remanded for re-sentencing. 7 v. Desnoyers ( Desnoyers I ), 637 F.3d 105, 112 (2d Cir. 8 2011). 9 United States On remand, the district court imposed the same five- 10 year term of imprisonment and increased the restitution 11 amount to $45,398. 12 procedural and substantive reasonableness of the sentence, 13 arguing mainly that the district court improperly excluded 14 new evidence that was not submitted at the initial 15 sentencing. 16 calculation. The government now attacks the The government also contests the restitution 17 For the reasons that follow, we conclude that the 18 sentence was procedurally unreasonable; we therefore vacate 19 and remand to the district court for re-sentencing. 20 21 22 23 BACKGROUND Desnoyers s conviction arose out of his work as an air monitor on ten asbestos removal projects in 2005 and 2006. 3 1 An air monitor conducts air sampling to ensure that the 2 asbestos was removed properly and that no asbestos fibers 3 remain suspended in the air. 4 56-17.8. 5 post-trial and reinstated after appeal arises from eight 6 asbestos removal projects that Desnoyers conducted together 7 with his codefendants: John Wood; one of Wood s associates, 8 Curtis Collins; and one of Desnoyers s employees, Tom 9 Marble. See N.Y.S. Indus. Code Rule The conspiracy count (Count I) that was dismissed Wood, Collins, and Marble all testified at trial 10 that abatement at these jobs was performed improperly: The 11 asbestos was ripped out haphazardly causing asbestos fibers 12 to fill the air; the debris was carried out in plastic bags 13 covered in asbestos dust; and chunks of asbestos debris were 14 left in the work area. 15 Desnoyers take air samples, and Wood testified that 16 Desnoyers assured Wood that the air samples w[ould] come 17 back clean immediately after the work concluded. 18 316, Sept. 10, 2008. 19 back clean despite large amounts of loose asbestos 20 littering the properties. Marble testified that he never saw Trial Tr. The air samples did, in fact, come 21 Two other counts of conviction arise from the same rip 22 and run pattern: a violation of the Clean Air Act (Count V) 23 at a commercial building in Oneonta, New York, the so-called 4 1 Da Vida project; mail fraud (Count VI) in connection with 2 a project at the High Peaks Hospice ( Hospice ) in Port 3 Henry, New York; and making false statements to the 4 Environmental Protection Agency ( EPA ) (Counts XII, XIII, 5 and XIV) concerning two of the projects giving rise to the 6 conspiracy count. 7 The jury verdict, rendered on September 19, 2008, 8 convicted Desnoyers on Counts I, V, VI, XII, and XIII.1 9 district court granted Desnoyers Rule 29 motion for a The 10 judgment of acquittal as to Count I only. 11 Desnoyers, No. 06-CR-494, 2009 WL 1748730 (N.D.N.Y. June 19, 12 2009). 13 United States v. At sentencing on December 18, 2009, the district court 14 calculated Desnoyers s offense level using the fraud section 15 of the United States Sentencing Guidelines Manual 16 ( U.S.S.G. or Guidelines ), U.S.S.G. § 2B1.1. 17 calculated the loss amounts under U.S.S.G. § 2B1.1(b)2 as 18 $34,960, which was the contract value of the Hospice and 19 Da Vida projects plus the estimated clean-up cost for the 1 The court The jury acquitted Desnoyers on Count XIV. 2 Section 2B1.1 provides that the sentencing range be determined in part by the amount of loss that a defendant causes. 5 1 Hospice; the Da Vida victim provided no clean-up estimate. 2 This yielded a six-level increase in the base offense level. 3 U.S.S.G. § 2B1.1(b)(1)(C). 4 The court accepted the Probation Office s 5 recommendations for sentencing enhancements except for a 6 two-level enhancement under U.S.S.G. § 3B1.1(c) for 7 Desnoyers s role as an organizer of conduct involving fewer 8 than five participants. 9 twenty-one and a criminal history category of I, Desnoyers With a total offense level of 10 was subject to a Guidelines range of 37 to 46 months 11 imprisonment. 12 A non-Guidelines sentence (five years probation and 13 $34,960 restitution) was imposed on the grounds that 14 Desnoyers was a novice in the asbestos removal business, 15 that he had been duped and misled by Wood and Collins, 16 Sentencing Tr. 26, Dec. 18, 2009, that he was doing 17 creditable work at the New York State Department of Mental 18 Retardation and Developmental Disabilities helping disabled 19 people get services, and that he had performed similar work 20 at the Advocacy Resource Center. 6 1 On the government s appeal, we reversed the grant of 2 the Rule 29 motion and remanded with instructions to 3 reinstate the jury verdict, enter a judgment of conviction 4 on the conspiracy count, and resentence Desnoyers 5 accordingly. 6 Desnoyers I, 637 F.3d at 112. Before re-sentencing, the government provided the 7 Probation Office with loss amounts for the victims of the 8 eight projects listed in the reinstated Count I. 9 amounts included victims payments for the improper asbestos These loss 10 removal and clean-up cost estimates. Most of this 11 information had been provided to the district court for the 12 November 2009 sentencing of Wood, who was also convicted on 13 Count I. 14 Page, provided a bid for $19,800. 15 provided new information relevant to the loss amounts for 16 Counts V and VI: The Da Vida victim provided clean-up bids 17 totaling $43,786, and High Peaks Hospice increased its 18 clean-up total by $2,500. 19 submitted by the government would have brought Desnoyers s 20 total loss amount to $213,732.23. However, one estimate was new: One victim, Nancy The government also All of this new information 21 The government also submitted new affidavits from 22 people who knew Desnoyers from the Advocacy Resource Center 23 and had contacted the government after hearing news reports 7 1 of Desnoyers s first sentence: Lester Parker and Theresa 2 Garrow. 3 events that took place both before and after the original 4 sentencing -called into question Desnoyers s account of his 5 work at the Advocacy Resource Center. 6 submitted a joint letter dated September 16, 2011, sent by 7 employees of the Advocacy Resource Center to the director of 8 Sunmount Developmental Disability Services Organization, 9 where Desnoyers worked as a Medicaid Services Coordinator, The Parker and Garrow affidavits--which referred to The government also 10 detailing problems they had with Desnoyers. 11 letter referred only to conduct that took place after the 12 first sentencing. 13 2011, the district court ruled that it would not consider 14 evidence of events that took place before the initial 15 sentencing because there was insufficient justification for 16 the government s failure to introduce that evidence at the 17 first sentencing. 18 Evidently confused about the import of that ruling, the 19 government did not submit these documents at re-sentencing. 20 The joint At a telephone conference on October 11, Telephone Conf. Tr. 14, Oct. 11, 2011. Desnoyers was re-sentenced on October 28, 2011. First, 21 the loss amounts were recalculated, taking into account the 22 reinstated conviction for the eight projects that were the 23 subject of Count I. However, the government s suggested 8 1 loss amounts were not adopted. 2 that Desnoyers s loss amount for Count I should be no more 3 than the [restitution] amount ordered for co-defendant John 4 Wood, which was $111,259.83. 5 2011. 6 consider the clean-up estimate that Ms. Page submitted 7 subsequent to Wood s sentencing. 8 rulings on the loss amount that are not at issue on appeal,4 9 the district court calculated the loss amount for Count I as 10 11 Instead, the court decided Re-sentencing Tr. 8, Oct. 28, The court refused, without further explanation, to After making several other $80,245.83. Next, the district court decline[d] to consider 12 additional expense claims, clean-up quotes, submitted by 13 victims with regards to [Counts V and VI] that had not been 14 submitted by the government prior to [Desnoyers s] original 15 sentencing. 16 on all counts was $115,205.83. Id. at 10-11. The resulting total loss amount 4 Again, the court applied all Those rulings were as follows: First the district court said that the proposed loss amount included a bid for clean-up services for the Alexander residence project that was the highest of multiple estimates related to these expenses. Id. Second, the district court refused to include $3,175 in payments for background air sampling, pre-abatement air sampling, and environmental air sampling because that work is required prior to any asbestos removal project--whether legitimate or not. Id. at 10. Third, the district court refused to consider a loss of $3,600 from one project because the building was demolished after the asbestos was removed. Id. 9 1 the recommended enhancements except as to Desnoyers s role 2 as an organizer.5 3 25 and a Guidelines range of 57 to 71 months imprisonment. 4 Despite a Guidelines range that was substantially This resulted in a total offense level of 5 higher than the one computed at the original sentencing, the 6 district court sentenced Desnoyers to the same five-year 7 term of probation. 8 Desnoyers s conduct is unchanged from that which was 9 evaluated and considered at the time of the original The district court found that 10 sentence, and that [i]n the nearly two years since that 11 sentence, the defendant has been in full compliance with the 12 terms and conditions of probation. 13 also considered the factors under 18 U.S.C. § 3553(a), 14 relying on all of the statements that [it] made on the 15 record at the original sentence. Id. at 21. The court Id. 16 As for restitution, the district court began with the 17 $34,960 figure from Desnoyers s original sentence, finding 18 that this amount was appropriate for the projects underlying 19 Counts V and VI--without, however, discussing the upward 20 revisions submitted by the government for those projects. 21 With respect to Count I, the conspiracy count, the court 5 The district court did not explain this decision at the re-sentencing hearing. 10 1 included only the $4,275 that Desnoyers personally received 2 for those projects, reasoning that Desnoyers was less 3 culpable than his co-defendants and received just a small 4 percentage of the proceeds. 5 court refused to include any amount received by Desnoyers 6 for background and pre-abatement monitoring. 7 court declined to hold Desnoyers jointly and severally 8 liable for the clean-up costs related to Count I--totaling 9 $69,476--concluding that Desnoyers was responsible only for 10 his proportionate liability of those costs, which the court 11 calculated as nine percent, or $6,163,6 based on his 12 limited role and his receipt of a limited percentage of the 13 proceeds. 14 clean-up costs, which had been excluded from the loss 15 calculation, were included in the calculation of 16 restitution. 17 18 Id. at 12-13. Id. at 11. Moreover, the Similarly, the Without explanation, Ms. Page s The government now appeals the sentence, arguing that it is both procedurally and substantively unreasonable. 19 6 Nine percent of $69,476 is actually $6,252.84. 11 1 2 DISCUSSION On appeal, the government first challenges the 3 Guidelines range on the grounds that the district court (1) 4 miscalculated the loss amount by refusing to consider Ms. 5 Page s clean-up costs and the new information concerning the 6 losses suffered in Counts V and VI; and (2) refused to apply 7 the enhancement for being an organizer of the criminal 8 activity. 9 have been allowed to submit newly discovered character Second, the government contends that it should 10 evidence. 11 Guidelines sentence was substantively unreasonable. 12 Finally, the government argues that the restitution 13 calculation (1) failed to consider the new submissions for 14 Counts V and VI; (2) should have included payments made for 15 pre-abatement air sampling; and (3) should have imposed 16 joint and several liability for all the Count I losses. 17 Third, the government argues that the non- The government s arguments challenge the procedural and 18 substantive reasonableness of Desnoyers s sentence. 19 Procedural reasonableness is reviewed for abuse of 20 discretion. 21 Cir. 2008). 22 23 24 United States v. Cavera, 550 F.3d 180, 187 (2d A district court commits procedural error where it fails to calculate the Guidelines range . . . , makes a mistake in its Guidelines calculation, or 12 1 2 3 4 5 6 7 8 9 treats the Guidelines as mandatory. It also errs procedurally if it does not consider the § 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact. Moreover, a district court errs if it fails adequately to explain its chosen sentence, and must include an explanation for any deviation from the Guidelines range. Id. at 190 (citation omitted) (quoting Gall v. United 10 States, 552 U.S. 38, 51 (2007)). 11 legal application of the Guidelines is reviewed de novo. 12 United States v. Cossey, 632 F.3d 82, 86 (2d. Cir. 2011). 13 A sentencing court s Substantive reasonableness is also reviewed for abuse 14 of discretion, Gall, 552 U.S. at 51, and is judged in light 15 of the factors listed in 18 U.S.C. § 3553(a)(2), Cavera, 550 16 F.3d at 195. 17 this Court take[s] into account the totality of the 18 circumstances, giving due deference to the sentencing 19 judge s exercise of discretion, and bearing in mind the 20 institutional advantages of district courts. 21 F.3d at 190. 22 of a reviewing court is not to identify the right sentence 23 but, giving due deference to the district court s exercise 24 of judgment, to determine whether the sentence imposed falls 25 within the broad range that can be considered reasonable 26 under the totality of the circumstances. 27 Jones, 531 F.3d 163, 174 (2d Cir. 2008). In considering substantive reasonableness, Cavera, 550 Given the range of considerations, the duty 13 United States v. 1 2 I As to the Guidelines calculation, the government argues 3 that the loss amount was miscalculated and that the 4 organizer enhancement should have been applied. 5 A 6 The government alleges two mistakes in the district 7 court s loss amount calculation: failure to include the 8 Nancy Page clean-up estimate and failure to consider new 9 loss estimates for Counts V and VI. We review the district 10 court s factual findings with respect to the loss amount 11 under U.S.S.G. § 2B1.1 for clear error and its conclusions 12 of law de novo. 13 46 (2d Cir. 2000). See United States v. Carboni, 204 F.3d 39, 14 1 15 At re-sentencing, Nancy Page s clean-up costs (the 16 Page Estimate ) were omitted -without explanation--from the 17 loss amount for Desnoyers s reinstated conspiracy 18 conviction. 19 Desnoyers s codefendant Wood was sentenced, so the court did 20 not consider it when it previously calculated the losses for 21 the projects giving rise to Count I. 22 23 Ms. Page had submitted this estimate after The district court s failure to include the Page Estimate was clear error. The Guidelines require 14 1 calculation of the loss based on available information, 2 taking into account . . . the cost of repairs to damaged 3 property. 4 Guidelines require only a reasonable estimate of the loss, 5 the district court s estimate was not reasonable because no 6 explanation was given for omitting the Page Estimate. 7 U.S.S.G. § 2B1.1 cmt 3(C)(iii). While the Desnoyers argues that it was proper for the court to 8 refuse to consider the Page Estimate because it was not 9 available at the sentencing of co-defendant Wood. We reject 10 this argument. Since Wood was sentenced under the 11 environmental section of the Guidelines, U.S.S.G. § 2Q1.2, 12 not (as Desnoyer was) under the fraud section, there was no 13 loss amount calculation for Wood. 14 Desnoyers s loss calculation was the amount of Wood s 15 restitution, which played no role in the length of Wood s 16 sentence. 17 therefore inapposite. The starting point for The calculation for Wood s sentencing is 18 We vacate the Count I loss amount calculation and 19 remand with instructions for the district court to consider 20 the Page Estimate in calculating the loss amount for Count 21 I. 15 1 2 2 At re-sentencing, the district court refused to 3 consider new clean-up cost estimates for the Da Vida and 4 Hospice projects that had not been submitted at the original 5 sentencing. The district court did not explain its refusal. 6 [W]here the government knew of its obligation to 7 present evidence [at the original sentencing] and failed to 8 do so, it may not enter new evidence on remand, absent some 9 justification for failing to present the evidence in the 10 first instance. 11 69 (2d Cir. 2011). 12 for failing to submit the full loss amounts for the Da Vida 13 and Hospice projects, which were at issue at the initial 14 sentencing. 15 not err in refusing to consider these new estimates at re- 16 sentencing. 17 United States v. Archer, 671 F.3d 149, 168The government offered no justification Under Archer, therefore, the district court did The government argues that the district court s refusal 18 was error because it was required to re-sentence Desnoyers 19 de novo. 20 sentencing when the court of appeals reverses a conviction, 21 because a change in the constellation of offenses of 22 conviction alters the factual mosaic related to those Typically, the defendant is entitled to de novo 16 1 offenses. 2 Cir. 2009) (internal quotation marks omitted). 3 United States v. Rigas, 583 F.3d 108, 115 (2d Thus, de novo sentencing was required in Rigas. The 4 two defendants had been initially sentenced to fifteen and 5 twenty years imprisonment (respectively) on each of two 6 counts of bank fraud, to run concurrently. 7 at 112. 8 appeal, the district court held that it was not required to 9 resentence defendants de novo because [the overturned bank Rigas, 583 F.3d After one of the bank fraud counts was reversed on 10 fraud conviction] was a small part of the overall conviction 11 and ran concurrently with [the other bank fraud conviction], 12 which this Court upheld. 7 13 involve an effort to expand the record with evidence that 14 could have been submitted at the original sentencing. 15 Rather, the issue was whether the district court erred in 16 concluding that the reversal of one count did not require 17 reconsideration of the overall sentence. 18 19 Id. at 113. Rigas did not Id. Rigas prohibits a district court from automatically imposing the same sentence on remand after one or more 7 The sentencing court in Rigas made an alternative holding that, even if it sentenced the defendants de novo, the sentence would be the same. Id. The Rigas court dealt with that holding in a different part of its opinion that is not relevant to this appeal. 17 1 counts are reversed (or reinstated) on appeal. 2 however, the district court considered the reinstated 3 conspiracy count, calculated a new Guidelines range, and 4 then, exercising discretion, decided to impose the same 5 sentence as it had at the initial sentencing. 6 to consider the newly submitted loss amounts for Counts V 7 and VI did not violate the duty to re-sentence de novo.8 8 We therefore conclude that the district court acted 9 Here, The refusal within its discretion in refusing to consider the newly 10 submitted loss amounts for the projects underlying Counts V 11 and VI. 8 The government also cites United States v. Bryce, 287 F.3d 249 (2d Cir. 2002). In Bryce, the defendant successfully challenged one of his convictions and the case was remanded for re-sentencing. Id. at 252. While the appeal was pending, he was indicted and later acquitted for murdering someone who was supposed to testify at his first trial. Id. The district court resentenced the defendant de novo, finding that he had murdered the witness and imposing a substantially higher sentence. Id. The Second Circuit affirmed, holding that we have adopted a mandate rule that permits, if it does not require, de novo sentencing unless the mandate specifically limits the scope of the resentencing. Id. at 253. Clearly, Bryce is not on point because it does not require the court to consider new evidence, but simply permitted it in that case. Moreover, in Bryce, the main witness for the murder trial did not step forward until after the original sentencing, justifying the government s failure to raise the issue in the first instance. Id. at 254. 18 1 B 2 The government argues that Desnoyers was subject to a 3 Guidelines enhancement under U.S.S.G. § 3B1.1(a) for being 4 an organizer of the criminal activity. 5 on the organizer enhancement de novo; the underlying fact- 6 finding is reviewed for clear error. 7 Paccione, 202 F.3d. 622, 624 (2d Cir. 2000). 8 We review a ruling United States v. At the original sentencing, the district court refused 9 to apply the organizer enhancement because Desnoyers had 10 been convinced to take part in this criminal endeavor by 11 more criminally predisposed individuals. 12 Dec. 18, 2009. 13 court never mentioned the organizer enhancement 14 notwithstanding the reinstatement of a count of conviction 15 that involved eight additional projects. 16 district court stated at re-sentencing that it adopt[ed] 17 all of the statements that [it] made on the record at the 18 original sentence, Re-sentencing Tr. 21, Oct. 28, 2011, it 19 did so in the context of its consideration of the factors 20 contained in 18 U.S.C. § 3553(a), not the Guidelines 21 enhancements, which were discussed earlier in the hearing. Sentencing Tr. 7, At re-sentencing, however, the district 22 19 Although the 1 In refusing to consider the organizer enhancement at 2 re-sentencing, the district court made the error made in 3 Rigas: It failed to consider that the reinstatement of Count 4 I had changed the factual mosaic related to th[e] offenses 5 [of conviction] such that it was required to analyze the 6 organizer enhancement anew. 7 quotation marks omitted). 8 the district court to consider the organizer enhancement in 9 light of the reinstatement of Count I. 583 F.3d at 118 (internal We remand with instructions for 10 11 12 II The government argues that the district court violated 13 18 U.S.C. § 3661 when it refused to consider character 14 evidence that was not submitted prior to the initial 15 sentencing: the Parker and Garrow affidavits and the joint 16 letter. 17 The statute provides that [n]o limitation shall be 18 placed on the information concerning the background, 19 character, and conduct of a person convicted of an offense 20 which a court of the United States may receive and consider 21 for the purpose of imposing an appropriate sentence. 22 see also U.S.S.G. § 1B1.4. The word may confers 20 Id.; 1 discretion in deciding what character evidence to consider. 2 As explained supra, Archer holds that a district court 3 should not consider evidence at re-sentencing that could 4 have been submitted at the original sentencing absent 5 justification. 6 heard the government s argument that it would have been 7 extremely difficult for it to have found out about Parker, 8 who did not come forward until after the initial sentencing, 9 but nonetheless exercised its discretion in concluding that 10 the government s proffered justification was insufficient. 11 The district court acted within the bounds of its 12 discretion. 13 671 F.3d at 168-69. The district court The government asserts that the district court s ruling 14 at the October 11, 2011, telephone conference was 15 inconsistent with the written Order issued the following 16 day. 17 submissions may refer to the defendant s acts or relevant 18 events occurring subsequent to December 18, 2009. 19 Oct. 12, 2011. 20 court stated that these affidavits and the joint letter 21 refer to events mainly before the original sentence. 22 Telephone Conf. Tr. 12, Oct. 11, 2011. Both directives allowed that [p]re-sentencing Order, However, at the conference, the district 21 This was partly 1 incorrect--the Joint Letter referred only to events that 2 occurred after the original sentencing. 3 moved for reconsideration, hoping to clarify whether it 4 could submit the Joint Letter and affidavits if it redacted 5 the affidavits to remove references to events that took 6 place prior to the initial sentencing; but the district 7 court denied it, referring to the quoted language from the 8 October 12, 2011, Order. 9 character evidence lest it violate the Order. The government The government withdrew the Although the 10 district court might have been clearer in its ruling at the 11 telephone conference, the Order is itself clear and the 12 government should have submitted the Joint Letter and 13 redacted affidavits. 14 district court should have considered evidence that the 15 government never submitted. The government is arguing that the We affirm on this point. 16 17 18 III We have our doubts as to the substantive reasonableness 19 of a sentence of probation, especially given that the 20 offenses of conviction exposed many persons to prolonged 21 risk of insidious and fatal disease. 22 court did not amend its sentence after we reinstated a 22 That the district 1 conspiracy count based on eight additional abatement 2 projects heightens our discomfort. 3 However, we decline to rule on the issue of substantive 4 reasonableness at this time because the sentence contains 5 procedural error. 6 51 (2007) ( Assuming that the district court s sentencing 7 decision is procedurally sound, the appellate court should 8 then consider the substantive reasonableness of the 9 sentence. (emphasis added)); United States v. Cavera, 550 10 F.3d 180, 189-90 (2d Cir. 2008) ( This degree of deference 11 [for substantive review] is only warranted, however, once we 12 are satisfied that the district court complied with the 13 Sentencing Reform Act s procedural requirements. ). 14 See Gall v. United Sates, 552 U.S. 38, We therefore leave it to the district court to correct 15 its procedural errors and consider Desnoyers s sentence 16 again before we rule on substantive reasonableness in any 17 further appeal. 18 19 20 IV The Mandatory Victims Restitution Act ( MVRA ) 21 requires: [T]he court shall order restitution to each 22 victim in the full amount of each victim s losses as 23 1 determined by the court. 2 review awards of restitution for abuse of discretion, United 3 States v. Lucien, 347 F.3d 45, 52 (2d Cir. 2003); but a 4 district court lacks discretion under the MVRA to deny an 5 award of restitution or to award restitution for anything 6 less than the full amount of the victim s losses, United 7 States v. Walker, 353 F.3d 130, 131 (2d Cir. 2003). 8 18 U.S.C. § 3664(f)(1)(A). We A 9 The government argues that the district court erred by 10 refusing to consider newly submitted clean-up costs for the 11 projects underlying Counts V and VI when it calculated the 12 restitution amount. 13 Under 18 U.S.C. § 3664(d)(5), [i]f the victim 14 subsequently discovers further losses, the victim shall have 15 60 days after discovery of those losses in which to petition 16 the court for an amended restitution order. 17 be granted only upon a showing of good cause for the failure 18 to include such losses in the initial claim for 19 restitutionary relief. 20 that the victims in Counts V or VI petitioned the court 21 within sixty days after discovering the additional losses; 22 nor did the government demonstrate good cause for failing to Such order may The government never demonstrated 24 1 include the losses at the first sentence. 2 affirm the restitution calculation for Counts V and VI. 3 4 We therefore B In New York, the person conducting air monitoring for 5 certain asbestos abatement projects is required to take 6 samples before abatement begins ( pre-abatement sampling ), 7 after abatement is complete ( post-abatement sampling ), 8 and, for some projects, while abatement is taking place (so- 9 called durings ). See N.Y. Indus. Code Rule 56-17. In 10 calculating the restitution amount, the district court 11 refused to include the payments victims made for pre- 12 abatement samplings and durings, reasoning that these 13 were services unrelated to the offense of conviction, final 14 clearances. 9 Re-sentencing Tr. 12, Oct. 28, 2011. 15 Although there was no finding that the pre-abatement 16 sampling or durings were themselves conducted improperly, 17 they were an integral part of the overall scheme. 18 analogous situation was recently presented in United States 19 v. Paul, 634 F.3d 668 (2d Cir. 2011), in which the defendant 9 An The government does not argue that these payments should have been included in the Guidelines loss amount calculation, as opposed to the restitution calculation. We therefore limit our discussion of pre-abatement sampling and durings to the restitution issue. 25 1 committed securities fraud by artificially raising a stock 2 price through trades among his multiple accounts. 3 670. 4 banks secured by the artificially valuable stock. 5 argued that the district court should not have imposed 6 restitution in favor of the banks because they were not 7 victims of the securities fraud, the only offense of 8 conviction. 9 the banks were victims because they would not have made the Id. at To finance the scheme, he obtained margin loans from Id. at 677. Id. Paul We disagreed and concluded that 10 loans to Paul had they known that the collateral for the 11 loans was the stock he manipulated. 12 Id. Paul s broad view of restitution controls. The pre- 13 abatement sampling was akin to the margin loans in Paul; 14 both were necessary to the overall scheme even though 15 neither was integral to the offense of conviction. 16 victims here would not have paid for the pre-abatement 17 sampling had they known that the asbestos removal would be 18 fraudulent, just as the banks in Paul would not have made 19 loans if the value of the securities had not been 20 artificially raised. 21 22 The We therefore vacate and remand with instructions for the district court to include in its restitution calculation 26 1 all income received by Desnoyers for his role in the scheme, 2 including that for pre-abatement sampling and durings. 3 4 C Wood was required to pay restitution in the amount of 5 $854,166.06 with the proviso that Wood shall be jointly and 6 severally liable for $250,302.22 of this restitution with 7 co-defendant, Mark Desnoyers. 8 6, 2009. 9 projects in Count I (Wood was not involved in the projects Wood Sentencing Tr. 19, Feb. The latter amount related only to the eight 10 underlying Counts V and VI). 11 sentencing, Judge Hurd imposed a restitution amount for the 12 contract values of the Count I projects equal only to the 13 amount Desnoyers received for his work on those projects 14 ($4,275), not the total contract value of all of the Count I 15 projects. 16 Moreover, the court concluded that Desnoyers was personally 17 responsible for only nine percent of the Count I clean-up 18 costs--which it calculated as $6,16310--not the total clean- 19 up costs of $69,476. 20 21 However, at Desnoyers s re- Re-sentencing Tr. 11-12, Oct. 28, 2011. Id. at 12-13. While the district court has discretion to decide whether defendants should be jointly and severally liable 10 Nine percent of $69,476 is $6,252.84. 27 1 for restitution, see United States v. Amato, 540 F.3d 153, 2 163 (2d Cir. 2008), the district court did not explain how 3 it arrived at the nine percent figure, or why it held that 4 Desnoyers would be jointly and severally liable for 5 $250,302.22 at Wood s sentencing but abandoned this position 6 at Desnoyers s re-sentencing. 7 abused its discretion in calculating the restitution amount 8 for the projects in Count I. 9 district court to calculate the restitution amount for Count 10 The district court therefore We vacate and remand for the I with a full explanation for its reasoning. 11 12 V 13 At oral argument, we asked the parties for letter 14 briefs on the question whether we should assign the case to 15 a different district judge on remand, as we have sometimes 16 done. 17 (2d Cir. 1974). 18 before affording the district court an opportunity to 19 formulate a sentence after correction of procedural errors. E.g., United States v. Schwartz, 500 F.2d 1350, 1352 We decline to take that extraordinary step 20 28 1 2 CONCLUSION For the foregoing reasons, we AFFIRM in part and VACATE 3 and REMAND in part. We AFFIRM the following: (1) the 4 district court s refusal to consider newly submitted 5 evidence relating to Counts V and VI; and (2) the district 6 court s refusal to consider the newly submitted character 7 evidence. 8 following issues and REMAND for re-sentencing in accordance 9 with this opinion: (1) the district court s refusal to We VACATE the district court s judgment on the 10 include the Page Estimate in the loss amount for Count I; 11 (2) the district court s failure to consider the organizer 12 enhancement at re-sentencing; (3) the district court s 13 refusal to include payments for pre-abatement sampling and 14 durings in its restitution calculation; and (4) the district 15 court s entire restitution calculation for Count I. 29
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