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UNITED STATES v. SCHEINER

January 15, 1995

UNITED STATES OF AMERICA,
v.
DAVE E. SCHEINER



The opinion of the court was delivered by: EDUARDO C. ROBRENO

 EDUARDO C. ROBRENO, J.

 January 15, 1995

 Defendant David Scheiner, a licensed podiatrist, was sentenced to fifteen months imprisonment, a $ 25,000 fine, and payment of $ 37,000 in restitution for his participation in a conspiracy to defraud various insurance companies by submitting false and fraudulent claims for medical services he purportedly rendered. The sentence was imposed by the Court after the defendant had pleaded guilty to three counts of mail fraud pursuant to a plea agreement he entered into with the Government. At sentencing, the defendant moved for a downward departure from the determined Guidelines range of 15 to 21 months based on his civic, charitable, and public service activities. See U.S. Sentencing Comm'n, Guidelines Manual § 5H1.11, § 5K2.0 (Nov. 1994) [hereinafter U.S.S.G.]. Following a lengthy hearing during which the defendant presented testimony from twenty-three individuals avowing to the defendant's community involvement, and after a consideration of the presentence investigation report, various letters submitted on behalf of the defendant, and counsel's written submission and oral argument, the motion was denied by the Court. (Tr. of 11/2/94, at 58-63.)

 After sentence was imposed and judgment was entered, the defendant did not file a notice of appeal within the ten-day period provided by the Federal Rules of Appellate Procedure. Nor was the defendant advised by the Court after the sentencing of his right to do so. The defendant, however, had been advised of his right to appeal his sentence at the time the Court accepted his guilty plea. Having obtained new counsel, the defendant now argues that it was error for the Court not to advise him after his sentencing of his right to appeal his sentence and, therefore, he should be resentenced. At this proposed resentencing, the defendant wishes to reargue that he is entitled to a downward departure based upon extraordinary civic and charitable contributions, and in addition, the defendant wishes to proffer the previously unasserted grounds for a downward departure of extraordinary family ties and responsibilities, personal circumstances, and that a downward departure is warranted based on the combination of all the aforementioned factors. The Government opposes this request.

 In the alternative, the defendant seeks an enlargement of time to appeal his sentence, asserting that his failure to appeal his sentence in a timely fashion was based on excusable neglect. The defendant points to a medically-confirmed post-sentencing depression that allegedly compromised his ability to understand his right to appeal his sentence and to the Court's failure to advise him of his right to appeal after sentencing as justifications for his requested extension. *fn1" The Government does not oppose this request.

 Finally, the defendant requests that, pending resentencing or appeal, he be permitted to remain free on bail. The defendant contends that the Court's denial of the request for a downward departure based upon extraordinary civic and charitable activities raises substantial questions of law because the Court committed error when determining whether the defendant's activities were extraordinary and also impermissibly took into consideration the effect the proposed departure would have on the penological objectives that a sentence provide just punishment and afford adequate deterrence. 18 U.S.C.A. § 3553(a)(2) (West 1985 & Supp. 1993). The Government opposes any grant of bail to the defendant.

 The following questions raised by the defendant's motions are consequently now before the Court:

 1. Whether it was error for the Court to fail to advise the defendant after sentencing of his right to appeal his sentence and, if so, whether the defendant is entitled to be resentenced;

 2. Whether the defendant's failure to file a notice of appeal within ten days from sentencing was caused by excusable neglect entitling the defendant to an extension of time for filing an appeal;

 3. Whether the Court's consideration of just punishment and deterrence in determining whether the defendant's civic and charitable activities were extraordinary was legally incorrect; and

 4. Whether the Court impermissibly took into account notions of just punishment and deterrence in deciding not to depart on the grounds of extraordinary civic and charitable contributions.

 The Court finds that:

 1. The Court's failure to advise the defendant after sentencing of his right to appeal his sentence was technical and did not result in prejudice to the defendant, thus not requiring that the defendant be resentenced;

 2. The defendant's failure to file a notice of appeal within ten days of his sentencing was the result of excusable neglect due to both the Court's failure to advise the defendant after sentencing of his right to appeal his sentence and the defendant's post-sentencing depressive state of mind, thus entitling the defendant to an extension of time for filing an appeal of his sentence;

 3. The Court's reference to the concepts of just punishment and deterrence in determining that the defendant's civic and charitable activities were not extraordinary was not prohibited; and

 4. In deciding not to depart from the Guidelines, the Court was similarly permitted to take into account the penological objectives that a sentence provide just punishment and afford adequate deterrence.

 Based on the above conclusions, the Court will grant the defendant an extension of time to file an appeal because of excusable neglect but deny the defendant's request for a stay of surrender and bail pending appeal on the grounds that the appeal does not raise substantial questions of law.

 I. DEFENDANT'S REQUEST FOR RESENTENCING

 Federal Rule of Criminal Procedure 32(a)(2) provides:

 
After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal, including any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal for leave to file in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere, except that the court shall advise the defendant of any right to appeal the sentence.

 Fed. R. Crim. P. 32(a)(2).

 Since the defendant entered into a plea agreement and pleaded guilty to his crimes, "after imposing sentence . . . the [Court] should have advised [the] defendant of his right to appeal [his sentence] under Rule 32(a)(2)." United States v. Caswell, 36 F.3d 29, 30 (7th Cir. 1994). Ordinarily, a violation of Rule 32(a)(2) requires resentencing of the defendant. United States v. Drummond, 903 F.2d 1171, 1172 n.2 (8th Cir. 1990) ("The procedure for reinstating the right to appeal is to vacate the sentence and remand to the trial court for resentencing."), cert. denied, 498 U.S. 1049, 111 S. Ct. 759, 112 L. Ed. 2d 779 (1991). However, "mere technical noncompliance with the provisions of Rule 32(a)(2) [does] not require a resentencing absent a clear showing of prejudice." Hoskins v. United States, 462 F.2d 271, 274 (3d Cir. 1972). No prejudice will be deemed to have occurred, and hence no new sentencing is necessitated, "where notice of the appeal rights is placed on the record in a formal judicial ...


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