United States District Court, Eastern District of Pennsylvania
July 19, 2001
UNITED STATES OF AMERICA
RICHARD SCHOENBERGER, DEFENDANT.
The opinion of the court was delivered by: Marvin Katz, S.J.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Findings of Fact
1. Defendant Richard Schoenberger was convicted of RICO conspiracy
and possession of a firearm by a convicted felon.
2. On January 22, 1988, this court sentenced defendant to the custody of
the Attorney General for eight years' imprisonment on Criminal No.
86-451-13 and five years' imprisonment on Criminal No. 87-320, said terms
of imprisonment to run concurrently. In addition, the court suspended
sentence and imposed five years' probation on Count 10 of Criminal No.
87-320 to commence upon release from imprisonment.
3. Among the conditions of probation imposed upon defendant were
a) defendant shall not commit another federal, state, or
local crime during the term of supervision;
b) defendant shall not purchase, possess, use, or administer any
narcotic or controlled substance or any paraphernalia related to
such substances, except as prescribed by a physician; and
c) defendant shall not associate with any persons engaged
in criminal activity and shall not associate with any
person convicted of a felony unless granted permission to
do so by the probation officer.
4. On August 25, 1994, defendant was arrested by Montgomery County
detectives and charged with possession of one pound of methamphetamine
and possession of to firearms.
5. Subsequently defendant entered into a Guilty Plea Agreement with the
United States Attorney's Office for the Eastern District of Pennsylvania
and the Office of the District Attorney of Montgomery County. The
agreement required defendant to cooperate with law enforcement
6. Pursuant to that Guilty Plea Agreement, on May 18, 1995 defendant
entered a plea of guilty to an information charging him with one count of
participation in the affairs of an interstate enterprise through a pattern
of racketeering activity, in violation of 18 U.S.C. § 1962(c). On
June 5, 2001, United States District Judge Jay C. Waldman granted the
Government's Motion to Permit Departure from Guideline Sentencing Range
and sentenced defendant to 110 months' imprisonment.
7. Also pursuant to the Guilty Plea Agreement, defendant pleaded guilty
to three informations filed by the Office of the District Attorney of
Montgomery County charging him with participation in a corrupt
organization, in violation of 18 Pa. C.S. § 911, conspiracy to
distribute methamphetamine, in violation of 18 Pa. C.S. § 903, and
distribution of methamphetamine, in violation of 35 Pa. C.S. §
780-113(3). Defendant was sentenced on those charges on July 19, 2001 to
20 years of probation.
8. On September 11, 1994 a warrant was issued by the court for a
violation of probation with the period of probation being tolled until
the disposition of that pending arrest. It is noted that at the time of
tolling, defendant had three years, one month and seven days remaining on
Conclusions of Law
5. By his two guilty pleas, defendant has admitted that he violated his
conditions of probation by committing federal and state crimes.
6. Probation is governed by the provisions of 18 U.S.C. § 3565. After
holding a hearing pursuant to Federal Rule of Criminal Procedure 32.1,
the court may continue the defendant on probation, with or without
extending the term or modifying the conditions, or may revoke the
sentence of probation and resentence the defendant. § 3565(a). In
making that determination, the court is to consider the factors set forth
in § 3553(a), among which are the nature and circumstances of the
offense, the history and characteristics of the defendant, and the need
for the sentence to provide just punishment, adequate deterrence, to
protect the public, and to rehabilitate the defendant.
7. Because the term of probation was imposed upon Count 10 which carried
a maximum term of imprisonment of ten years, the court may sentence
defendant up to 10 years' imprisonment upon revocation. However,
revocation is mandatory if
the defendant possesses a controlled substance
in violation of a condition of probation. 18 U.S.C. § 3565(b)(1).
Revocation is also mandatory if the defendant possesses a firearm in
violation of federal law or otherwise violates a condition of probation
prohibiting the defendant from possessing a firearm.
18 U.S.C. § 3565(b)(2).
8. Because the sentences imposed in these cases were for offenses
committed before the effective date of the Sentencing Guidelines, the
Guidelines do not apply to the sentence imposed following revocation of
probation. United States v. Vogel, 54 F.3d 49 (2d Cir. 1995).
An appropriate Order follows.
AND NOW, this 19th day of July, 2001, after a hearing and based on the
foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED
that the defendant's probation is REVOKED and the defendant is committed
to the custody of the United States Bureau of Prisons for a term of 12
months to run concurrently with the sentence specified in paragraph 6 of
the foregoing Findings of Fact.
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