United States v. Desnoyers

590 F. App'x 54
CourtCourt of Appeals for the Second Circuit
DecidedNovember 12, 2014
DocketNo. 13-4060-cr
StatusPublished

This text of 590 F. App'x 54 (United States v. Desnoyers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Desnoyers, 590 F. App'x 54 (2d Cir. 2014).

Opinion

SUMMARY ORDER

The government appeals a September 9, 2013 amended judgment of the United States District Court for the Northern District of New York sentencing defendant-appellee Mark Desnoyers to five years’ probation, with six months’ home confinement and twenty-six consecutive weekends of intermittent confinement. Desnoyers was convicted by a jury of five counts arising from his malfeasance as an air monitor for asbestos abatement projects. This is the government’s third appeal in this case. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal, which we briefly summarize before addressing the merits.

Desnoyers was convicted of (1) conspiracy to violate the Clean Air Act and to commit mail fraud by engaging in certain “rip and run” asbestos abatement projects, (2) aiding and abetting a violation of the Clean Air Act in another, separate abatement project, (3) a substantive mail fraud offense arising from yet another abatement project, and (4) two counts of making false statements to' agents of the Environmental Protection Agency (the “EPA”). After trial, the district court vacated the conspiracy conviction and sentenced Des-noyers to five years’ probation and restitution of $34,960, on a joint and several basis “with related case Curt Collins.” App. at 566-67. The government appealed, and we reinstated the conspiracy conviction and remanded for resentencing. See United States v. Desnoyers, 637 F.3d 105 (2d Cir.2011).

On remand, the district court imposed the same probationary sentence, declining to apply the so-called “organizer enhancement” under United States Sentencing Guidelines (“U.S.S.G.”) § 3B1.1. Although the district court had concluded in sentencing a co-defendant that Desnoyers would be jointly and severally hable for $250,302.22 in connection with the conspiracy projects, Sp.App. at 34, at Desnoyers’s resentencing the district court held that Desnoyers should be hable only for his “proportionate liability” with respect to the conspiracy count, App. at 585-86. The district court imposed restitution in the total amount of $45,398, which included Desnoyers’s liabihty for nine percent of the cleanup costs relating to the conspiracy count; the court did not explain, however, how it arrived at the nine percent figure. The government again appealed. We vacated the sentence, with instructions for the district court to reconsider the organizer enhancement in light of the reinstatement of the .conspiracy count, and to calculate restitution with a full explanation of its reasoning. See United States v. Desnoyers, 708 F.3d 378, 390-91 (2d Cir.2013).

On the second remand, the district court again declined to apply the organizer enhancement and declined to hold Desnoyers jointly and severally liable for restitution based in part on the fact that he earned less money from the scheme than his co-conspirators and that apportionment was “far more equitable.” Sp.App. at 34. The court apportioned to Desnoyers liability for fourteen percent of the cleanup costs relating to the conspiracy count: the court explained that the fourteen percent figure represented “an approximation of [Desnoy-ers’s] share of the proceeds from the abatement/air monitoring contracts for the projects outlined in [the conspiracy count].” Sp.App. at 33-34. It imposed the same five-year probationary term, but also imposed six months’ home confinement and twenty-six weekends of intermit[56]*56tent confinement. This appeal by the government followed.

On appeal, the government argues that (1) the district court erred in not applying the organizer enhancement, (2) Desnoy-ers’s sentence is substantively unreasonable, (3) the district court’s restitution order constituted an abuse of discretion, and (4) the district judge should be removed from the case on remand. We address each argument in turn.

1. Organizer Enhancement

We review a district court’s interpretation of the Guidelines de novo and its findings of fact for clear error. United States v. Mejia, 461 F.3d 158, 162 (2d Cir.2006). Section 3Bl.l(a) of the U.S.S.G. provides for a four-level increase if the criminal activity involved five or more participants and the defendant was an “organizer or leader.” See also United States v. Beaulieau, 959 F.2d 375, 379-80 (2d Cir.1992) (“Whether a defendant is considered a leader depends upon the degree of discretion exercised by him, the nature and degree of his participation in planning or organizing the offense, and the degree of control and authority exercised over the other members of the conspiracy.”).

The government argues that the district court’s stated reasons for declining to apply the organizer enhancement are at odds with findings in the presen-tence report (“PSR”), which the district court explicitly adopted on a wholesale basis. We agree. First, the district court found that Desnoyers was “less culpable” than his co-defendants, Sp.App. at 6, and yet the PSR noted that Desnoyers “devised and directed” the criminal scheme with two co-conspirators, offering no indication that Desnoyers was not at least an. equal participant, PSR ¶ 15. Next, the district court found that Desnoyers was “somewhat duped and misled” by his co-defendants, Sp.App. at 6, and yet the PSR states that Desnoyers not only “organized the illegal work,” but also approached a co-defendant about starting a company for which Desnoyers would perform the air monitoring, PSR ¶ 35. Finally, the district court found that Desnoyers “had no direct supervisory or managerial control over the abatement workers,” Sp.App. at 7, despite explicit recitations in the PSR that Desnoyers was the “General Manager” of three projects in the conspiracy count, for which he “solicited” two co-defendants to participate as abatement contractors, PSR ¶ 35. Additionally,' according to the PSR, Desnoyers “created fraudulent records, and billed clients for work” he never completed, PSR ¶ 19, and he testified that he disbursed unlawful proceeds from some of the abatement projects, App. at 191.

A court deciding whether to apply a four-level organizer or leader enhancement under § 3Bl.l(a) should consider factors including “the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n. 4; see United States v. Molina, 356 F.3d 269, 276 (2d Cir.2004). “As to disputed issues of fact, the district court must make findings with sufficient clarity to permit meaningful appellate review.” United States v. Skys, 637 F.3d 146, 152 (2d Cir.2011); see United States v. Huerta, 371 F.3d 88, 92-93 (2d Cir.2004) (remanding the case to the district court where the record “le[ft] open important factual questions regarding ...

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708 F.3d 378 (Second Circuit, 2013)

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Bluebook (online)
590 F. App'x 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-desnoyers-ca2-2014.