United States v. Provosty

Second Circuit

United States v. Provosty

56 F. App'x 59

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 24, 2003

DocketDocket No. 02-1550

StatusPublished

This text of 56 F. App'x 59 (United States v. Provosty) 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.

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United States v. Provosty, 56 F. App'x 59 (2d Cir. 2003).

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SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED.

Defendant-appellant Erica Provosty appeal from her sentence entered on September 13, 2002 in the United States District Court for the Southern District of New York following her guilty plea to one count of conspiring to make false statements to the Social Security Administration, and four counts of making false statements to the Social Security Administration through the submission of fraudulent applications for Social Security cards. She was sentenced to concurrent terms of six months’ imprisonment, three years’ supervised release, and a $500 special assessment.

Appellant argues that the District Court erred by denying her request for a downward adjustment under U.S.S.G. § 3B1.2(b) as a “minor participant” in the crime. Appellant did not know the full scope of the criminal scheme in which she was involved. However, she was not charged with a crime involving the entire scheme, but rather was only charged with making false statements and conspiring to make false statements. In regards to those crimes, she played a primary role. She personally went to the Social Security office, filled out applications with information she knew to be false, and handed in documentation that she knew to be false. She engaged in this behavior on four separate occasions, and was paid for each. Therefore, the district court acted reasonably within the scope of its discretion in denying a minor participant adjustment. See United, States v. Lewis, 93 F.3d 1075, 1085 (2d Cir.1996) (rejecting a defendant’s request for a minor participant adjustment because his base offense level was calculated on the basis of his limited role in a conspiracy, and not on the entire conspiracy).

[60]*60Appellant argues that this court should nevertheless remand because it is unclear from the record whether the District Court applied the correct legal principles when it denied her request. While there was some confusion during the sentencing hearing about the difference between a “downward departure” and a “downward adjustment”, the District Court appeared to fully understand the factual predicate that had to be met to grant a minor participant adjustment and determined that it was not satisfied.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED.

Defendant-appellant Erica Provosty appeal from her sentence entered on September 13, 2002 in the United States District Court for the Southern District of New York following her guilty plea to one count of conspiring to make false statements to the Social Security Administration, and four counts of making false statements to the Social Security Administration through the submission of fraudulent applications for Social Security cards. She was sentenced to concurrent terms of six months’ imprisonment, three years’ supervised release, and a $500 special assessment.

Appellant argues that the District Court erred by denying her request for a downward adjustment under U.S.S.G. § 3B1.2(b) as a “minor participant” in the crime. Appellant did not know the full scope of the criminal scheme in which she was involved. However, she was not charged with a crime involving the entire scheme, but rather was only charged with making false statements and conspiring to make false statements. In regards to those crimes, she played a primary role. She personally went to the Social Security office, filled out applications with information she knew to be false, and handed in documentation that she knew to be false. She engaged in this behavior on four separate occasions, and was paid for each. Therefore, the district court acted reasonably within the scope of its discretion in denying a minor participant adjustment. See United, States v. Lewis, 93 F.3d 1075, 1085 (2d Cir.1996) (rejecting a defendant’s request for a minor participant adjustment because his base offense level was calculated on the basis of his limited role in a conspiracy, and not on the entire conspiracy).

[60]*60Appellant argues that this court should nevertheless remand because it is unclear from the record whether the District Court applied the correct legal principles when it denied her request. While there was some confusion during the sentencing hearing about the difference between a “downward departure” and a “downward adjustment”, the District Court appeared to fully understand the factual predicate that had to be met to grant a minor participant adjustment and determined that it was not satisfied.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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