United States v. Sarvestani

297 F.R.D. 228, 2014 WL 231047, 2014 U.S. Dist. LEXIS 9484
CourtDistrict Court, S.D. New York
DecidedJanuary 22, 2014
DocketNo. 13 Cr. 214(PGG)
StatusPublished

This text of 297 F.R.D. 228 (United States v. Sarvestani) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sarvestani, 297 F.R.D. 228, 2014 WL 231047, 2014 U.S. Dist. LEXIS 9484 (S.D.N.Y. 2014).

Opinion

ORDER

PAUL G. GARDEPHE, District Judge.

On May 8, 2013, Defendant pleaded guilty to conspiracy to violate the International Emergency Economic Powers Act (IEEPA), in violation of 18 U.S.C. § 371. On August 14, 2013, this Court sentenced Defendant to thirty months’ imprisonment and a $100,000 fine. (See Dkt. No. 25) On August 28, 2013, Defendant moved, pursuant to Federal Rule of Criminal Procedure 35(a), for correction of his sentence on the ground that it “was, in part, based on the erroneous'allegation that the Defendant was conspiring to trans-ship U.S. manufactured parts that control satellites.” (Dkt. No. 34-1 at 1) For the reasons set forth below, Defendant’s motion will be denied.

As an initial matter, this Court lacks jurisdiction to correct Defendant’s sentence under Rule 35(a). Under Rule 35(a), “[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed.R.Crim.P. 35(a). Under Rule 35(c), the fourteen-day period begins to run upon “the oral announcement of the sentence.” Fed.R.Crim.P. 35(c). The Second Circuit “ha[s] held, as have several other circuits, that the [time] period provided for in Rule 35 [ (a) ] is jurisdictional.”1 United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2d Cir.1995). Accordingly, a district court lacks jurisdiction to correct a sentence after the fourteen-day period set forth in Rule 35(a) has expired, even where the motion seeking relief is timely filed. See United States v. Higgs, 504 F.3d 456, 458-59 (3d Cir.2007) (“[T]he seven-day limit in [Rule 35(a) ] does not apply to counsel’s motion. It is expressly in terms of the District Court’s action.”);2 see also United States v. Werber, 51 F.3d 342, 348 (2d Cir. 1995) (“Because the district court modified the defendants’ original sentences more than seven days after they were imposed, the court had no jurisdiction to enter the corrected judgments under Rule 35[ (a) ].”). Here, [230]*230because more than fourteen days have passed since the Court’s oral announcement of sentence, this Court lacks jurisdiction to correct Defendant’s sentence under Rule 35(a).

Even if this Court had jurisdiction to correct the Defendant’s sentence, his motion would fail on the merits. The Second Circuit has instructed that Rule 35(a) “is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action.... ” Abreu-Cabrera, 64 F.3d at 72 (quoting Fed. R. Crim. P. 35, Advisory Committee’s Note, 1991); see, e.g., United States v. Donoso, 521 F.3d 144, 149 (2d Cir.2008) (district court “properly relied on Rule 35(a) to recall [the defendant’s case and ... correct [the] sentence” where the court “did not have the authority to direct that [the defendant’s federal sentence run consecutively to his state sentence”); United States v. De-Martino, 112 F.3d 75, 81 (2d Cir.1997) (district court’s “impermissible deviation of the written judgment from the oral sentence ... was a ‘clear error’ [that] could have been corrected ... pursuant to Rule 35(c)____”); United States v. Waters, 84 F.3d 86, 90 (2d Cir.1996) (district court “properly exercised its authority to correct its error ..., pursuant to Rule 35(e)[,]” where the court “fail[ed] to consider [the policy statements in Chapter 7 of the Guidelines] when sentencing [the defendant] for violating the terms of his supervised release”).

Defendant argues that “[t]his Court’s sentence was, in part, based on the erroneous allegation that the Defendant was conspiring to trans-ship U.S. manufactured parts that control satellites.” (Dkt. No. 34AL at 1) As an initial matter, this Court did not find that Defendant had shipped parts to Iran that “control satellites.” Instead, the Court stated that “some of the equipment at issue here has a role in monitoring, positioning, and controlling satellites and satellite antennas.” (Sentencing Transcript (“Sent. Tr.”) at 24) (emphasis added).3

In any event, the Court’s sentence was based on far more than the nature of the equipment the Defendant provided to Iran. In imposing a thirty-month sentence, the Court noted, inter alia, the level of deception employed by the defendant, the intentional nature of his acts, his central role in the offense, the fact that he engaged in this criminal exporting activity for a number of years, the fact that he sold hundreds of thousands of dollars’ worth of U.S. — made equipment to Iran, his high level of sophistication, and the need for the sentence imposed to provide general deterrence:

Because there is a trade embargo in place that prohibits the sale of most U.S. made goods to Iran, the U.S.[-]made equipment here was shipped through intermediary destinations such as Dubai, Malaysia, Hong Kong, and elsewhere, in order to obscure the goods’ true destination. The defendant’s companies did millions of dollars of transactions with Iranian companies over many years. And a percentage, not insignificant percentage, of that business involved the sale of U.S.-made products, including electronic equipment and including, specifically, the satellite-related equipment at issue here.
The defendant is a highly sophisticated international businessman. Indeed, his counsel has pointed out this morning [that] one of the defendant’s companies had as much as $200 million in revenue in 2011, alone. There is also no doubt that the defendant was well aware of the laws prohibiting the sale of U.S. made goods to [231]*231Iran. Indeed, in 2009, one U.S. supplier explicitly warned the defendant, in writing, to ensure that he complied with all U.S. export controls.
Instead, the defendant instructed his employees to disguise the fact that his employees were selling this merchandise to Iran. He warned his employees to be careful in relaying inquiries about the merchandise from the Iranian buyers to the U.S. suppliers. They were told to, quote “be careful about this subject” unquote, to address the queries by telephone, and to never use email.
As a result of the defendant’s conduct, his employees lied to U.S. customs inspectors as to the ultimate destination of the merchandise.

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Related

United States v. Werber
51 F.3d 342 (Second Circuit, 1995)
United States v. Ramon Wilberto Abreu-Cabrera
64 F.3d 67 (Second Circuit, 1995)
United States v. Jerry Waters
84 F.3d 86 (Second Circuit, 1996)
United States v. Vincent Demartino, AKA Chickie
112 F.3d 75 (Second Circuit, 1997)
United States v. Donoso
521 F.3d 144 (Second Circuit, 2008)
United States v. Higgs
504 F.3d 456 (Third Circuit, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
297 F.R.D. 228, 2014 WL 231047, 2014 U.S. Dist. LEXIS 9484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sarvestani-nysd-2014.