Opinion
04 Cr. 1159 (RWS).
February 14, 2005
SENTENCING OPINION
On October 18, 2004, defendant Mike Blume ("Blume"), appeared before the Honorable Theodore H. Katz of this district and allocuted to the conduct charged in the sole count of the information, a count of attempt to commit mail fraud in violation of 18 U.S.C. 1341, 1346, 1349, and 2 (a Class C felony). Blume's plea was accepted on December 6, 2004. Blume will be sentenced to one year of probation, subject to the further conditions set forth herein.
Prior Proceedings
On June 14, 2004, a complaint was filed charging Blume and twenty other defendants with mail fraud and health care conspiracy in violation of 18 U.S.C. § 371, and a warrant was issued for Blume's arrest. On June 17, 2004, Blume was arrested. On September 24, 2004, Blume signed a waiver of indictment. On October 18, 2004, a one-count felony information was filed as to Blume charging him with conduct in violation of 18 U.S.C. §§ 1341, 1346, 1349, and 2. Also on October 18, 2004, Blume entered a guilty plea before Judge Katz, and Judge Katz recommended that this guilty plea be accepted. On December 6, 2004, the recommendation and plea were accepted. Blume is scheduled to be sentenced on February 14, 2005.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, ___ F.3d ___, 2005 WL 240916 (2d Cir. Feb. 2, 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553 (a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 2005 WL 240916, at *7.
The Defendant
Blume was born on September 6, 1942 in Brooklyn, New York. In 1961, Blume graduated from Erasmus Hall High School in Brooklyn, New York. He subsequently received a certificate in auto collision repairs from the Roberts Trade School in Manhattan. He has resided at his current address for the past 14 years.
Blume was married in 1965, and he was divorced in 1985. He has two sons from this marriage, ages 38 and 34, with whom he apparently he enjoys a close relationship. Blume's sons indicate that they have provided financial assistance to their father since his arrest.
At some point in the 1980's, Blume was licensed by the State of New York Insurance Department as an independent adjuster for auto damage and theft appraisals. This license expired on December 31, 2004.
From 1993 until 2002, Blume co-owned and operated Property Damage Appraisers in Brooklyn. In this capacity, Blume earned $31,200 annually. Blume indicated that this business has subsequently closed. From 2002 until 2003, Blume was apparently employed as the manager of a Brooklyn body shop where he earned $47,000 annually.
From 2002 until 2004, Blume worked as an independent appraiser, earning approximately $35 per appraisal. Blume stated that he earned approximately $12,000 in 2004. Although he is no longer an appraiser, Blume works for O.K. Appraisers in Queens. Blume has indicated that there is little work available for him in his current employment.
Blume has completed a written financial statement indicating that he has no assets. Blume stated that since his arrest, he has liquidated over $20,000 in securities and life insurance policies to cover his legal costs. Blume stated that he has approximately $10,000 in outstanding credit card debt and approximately $10,000 outstanding on an automobile loan. Based on the foregoing, it appears that Blume has a negative net worth.
Blume stated that his monthly income is less that $500, and his monthly expenses are approximately $1,900, resulting in a negative monthly cash flow of approximately $1,400. Blume stated that his sons help him cover his monthly expenses.
The Offense Conduct
On March 1, 2004, Blume went to an autobody shop located on Bay 37th Street in Brooklyn (the "Garage"), which was operated by two individuals. Blume, who was conducting an appraisal on behalf of United Claims Service, went to the Garage to inspect a vehicle that had been brought in following an accident. Blume met with the owner of the shop, and they discussed creating an inflated estimate of the damage to this vehicle. The owner apparently asked Blume for a good estimate on the vehicle, and Blume apparently responded: "I always did good by you and you did good by me." The owner gave Blume approximately $100 in cash. This meeting between Blume and the owner was recorded.
Later that same day, Blume transmitted an inflated estimate for the vehicle to the owner of the auto body shop.
Blume was arrested on June 17, 2004.
At his plea allocution, Blume stated that in or about March, 2004, he accepted a bribe in exchange for an inflated insurance estimate, understanding that the bribe would be transmitted through the U.S. mails. Blume further stated that he knew at the time that acceptance of the bribe was a violation of federal law, and he knew that what he was doing was wrong. Blume acknowledged that the purpose of the fraudulent estimate was to induce an insurance company to provide more money to the insured than would properly be appropriate.
Relevant Statutory Provisions
Pursuant to 18 U.S.C. § 1349, the maximum term of imprisonment is 20 years.
Pursuant to 18 U.S.C. § 3583(b)(2), if a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than 3 years. Because the offense in question is a felony, pursuant to 18 U.S.C. § 3563 (a) (2) one of the following must be imposed as a condition of probation, unless extraordinary circumstances exist: a fine, restitution, or community service.
Pursuant to 18 U.S.C. §§ 3663A and 3664, full restitution to the victim is required.
Pursuant to 18 U.S.C. § 3571, the maximum authorized fine is $250,000. A special assessment of $100 is mandatory pursuant to 18 U.S.C. § 3013.
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, all offenders on probation, parole or supervised release for offenses committed after September 13, 1994 are required to submit to one drug test within fifteen days of commencement of probation, parole, or supervised release and at least two drug tests thereafter for use of a controlled substance, unless ameliorated or suspended by the court due to its determination that the defendant poses a low risk of future substance abuse as provided in 18 U.S.C. §§ 3563(a) (5) and 3583(d).
The Guidelines
The November 1, 2004 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes, in accordance with Guidelines § 1B1.11(b) (1).
The guideline for a violation of 18 U.S.C. § 1349 is found in § 2B1.1, which provides for a base offense level of seven, pursuant to § 2B1.1(a)(1).
Since the loss did not exceed $5,000, pursuant to § 2B1.1(b)(1), no increase is made to the offense level.
There are no victim-related adjustments.
Blume abused a position of private trust as an insurance adjustor in a manner that significantly facilitated the commission or concealment of the offense. As such and pursuant to § 3B1.3, the offense level is increased two levels.
There are no adjustments for obstruction of justice.
Based on the his plea allocution, Blume has shown a recognition of responsibility for the offense. Therefore, pursuant to § 3E1.1(a), the offense is reduced two levels.
The resulting adjusted offense level is 7.
Based upon the information supplied by the U.S. Probation Office on February 4, 2005, Blume has no known criminal convictions. Accordingly, he has zero criminal history points and a Criminal History Category of I.
Based on a total offense level of 7 and a Criminal History Category of I, the Guidelines range for imprisonment is 0 to 6 months.
The Guidelines range for a term of supervised release is at least two years but not more than three years, pursuant to § 5D1.2(a) (2). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is rendered optional by the Guidelines, pursuant to § 5D1.1(b). Under the Guidelines, supervised release is called for if the Court imposes a term of imprisonment of more than one year or when required by statute, pursuant to § 5D1.1(a).
According to the Guidelines, Blume should be eligible for probation because the applicable Guidelines range is in Zone A of the Sentencing Table, pursuant to § 5B1.1(a) (1). If the court imposes probation, the Guidelines call for a term of probation of at least one year but not more than five years because the offense level for the instant offense is greater than six, pursuant to § 5B1.2(a) (1).
Pursuant to § 5E1.1(a) (1), in the case of an identifiable victim, the sentencing court is advised to enter a restitution order for the full amount of the victim's loss if such order is authorized under 18 U.S.C. § 3663A.
The Guidelines fine range for the instant offense is $500 to $5,000, pursuant to § 5E1.2(c) (3) (A), (B).
Subject to Blume's ability to pay, the Guidelines advise that the expected costs to the government of any imprisonment, probation, or supervised release shall be considered in imposing a fine, pursuant to § 5E1.2 (d) (7). The most recent advisory from the Administrative Office of the U.S. Courts suggests a monthly cost of $1,931.97 to be used for imprisonment, a monthly cost of $292.21 for supervision, and a monthly cost of $1,590.66 for community confinement.
The Remaining Factors of Section 3553(a)
Having considered the Guidelines calculations, as set forth above, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a). In particular, pursuant to §§ 3553 (a) (1) and 3553 (a) (2) (C), it is significant that the instant offense represents Blume's first criminal conviction, and he appears to pose no threat to the safety of the community.
The Sentence
No term of imprisonment and no term of supervised release shall be imposed.
A term of one year of probation shall be imposed. As mandatory conditions of this probation, Blume shall: (1) abide by the standard conditions of supervision (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; (4) not possess a firearm or destructive device; and (5) cooperate in the collection of DNA as directed by the probation officer.
The mandatory drug testing condition is suspended based on the Court's determination that Blume poses a low risk of future substance abuse.
Blume shall pay to the United States a special assessment of $100, which shall be due immediately.
Blume shall make restitution in the amount of $100, which shall be paid in full immediately. Such restitution shall be payable to the Clerk, U.S. District Court, for disbursement to The Government's Victim's Compensation Fund. Blume shall notify the United States Attorney for this district within 30 days of any change of mailing or residence address that occurs while any portion of the restitution remains unpaid.
As Blume has kept all court appearances, has been in compliance with all terms and conditions of his pretrial release, and is not viewed as a flight risk or a danger to the community, he is deemed a good candidate for voluntary surrender. Blume is therefore directed to report to the nearest Probation Office within 72 hours of imposition of sentence. Blume's probation shall be supervised by the district of residence.
The foregoing terms of Blume's sentence are within the applicable Guidelines ranges. This sentence is subject to modification at the sentencing hearing now set for February 14, 2004.
It is so ordered.