Summary
finding two-level sophisticated means enhancement appropriate for Ponzi scheme perpetrated for three years
Summary of this case from United States v. MacCallumOpinion
Docket No. 09-2704-cr.
June 18, 2010.
Appeal from a judgment of conviction of the United States District Court for the Southern District of New York (Marrero, J.), sentencing appellant Hayim Regensberg principally to one hundred months incarceration.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.
Darrell B. Fields, New York, NY, for Appellant.
Michael Levy, Assistant United States Attorney, (Joan M. Loughnane, Marc P. Berger, Assistant United States Attorneys, of counsel, on the brief) for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee.
SUMMARY ORDER
Appellant Hayim Regensberg appeals from the June 22, 2009 judgment of conviction of the United States District Court for the Southern District of New York (Marrero, J.), sentencing Regensberg principally to one hundred months' incarceration. Regensberg was convicted, following a jury trial, on two counts of securities fraud and five counts of wire fraud. At sentencing, the district court determined that the two-level sophisticated means enhancement of § 2B1.1(b)(9)(C) of the United States Sentencing Guidelines ("Guidelines") applied to Regensberg's crimes. United States v. Regensberg, 635 F.Supp.2d 306 (S.D.N.Y. 2009). We assume the parties' familiarity with the facts, procedural history, and issues on appeal. For the following reasons, we affirm.
In calculating Regensberg's appropriate sentence under the advisory Guidelines, the district court imposed a two-level enhancement under U.S.S.G. § 2B1.1(b)(9)(C), which applies where the offense "involved sophisticated means." Regensberg challenges this enhancement. Regensberg also challenges the substantive reasonableness of his sentence. "When a defendant challenges the district court's interpretation of a Guidelines provision, we review this interpretation of the Guidelines-just as we would review the interpretation of any law — de novo." United States v. Hasan, 586 F.3d 161, 168 (2d Cir. 2009) (citing United States, v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009) ("In general, we review a district court's determination that a defendant deserves a[n] . . . enhancement . . . de novo. . . .")). We review the district court's sentencing for "unreasonable[ness]." United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A sentence must be both procedurally and substantively reasonable. United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir. 2005). We consider each of these prongs under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We review the reasonableness of a sentence for abuse of discretion and will "set aside a district court's substantive determination only in exceptional cases where the trial court's decision cannot be located within the range of permissible decisions." United States v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009) (internal quotations marks omitted). In examining the substantive reasonableness of a sentence, "we take into account the totality of the circumstances, giving due deference to the sentencing judge's exercise of discretion." United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).
The government urges the Court to apply clear error review to our review of the district court's determination that the sophisticated means enhancement applies, as we have done when reviewing a district court's determination of whether a role adjustment applies. See United States v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006) ("[A]s a general matter, in determining the appropriate standard of review for a district court's application of the Guidelines to the specific facts of a case, we should follow an `either/or approach,' adopting a de novo standard of review when the district court's application determination was primarily legal in nature, and adopting a `clear error' approach when the determination was primarily factual."); see id. at 349-50 (applying clear error review where the district court's application of a role adjustment to the facts of the case presented an issue that is predominantly factual). We need not reach this issue because we decide that even under de novo review the district court did not err in applying a sophisticated means enhancement in this case.
Regensberg argues that his sentence is procedurally unreasonable because the sophisticated means enhancement should not have been applied. The commentary to the Guidelines defines sophisticated means as "especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense." U.S.S.G. § 2B1.1(b)(9)(C), n. 8. Here, the record shows that Regensberg conducted a complex and sophisticated scheme, including the creation of fraudulent loan documents, detailed reporting of fake earnings, use of Ponzi scheme payments to lull his investors, and alteration of an account statement to make it appear as if he had not lost his investors' money. See United States v. Jackson, 346 F.3d 22, 25 (2d Cir. 2003) ("[E]ven if each step in the scheme was not elaborate, the total scheme was sophisticated in the way all the steps were linked together ");
Regensberg also argues that his sentence is substantively unreasonable, claiming that it is an unreasonable punishment in light of the factors set forth in 18 U.S.C. § 3553(a). We find no basis for concluding that the prison term imposed is unreasonable, given that the district court's extensive articulation of the reasons for the prison term imposed is more than sufficient to show that the court considered the Guidelines and the required § 3553 factors. The district court was therefore reasonable in imposing Regensberg's sentence. United States v. Lewis, 93 F.3d 1075, 1083 (2d Cir. 1996) (holding, in tax case, that the sophisticated means enhancement applied even when "each step in the planned tax evasion was simple, [because] when viewed together, the steps comprised a plan more complex than merely filling out a false tax return."). As in Lewis, Regensberg's offense conduct, which he perpetuated for three years, was the sort of "repetitive conduct . . . [that] demonstrates that more than rovitjne planning was involved." 93 F.3d at 1.683. We agree with the district court that a two-level enhancement for sophisticated means is appropriate.
For the foregoing reasons, the judgment of the district court is AFFIRMED.