The mail fraud statute, 18 U.S.C. § 1341, and the wire fraud statute, 18 U.S.C. § 1343, are treated in an identical manner.See United States v. Slevin, 106 F.3d 1086, 1088 (2d Cir. 1996) ("Because these statutes [ 18 U.S.C. § 1341 and § 1343] use the same relevant language, they are analyzed in the same way."). These statutes "prohibit the use of the mails or wires in furtherance of `any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.'"
While a district court is not required to hold full-blown evidentiary hearings to address sentencing disputes, it must "afford the defendant some opportunity to rebut the [g]overnment's allegations." United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996) (quoting United States v. Eisen, 974 F.2d 246, 269 (2d Cir. 1992)). First, we note that Vassar's counsel sufficiently preserved his right to appeal the stolen firearm enhancement by arguing at sentencing that the evidence was insufficient to support a finding that the firearm was stolen.
Neither the Due Process Clause nor the Guidelines require the district court to resolve sentencing disputes through a "`fullblown evidentiary hearing.'" United States v. Phillips, 431 F.3d 86, 93 (2d Cir. 2005) (quoting United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996)). "[T]his is not the sort of situation where all a defendant need do is knock on the hearing room door, and it will automatically open to him."
We essentially agree with the Government. A district judge has broad discretion "as to what types of procedure are needed" at a sentencing proceeding for determination of relevant disputed facts. United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996). The discretion of a sentencing court is similarly broad "either as to the kind of information [it] may consider, or the source from which it may come."
All that is required is that the court afford the defendant some opportunity to rebut the Government's allegations.” United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996) (internal quotation marks and citations omitted). “[T]he procedure followed in resolving disputed factors at sentencing rests in the district court's sound discretion.
It is well-settled within the Second Circuit that "[t]he procedure followed in resolving disputed factors at sentencing rests in the sound discretion of the trial court." United States v. Ibanez , 924 F.2d 427, 430 (2d Cir. 1991) ; seeUnited States v. Slevin , 106 F.3d 1086, 1091 (2d Cir. 1996) ("Decisions as to what types of procedure are needed lie within the discretion of the sentencing court and are reviewed for abuse of discretion."). "When deciding between an evidentiary hearing and another means of obtaining ‘adequate’ information, a ‘sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law.’ "
The purported agreement between U.S. Oil and Gas and the Fort Peck Tribe regarding the illusory oil refinery furthered the fraud scheme by "lulling the victims" into believing that the refinery actually existed. United States v. Slevin, 106 F.3d 1086, 1089-90 (2d Cir. 1996).
In addition, a district court is "not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing disputes." United States v. Phillips, 431 F.3d 86, 93 (2d Cir. 2005) (quoting United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996)); United States v. Midyett, No. 07-CR-874 (KAM), 2010 WL 1423951, at *2 (E.D.N.Y. Apr. 7, 2010). Rather, "[a]ll that is required is that the [C]ourt afford the defendant some opportunity to rebut the Government's allegations."
Sentencing courts have broad discretion to determine how to deal with disputes that arise during sentencing. United States v. Preston, 499 Fed.Appx. 70, 74 (2d Cir.2012) ; see also United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir.1996). “The district court is not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing disputes.” Slevin, 106 F.3d at 1091 ; United States v. Vassar, 541 Fed.Appx. 58, 60 (2d Cir.2013) (“A criminal defendant has no right to demand an evidentiary hearing to present his own witnesses at sentencing....” (quotation omitted)). Instead, the court must only “afford the defendant some opportunity to rebut the Government's allegations.”
The defendant's position cannot be accepted as the basis for a motion to dismiss. Use of the mails or a private commercial interstate carrier may bring a fraud within the scope of 18 U.S.C. § 1341 even after the commission of a fraud if, for example, the mailings were used to "lull[] the victims into believing they received the services fraudulently promised,"United States v. Slevin, 106 F.3d 1086, 1090 (2d Cir. 1996), or to maintain a perpetrator's "good reputation" with potential victims, Schmuck v. United States, 489 U.S. 705, 711-12 (1989). This specifically includes the provision of receipts to victims of a fraud.