E. ECONOMIC LOSS TO COMPETITORSIn addition to the loss suffered by Subject's customers, there
were other recognizable economic losses. It is clear that by
reaching the market as a result of fraud, Subject's products
wrongfully displaced identical products manufactured by reputable
drug companies. Those drug products had been researched, approved,
manufactured and distributed in accordance with the FDA's
regulatory scheme and thus, unlike Subject's drugs, had been proven
to be safe and effective. Subject's competitors were thus injured
as a direct result of the illegal conduct of XXXXXXX and his
coconspirator. This loss, standing alone, would justify the
18-level enhancement under the Sentencing Guidelines for monetary
Based on the declaration of MX. XXXXXXX, Subject (under MX.
XXXXXXX's direction) sold 1.25 billion dyazide capsules. (J.A.
178a) at the average price of $110 per 1,000 capsules. (J.A. 179a)
XXXXXXX further stated that the innovator sold these capsules at
the rate of $250 per 1,000 capsules. (J.A. 179a) Thus, according
to XXXXXXX's own declaration, the innovator firm, SmithKline
Corporation, lost almost $300,000,000 in revenue as the result of
FN16. It could be judicially noticed that generic
drugs must, by their very nature, be in competition with the
innovator drugs that they are designed to mimic. Under 21 U.S.C.
§ 355, if there is no innovator, there can be no generic.
That such a loss could appropriately be contemplated by the
Judge was made clear in the recently decided case of United
Andersen, 45 F.3d 217 (7th Cir. 1995). There, the court
in a case in which the defendants sold veterinary drugs without FDA
approval, that "[a]s a matter of economic theory at least, assuming
fixed amount of product to be distributed to a given set of
one competitor's gain ought to equal the others' loss." 45 F.3d at
To be sure, under the "unique" (id.) set of circumstances
the court in the Andersen case, this particular enhancement
lacked a factual basis. But the deficiencies in the factual record
-- no evidence of "whether there were any actual competitors in the
market the defendants were serving [or] whether consumers would
bought from the defendants' competitors", id. -- is not
here. By the very nature of generic drugs competitors existed and
pharmacists and physicians never would have dispensed or prescribed
Subject's products had they known the truth about how those
reached the marketplace, that they had not been manufactured using
approved formula, and that they had not been tested in their
By analogy, in copyright infringement cases, various courts
have held that either lost profit to the copyright holder, or gross
revenue from the sale of the bootlegged property are appropriate
measures of the loss. See United States v.
952 F.2d 672, 674 (2d Cir. 1992); United States v.
F.2d 1110, 1118 (9th Cir. 1991), cert. denied, 113 S. Ct.
In this case, at XXXXXXX's direction, Subject illegally sold
products which a limited number of firms (the innovator firm and in
some instances an approved generic), had a legal monopoly to sell.
Those competitors were their victims, just as were the legal
competitors to the illegal products in the cases cited
above.Accordingly, even if this Court were to accept the
Appellant's argument that Subject's customers received something of
value, loss to competitors would fully justify the sentence that
MX. XXXXXXX received.
F. POSSIBLE UPWARD DEPARTURES
As explained below, there are at least three separate grounds
on which the Court could have departed upward based on the facts in
The drafters of the sentencing guideline addressing fraud --
U.S.S.G. § 2F1.1 -- recognized that, in certain cases, the
cognizable monetary loss attributable to the fraudulent conduct at
issue might "not fully capture the harmfulness and seriousness of
the conduct." Id. at Application Note 9. Accordingly, in
such cases, the drafters suggested that "an upward departure may be
warranted." Id. One instance recognized by the drafters in
which such a departure might be warranted concerned cases where the
fraud risk involved reasonably foreseeable, substantial
This is such a case. The particular fraudulent conduct at
issue here materially increased the risk that Subject's
fraud-tainted products would not be safe or effective. This fact
would support the imposition of an upward departure in accordance
with Application Note 9(a) to U.S.S.G. § 2F1.1. His conduct
enormously disrupted the FDA's ability to do its job. It will
never be known whether the defendant's conduct caused sickness or
death that otherwise would not have occurred. But what is
demonstrably clear is that the defendant's conduct unacceptably
enhanced the risk of such harm.
As this Court acknowledged in Chatterji, when the risk
of loss is great - a departure may be appropriate. U.S.S.G. §
2F1.1, comment, (Application note 7(b) - Nov. 1994).
Chatterji at 1346. In this case, unlike the drugs in
Chatterji, Subject's drugs never went through the necessary
testing, either before or after approval. Accordingly, the risk
was great. As the court in Andersen, supra, recognized, the
fraud at issue here is a textbook example of the sort of fraud for
which a "risk of harm" upward departure is warranted. XXXXXXX
defrauded the FDA, thus causing harm to the public, and this
"non-monetary harm can be recognized and used in calculating the
sentence .... [U]pward departure may certainly be warranted by the
non-monetizable risk to human ... health caused by the defendants'
failure to follow FDA licensing regulations ... and intentional
marketing of unapproved drugs." Anderson, 45 F.3d at
2. Disruption of Governmental Function
MX. XXXXXXX's crimes greatly contributed to America's loss of
confidence in the generic drug industry and in the FDA's ability to
regulate that industry. Section 5K2.7 of the Sentencing Guidelines
provides in pertinent part that, "[i]f the defendant's conduct
resulted in a significant disruption of a governmental function,
the court may increase the sentence above the authorized guideline
range to reflect the nature and extent of the disruption and the
importance of the governmental function affected." Here, the
sentencing court was well aware from its prior involvement in more
than 50 generic drug cases, and as FDA regulators could testify at
any subsequent hearing, FDA's review and approval of ANDAs and ANDA
supplements was substantially slowed -- particularly between 1989
and 1991 -- by the emerging scandal in the generic pharmaceutical
industry. Consequently, an upward departure could be warranted in
this case. E.g., United States v. Heckman, 30 F.3d
738, 743 (6th Cir. 1994) (departure from range of 1-7 months to 24
months warranted where Internal Revenue Service "employees expended
enormous effort to identify and correct the false information
resulting from [defendant's] filings"); United States v.
Murillo, 902 F.2d 1169, 1171-74 (5th Cir. 1990) (upward
departure from 15-21 months to 48 months upheld on ground that
defendant's sale of numerous illegal immigration documents
"severely compromised" a local amnesty program).[FN17]
FN17. It is certainly not the government's contention
that this defendant alone was responsible for all the disruption
that flowed from the generic drug scandal. But without question he
is responsible for a major portion of it which, we submit, could be
recognized with an upward departure under Section 5K2.7.
See United States v. Rowe, 999 F.2d 14, 18-19 (1st
Cir. 1993) (evidence that defendant's own conduct caused loss of
confidence in important institution not required to support upward
departure where government proved loss of confidence based on
climate of fraud in which defendant and others participated).
As noted above, the sentencing court found that: "Most
Americans have lost tremendous confidence in generic drugs." (J.A.
148a). Loss of confidence in the important institution of generic
drugs would, standing alone, support an upward departure. U.S.S.G.
§ 2F1.1 - Application Note 9(e).
G. GUIDELINE ANALYSIS - CONCLUSION
The sentencing judge found economic loss in excess of $80
million.[FN18] Appellant has the burden to prove that this
finding is clearly erroneous. In addition, the record supports
numerous upward adjustments and departures that the sentencing
court did not use. Further, given XXXXXXX's price-fixing
conviction, the Court would have been fully justified in sentencing
MX. XXXXXXX at the high end of the guideline range. As noted
above, given the facts in this case the Court showed great leniency
to MX. XXXXXXX. No manifest injustice was done. The sentence as
imposed should be sustained.
FN18. When, in an effort to limit the upward
adjustment under U.S.S.G. § 2F1.1(b), XXXXX's counsel argued
that Subject's customers had received something of value, the Court
immediately responded by stating: "Absolutely not." (J.A. 131a)
II. PETITIONER HAS NOT DEMONSTRATED THAT THE COURT
IMPOSED SENTENCE BASED ON A MISTAKE OF MATERIAL FACT
Petitioner constructs an imaginative, albeit disingenuous,
argument from two passing statements made by the Court long after
XXXXXXX's sentencing hearing, in proceedings to which MX. XXXXXXX
was not a party. These proceedings were a hearing in December
1993, on a Rule 35 motion filed by XXXX XXXXX (Subject's former
Vice-President) (J.A. 181a) and the Rule 11 plea hearing for
Subject and XXXXXXX XXXXXXXX (Subject's former Treasurer) on
antitrust charges in October 1993. (J.A. 206a)
To be successfully attacked in a Section 2255 motion, the
petitioner would have to prove that the sentence had been imposed
in violation of the Constitution or laws of the United States.
United States v. Coyer, 732 F.2d 196, 199 (D.C. Cir. 1984).
Specifically, to justify the relief sought, XXXXXXX would have to
have proved that at the time of sentencing the judge had
proceeded under a misapprehension as to a material
fact which, if it had been correctly understood, the result
at sentencing would be different. United States v.
Addonizio, 442 U.S. 178, 179 (1979); Dean v. United
States, 752 F.2d 535 (11th Cir. 1985), cert. denied, 479
U.S. 824 (1986) United States v. Gonzales, 765 F.2d 1393,
1396 (9th Cir.) cert. denied, 474 U.S. 1068; 106 S.
Ct. 826 (1989).
XXXXXXX did not meet that burden. These two passing
statements were made so long after the XXXXXXX sentencing that they
shed no light on the District Court's knowledge of those facts at
the time of sentencing. Further, even if these statements had been
made at or near the time of XXXXXX XXXXXXX's sentencing they were
not material, as neither related to an operative fact in
determining XXXXXXX's sentence.
A. XXXXXX'S RULE 35 HEARING
In December 1993, almost a full year after the XXXXXXX
sentencing in January 1993, XXXX XXXXXX appeared before the
District Court pursuant to Rule 35, Fed. R. Crim. P. to receive
credit for the substantial assistance that he provided to the
Antitrust Division of the U.S. Department of Justice in connection
with their investigation of price-fixing in the generic drug
industry. During that hearing, government counsel noted that
without MX. XXXXXX' cooperation the government would not have been
able to successfully prosecute an antitrust case against Subject,
Vitarine, XXXXXXXX XXXXXXXX and Roger Jordan. (Transcript of
XXXXXX' Rule 35 Hearing - December 3, 1993, J.A. 182a) Also during
that hearing, which occurred almost 1« years after MX. XXXXXX
entered prison in July 1992, it was noted that MX. XXXXXX, age 65,
had "aged badly in person," was in frail health, and was
desperately needed at home because of a family crisis. Id.
In light of these facts, the District Court reduced MX. XXXXXX'
sentence by 15 months from 48 to 33 months, stating that it
intended to give MX. XXXXXX as much credit for cooperation as it
had given to MX. XXXXXXX. (J.A. 201a) As noted by government
counsel at XXXXXX' hearing, MX. XXXXXXX had received a 2-level
downward departure for his cooperation with the Antitrust Division
and the government recommended an equivalent reduction for MX.
XXXXXX. (J.A. 192a) The District Court accepted that
In that hearing, in considering a request for a greater
sentence reduction made by Mr. River's counsel, the District Court
said: "maybe XXXXXX got credit for downward departures when he
pled" (J.A. 196a). From that statement, which was corrected in
the very next line of the transcript, Appellant suggests that it
had proved that, almost one year earlier when the District Court
sentenced XXXXXXX, it was under the mistaken belief that when MX.
XXXXXX was sentenced to 48-months imprisonment, that the XXXXXX'
sentence included a downward departure for substantial assistance
to the government and, as a result of that mistake of fact, the
XXXXXXX's sentence was higher than it would otherwise have been.
Such logic could accurately be described as specious. These
passing remarks were made long after XXXXXXX was sentenced, in
proceedings to which he was not a party. Considering the nature of
the remarks, the passage of time, and the hundreds, if not
thousands, of matters that came before the sentencing judge during
the interim period, the government submits that these remarks shed
no light on the Court's understanding of the relevant facts at the
time MX. XXXXXXX was sentenced.
B. XXXXXXXX/Subject ANTITRUST PLEA
At this hearing in October 1993, nine months after the
XXXXXXX sentencing, the issue before that court was whether to
accept a plea of nolo contendere to price-fixing
charges. During the discussion, it was noted that MX. XXXXXXX
would be a key government witness in the event those charges went
to trial. The District Court then noted that MX. XXXXXXX had some
credibility problems. In that context, the District Court
accurately stated that he did not hear from a single person in the
entire Subject case who had recommended XXXXXXX for honesty, not
even XXXXXXX's own mother. In his Section 2255 Motion, XXXXXXX
enclosed a Declaration from his mother, XXXXXXX XXXXXXX, who
admitted that she "did not write the Court a letter of support for
her son." (J.A. 205a) But then went on to say that: "Had I
written such a letter, I would have vouched for his honesty and
From this, Appellant suggests that it was clear error for the
District Court not to have found that he had proven that his
sentence resulted from a material mistake of fact on the part of
the sentencing judge. This argument is ludicrous. MX. XXXXXXX is
62-years-old and admitted to crimes that placed him at offense
level 32 before downward adjustments. (J.A. 258a) No judge can be
presumed to have imposed a harsher sentence because the file did
not contain a letter from the defendant's mother attesting to his
honesty. The proposition that it was clear error for the District
Court not to have found that this statement, made several months
after MX. XXXXXXX's sentencing, and which actually is true
(XXXXXXX's mother did not send a testimonial to the judge before
sentencing), proved that MX. XXXXXXX received a harsher sentence
because of a material misapprehension of fact at sentencing is
ludicrous on its face. It is even more ludicrous here, in a
context where the Appellant was sentenced near the bottom of the
guideline range, after receiving a 3-level reduction for acceptance
of responsibility, a 4-level downward departure for his cooperation
with the government, no adjustment upward for his felony antitrust
conviction, and none of the many, readily available, upward
C. THE SENTENCE AS IMPOSED WAS NOT IN VIOLATION OF
DUE PROCESS RIGHTS
Neither the manner in which MX. XXXXXX' sentence was
calculated nor MrX. XXXXXXX's opinion of her son's character could
serve as a legal basis for a departure. Accordingly, even if the
Court were misinformed on these facts, which as explained above
there is no reason to believe was the case, they are not material
and therefore provide no basis for relief.
III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Appellant also claimed that his trial defense counsel was
deficient in two areas. First, that he did not move for a downward
departure based on the disparity between XXXXXXX's sentence and
those of his subordinates at Subject, and second, that the
guideline calculation overstated the seriousness of the offense.
As will be explained below, these claims are frivolous.
A. STANDARD OF REVIEW
In order to overturn his sentence based on the ineffectiveness
of his counsel, XXXXXXX had the burden of establishing that his
attorney's performance was seriously deficient and that counsel's
errors so prejudiced his defense that he was deprived of a fair
trial. The question was whether counsel was so ineffectual that
the result was thereby not reliable. Strickland v.
Washington, 466 U.S. at 687.
In order for the Section 2255 motion to have been granted,
XXXXXXX would need to have proven that "but for the unprofessional
errors [of his trial attorney] the results in the proceeding would
have been different". Carter v. Holt, 817 F.2d 699, 701
(11th Cir. 1987). United States v. Hoyle, 33 F.3d 415, 418
(4th Cir. 1994), cert. denied, 115 S. Ct. 949 (1995);
Perry v. Leeke, 832 F.2d 837, 840 (4th Cir. 1987), cert.
granted, 485 U.S. 976 (1988), judgment aff'd, 488 U.S.
272 (1989). XXXXXXX needed to show that his attorney failed to
exercise the skills and diligence that a reasonably competent
attorney would demonstrate under similar circumstances, and that
he, XXXXXXX, suffered material prejudice as a result. United
States v. Custis, 988 F.2d 1355, 1362 (4th Cir.) cert.
granted, 114 S. Ct. 299 (1993), judgment aff'd, 114 S.
Ct. 1732 (1994). Conclusory allegations and speculation are
insufficient as a matter of law to rebut the presumption of
competency. See Clanton v. Blair, 619 F. Supp. 1491,
1496 (E.D. Va. 1985). Further, in order to prevent a flood of
intrusive post-trial inquiries, there is a strong presumption that
counsel provided effective assistance. Harich v. Dugger,
844 F.2d 1464, 1469 (11th Cir. 1988), cert. denied, 489 U.S.
The Appellant had the burden of demonstrating specific errors
that actually impacted the outcome of the proceeding. Further,
counsel's deficiencies must be "outside the wide range of
professionally competent assistance." Strickland v.
Washington, 466 U.S. at 690. To demonstrate prejudice, the
petitioner must prove that "there is a reasonable
probability that, but for counsel's unprofessional errors
the result ... would have been different." United States v.
Malave, 22 F.3d 145, 147 (7th Cir. 1994) (emphasis added)
(quoting Strickland, 466 U.S. at 694). Therefore, in
considering the merits of petitioner XXXXXXX's claim, the Court
must ask: had trial counsel done as is now suggested whether
petitioner would have "had a reasonable probability of
receiving [the requested] sentencing reductions ...." [emphasis
added] United States v. Partee, 31 F.3d 529, 533 (7th Cir.
1994).In resolving claims of ineffective assistance of counsel, the
District Court must look at the totality of the circumstances and
the entire record. Griffin v. Wainwright, 760 F.2d 1505,
1510 (11th Cir. 1985), vacated on other
grounds, 476 U.S. 1123 cert. denied, 476 U.S.
1123 (1986). In such a motion, the Section 2255 petitioner bears
a very heavy burden of proof because of the strong presumption that
counsel's representation was reasonable. Lema v. United
States, 987 F.2d 48, 51(1st Cir. 1993).
With regard to XXXXXXX's request for a hearing on this issue,
the burden was also on petitioner to justify the need for an
evidentiary hearing. Thames v. Dugger, 848 F.2d 149, 151
(11th Cir. 1988); Thomas v. Zant, 697 F.2d 977, 977 n.2
(11th Cir. 1983), vacated on other grounds, 478 U.S. 1016
(1986). A hearing is not required on claims based upon unsupported
allegations or where petitioner's allegations are affirmatively
contradicted by the record. United States v. Guerra, 588
F.2d 519, 520-21 (5th Cir. 1979) cert. denied, 450
U.S. 934 (1981). See also Moran v. Hogan, 494
F.2d 1220 (1st Cir. 1974); Chandler v. United States, 413
F.2d 1018, 1019 (5th Cir. 1969).
Likewise, were XXXXXXX not entitled to relief, even if those
factual allegations in his motion had been true, the District Court
would have no need to conduct an evidentiary hearing. United
States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981); Moran
v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974); Honneus v.
United States, 509 F. Supp. 1135, 1137 (D. Mass. 1981).
B. APPELLANT HAS NOT DEMONSTRATED ANY
INAPPROPRIATE SENTENCE DISPARITY
The burden of showing sentencing factor manipulation rests
with the defendant. United States v. Gibbens, 25 F.3d 28,
31 (1st Cir. 1994). Here, however, XXXXXXX has not alleged that
the government unfairly manipulated his sentence upward. In fact,
XXXXXXX conceded that the Court utilized the correct guideline in
his case. (XXXXXXX's 2255 Memorandum at 19, Dkt Entry # 42). He
alleged that the government unfairly manipulated other individuals'
sentences downward. XXXXXXX offered no evidence of this, but even
if true and proven, it would not justify a reduction of sentence
Disparity of sentences among co-conspirators, absent actual
prosecutorial misconduct, is not a proper basis for departure.
United States v. Fonville, 5 F.3d 781, 783 (4th Cir. 1993),
cert. denied, 114 S. Ct. 1839 (1994); United States v.
Ellis, 975 F.2d 1061, 1963 (4th Cir. 1992), cert.
denied, 113 S. Ct. 1352 (1993). While such disparity may seem
inequitable, utilizing this theory to justify "a downward departure
would be tantamount to trying to make two wrongs equal a right."
Id. at 1006 n.2. XXXXXXX did not allege, let alone prove
any misconduct by the government.
Further, the government submits that Appellant's argument is
negated by the holding in United States v. Hall, 977 F.2d
861, 863-65 (4th Cir. 1992). In Hall, in rejecting a
sentence disparity argument, this Court concluded that a district
court can no more rely on an invalid factor in determining whether
to depart than it can in determining how far to depart. Under
Hall, the only factors on which a district court may rely in
determining the extent of a downward departure are those that could
independently support the initial decision to depart. Id.
C. THE GUIDELINES DID NOT OVERSTATE
THE SERIOUSNESS OF MX. XXXXXXX'S CRIMES
XXXXXXX's argument that the guidelines as applied to him
overstated the seriousness of his criminal conduct is based on a
false premise. He claimed that Subject's customers received what
they expected -- generic drugs which had the same effect as their
brand name equivalents. (XXXXXXX Brief, at 25) This premise,
however, ignores that when XXXXXXX's counsel, at the sentencing
hearing, put forward that exact same argument, the Court expressly
rejected it finding:
Not one of the consumers received the product for which
theybargained. Not one of these products was the product that
wasprescribed by the doctor or they bargained for because theyall
had defects in them of some sort or the other.
(J.A. 131a). Accordingly, had XXXXXXX's counsel moved for a
downward departure on this ground, there is no possibility that it
would have been granted. To argue that the failure to make such a
frivolous motion constituted ineffective assistance is, in itself
In United States v. Watts, 52 F.3d 335 (9th Cir. 1995),
defendant argued that his counsel was ineffective because he failed
to argue for a downward departure based on defendant's history of
mental illness. The Court concluded that, since counsel argued for
a sentence at the low end of the guideline range based on the
defendant's mental state, and the court refused to do so, that it
was not reasonably probable that the result would have been
different had counsel moved for a departure. Here, even though
XXXXXXX's counsel raised this argument, he was not sentenced at the
bottom of the range. It is not probable that had XXXXXXX's trial
attorney simply used the word "departure' that the result would
have been different.
D. XXXXXXX'S TRIAL DEFENSE COUNSEL
PROVIDED COMPETENT REPRESENTATION
In light of the numerous upward departures that were possible
given the facts of this case, trial defense counsel recognized that
it was very difficult to forcefully make arguments that would
adjust the sentencing range downward (let alone move the court for
departures), "without at the same time appearing in some way to be
attempting to minimize the seriousness of the crimes..." (J.A.
133a). Attempting unsuccessfully to minimize the seriousness of
the crimes could have damaged the credibility of the defense and
thereby resulted in a sentence at the upper end of the guideline
range (based on the seriousness of the offense and the antitrust
violations), an upward departure based on the disruption of the
FDA, risk of harm, and destruction of confidence in generic drugs,
and/or result in less of a downward departure under U.S.S.G. §
5K1.1., which (even though XXXXXXX had initially lied to the
government in his initial cooperation interviews (J.A. 116a and
136a) the Court stated was more of a downward departure than he had
given to anyone else. (J.A. 156a)
As noted above (at p. 13), MX. XXXXXXX received a sentence
that was approximately one half of what it could have been without
any upward departures. In addition, as pointed out above, there
were numerous potential departures which the Court could have
utilized and, given the price-fixing conviction, a sentence at the
top of the range would have been justified. Given the health risks
that Subject's drugs posed to the American public, given the money
that MX. XXXXXXX and his firm made, given the negative impact that
MX. XXXXXXX's conduct had on the generic drug industry, and given
the negative impact that MX. XXXXXXX had on the lives of the
Subject employees, it is a tribute to his trial defense counsel's
skill that the Appellant received as lenient a sentences as he
MX. XXXXXXX's representation was very skilful. This claim is
IV. THE RULE 32(a)(2) PROBLEM HAS BEEN ADEQUATELY ADDRESSED
A. XXXXXXX'S RIGHT OF APPEAL HAS BEEN REINSTATED
This Court has held that failure of the sentencing court to
advise a convicted defendant of his right to appeal, as required by
Rule 32(a)(2), Fed. R. Crim. P.,[FN19] requires the reinstatement
of the defendant's right to appeal. United States v. Paige,
443 F.2d 781, 782 (4th Cir. 1971). This per se rule
was adopted in order to avoid litigating the question of whether
the defendant had been fully informed of his right to appeal.
FN19. Former Rule 32(a)(2), Fed. R. Crim. P., is now
This per se rule is not in force in all circuits,
See McCumber v. United States, 30 F.3d 78, 79 (8th
1994). However, while the language of Rule 32 has changed
since Paige, there is no indication that this Court has
the per se rule it articulated in Paige. Given
the record in this case did not affirmatively reflect that MX.
was advised of his right to appeal his sentence, the District Court
issued a new judgment of conviction from which MX. XXXXXXX could
take a timely appeal. Appellant argues that this was inadequate and
the District Court should have held an additional sentencing
Adopting the language used by the Court of Appeals for the Third
Circuit, the United States suggests that given the circumstances of
case "to require the formality of a resentencing would be a useless
time-consuming gesture" United States v. Deans, 436 F.2d
(3d Cir.), cert. denied, 403 U.S. 911 (1971).
In asking that this case be remanded for resentencing,
Appellant noted that: "[t]he district court recognized that MX.
XXXXXXX had been deprived of his right to appeal, but failed to
grant effective relief." (Appellant's Brief at 19). XXXXXXX then
suggests that the only appropriate relief that could be granted
would be for the District Court to reprise the sentencing
First, the claim that MX. XXXXXXX was deprived of his right of
appeal is a bit of overstatement. Appellant accurately noted that
after the XXXXXXX sentencing the District Court failed to inform
him, on the record, that he had the right to appeal the sentence.
Appellant also accurately noted that former Rule 32(a)(2), Fed. R.
Crim. P., expressly directed the sentencing court to do so and that
this Court has applied a per se rule in reviewing
such error. However, MX. XXXXXXX has never suggested that his very
experienced, retained counsel, had not in fact fully informed him
of his appellate rights. This issue presents a technical error
that in no way, in this case, adversely impacted the rights of MX.
XXXXXXX. This is a situation where the Appellant is properly
utilizing a loophole to resurrect his standing to appeal, nothing
more, nothing less. Accordingly, but for the per se
rule applied to such errors in this circuit by United States v.
Paige, 443 F.2d 781 (4th Cir. 1971), MX. XXXXXXX's, appellate
rights would quite properly have lapsed almost two years ago when
the facts were still fresh.[FN20]
FN20. Appellant claims that the District Court's
order was inadequate to grant jurisdiction to this Court. If this
Court believes that a direct appeal on the present record is
inappropriate, it may wish to consider whether the per
se rule is applicable here. See McCumber v.
United States, 30 F.3d 78 (8th Cir. 1994).
In response to Appellant's motion below, the United States
suggested that the District Court's failure to advise the Appellant
of his right to appeal his sentence related to matters which
occurred, or more appropriately did not occur, only after the
sentence was imposed. Thus, the failure of the trial judge to
inform the defendant of his right to appeal the sentence in no way
impacted the sentencing procedure which preceded it. A requirement
that the district court repeat the sentencing procedure de
novo because it failed to perform a post-sentencing,
ministerial task, would be a gross waste of the Court's time as
well as that of the U.S. Probation Office, and of any witnesses who
would be called at the sentencing. Particularly here, where the
defendant was convicted of serious offenses almost four years ago
(Plea hearing, November 7, 1991, see docket entry 3, J.A.
4a), the course suggested by the Appellant is ill advised. The
District Court's order on July 18, 1995, (J.A. 255a), put the
defendant in exactly the same legal position that he would have
been in on January 25, 1993, when sentence was imposed. He had 10
days within which to file his appeal.
Appellant's suggestion that this Court direct the District
Court to redo the sentencing hearing, without any finding by this
Court that the hearing was in any way deficient, should be
B. XXXXXXX HAS NOT DEMONSTRATED BIAS ON THE PART
OF THE SENTENCING JUDGE
Appellant has made no showing that, in the event a remand is
ordered, this case should be assigned to a different judge.
Appellant has met none of the three tests set out in United
States v. Guglielini, 929 F.2d 1001 (4th Cir. 1991). In
Guglielini this Court held that "absent some affirmative act
on our part, we shall be locked in an endless cycle of remands and
renewed appeals that will leave us no closer [to resolution].
As a claimed basis for assigning this case to a different
sentencing judge, Appellant only points to the District Judge's
expressed disagreement with this Court' ruling in United States
v. Chatterji, 46 F.3d 1336. What the Appellant neglects to
note, however, is that the District Judge's expressed disagreement
with the holding in Chatterji was no more vociferous than
that of the dissenting judge on the panel of this Court that handed
down the Chatterji decision and, of greater importance,
Appellant failed to note that after the remand of Chatterji,
to the same sentencing judge, he followed both the letter and the
spirit of this Court's holding.
If the District Court followed this Court's holding on the
Chatterji remand, on what basis could it be concluded that
the same judge would not again follow the ruling of this Court if
it remanded XXXXXXX? The United States suggests that no such basis
exists. While strongly urging that there is no basis for a remand,
if this Court concludes otherwise, the United States submits that
there would still be no basis to send this case to a new judge.
See Kopf v. Skyrm, 993 F.2d 374, 381 (4th Cir.
The District Court acted appropriately when it issued a new
judgment that would allow MX. XXXXXXX to appeal the sentence that
was imposed. Based on the facts already before the District Court,
the sentence that was imposed in January 1993, could be reimposed
without the taking of additional evidence.
This appeal is properly before this Court. It would serve no
proper purpose to remand the case to the District Court to hold an
additional sentencing hearing. This Court should resolve the
issues raised by MX. XXXXXXX's appeals. However, in considering
the issues raised: Appellant has not established that, given the
unchallenged facts presented at sentencing, the findings of the
District Court that XXXXXXX's crimes resulted in economic loss, was
clearly erroneous. The sentence which has been challenged on
direct appeal was therefore appropriate. Likewise, the Appellant
has not established that his sentence was affected by any
misapprehension of material facts by the District Court. Finally,
Appellant has not established that his trial defense counsel
provided inadequate representation at sentencing and that counsel's
failings resulted in a more severe sentence. Accordingly, the
sentence of the District Court, which is being challenged on direct
appeal, as well as its denial of Appellant's Motion To Vacate The
Sentence, pursuant to 28 U.S.C. § 2255, should be affirmed.
Lynne A. Battaglia
United States Attorney
District of Maryland
Gary P. Jordan
First Assistant U. S. Attorney
600 United States Courthouse
101 W. Lombard Street
Baltimore, Maryland 21202
(410) 962-2458 ext.369
Lawrence G. McDade
Office of Consumer Litigation
U. S. Department of Justice
P.O. Box 386
Washington, D.C. 20044
[updated June 1998]