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Circuit Vacates Above-Guidelines Sentence Based on Comments Concerning Deterrence and Russian Organized Crime

In United States v. Vinokurov, the Second Circuit (Wesley, Carney, Nardini) issued a summary order directing the district court to resentence Defendant Avtandil Khurtsidze in connection with his conviction on charges of racketeering conspiracy and conspiracy to commit wire fraud.  The Court ordered that Khurtsidze be resentenced because of the district court’s comments at sentencing regarding the above-guidelines sentence that was imposed and the deterrent effect it could have in sending a message to “Russian organized crime.”

While it expressed “confiden[ce] that the district court harbored no bias toward Khurtsidze based on his nationality or immigration status,” the Court noted the district court’s comments may have created an “improper appearance” that Khurtsidze’s national origin or immigration status were “driving the choice of sentence.”  At oral argument, defense counsel did point out that, for whatever reason, the sentence imposed here was “roughly double” the applicable Guidelines range.[1]  The Court also explained it did not need to consider whether to remand to a different judge for resentencing, as the initial sentencing judge was no longer on the bench.

The Court’s decision affirms the foundational principle that a defendant’s nationality or immigration status should have no effect at all at sentencing, while also serving as a valuable reminder that the Court will closely scrutinize the sentencing record and readily order resentencing if there is even an appearance that nationality or immigration status could have impacted a defendant’s sentence.  This has happened on a few prior occasions, and in those instances, the Court reversed and remanded to a different district judge.  See, e.g., United States v. Kaba, 480 F.3d 152, 155-56 (2d Cir. 2007) (“[I]t is entirely reasonable to assume that people from the Guinea community are going to say gee, do you hear what happened to [Kaba]? I don't want that to happen to me.”); United States v. Leung, 40 F.3d 577 (2d Cir. 1994) (“The purpose of my sentence here is to punish the defendant and to generally deter others, particularly others in the Asiatic community.”); United States v. Edwardo-Franco, 885 F.3d 1002, (2d Cir. 1989) (referring to Colombians as “people who don't have too much regard for Judges” and who “only killed 32 Chief Judges in that nation”).  Given that there are virtually unlimited possible considerations for sentencing afforded by Section 3553(a), it is to be hoped that judges do not look to this type of general deterrence in the future, even if well-intentioned.

By Jared Buszin and Harry Sandick