# United States v. Jon Tomasi, AKA John Tomasi, Jimmy Tomasi, AKA James Tomasi, and Frank Barrett, AKA Skip Barrett

> Court of Appeals for the Second Circuit · December 3, 2002 · 313 F.3d 653

URL: https://www.frixlaw.com/law-library/cases/9495611

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Jon TOMASI, AKA John Tomasi, Defendant-Appellant, Jimmy Tomasi, AKA James Tomasi, and Frank Barrett, AKA Skip Barrett, Defendants
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** December 3, 2002
- **Citations:** 313 F.3d 653; 2002 U.S. App. LEXIS 24495; 2002 WL 31696739
- **Precedential status:** Published
- **Opinion:** Concurrence by Sotomayor
- **Judges:** Leval, Sack, Sotomayor
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

SOTOMAYOR, Circuit Judge,
concurring in the judgment.
The majority takes it upon itself to resolve a question that it need not reach in order to dispose of the present case. Moreover, it does so even though this Court has previously held that we should not reach the merits of this very Sentencing Guidelines issue unless we first conclude that the defendant received a higher sentence than he would have received had the criminal history score been calculated correctly. The district court here clearly indicated that it would have sentenced the defendant to 41 months imprisonment with or without the addition of a criminal history point. Because I would abide by our decision in United States v. Rich, 900 F.2d 582 (2d Cir.1990), that the application of U.S.S.G. § 4A1.2(e)(1) to an indeterminate term of probation should not be decided unless it is necessary to do so, I would affirm the sentence imposed by the district court on the limited ground that the defendant suffered no prejudice from the alleged sentencing error.
In resolving the question of whether the district court properly calculated the de *661 fendant’s criminal history score under U.S.S.G. § 4A1.2(c)(l), the majority neglects to mention that the panel previously faced with this precise issue “deem[ed] it inadvisable to settle this Guidelines dispute” absent a showing of prejudice to the defendant, because it “would require us to interpret the Guidelines on a question the Sentencing Commission apparently has not yet considered.” Rich, 900 F.2d at 586 . Rather than addressing the application of § 4A1.2(e)(l) to the facts before it, the Rich court determined that the better course of action was to remand to the district court for clarification of whether the addition of the criminal history point had any effect on the sentence actually imposed. Rich is in accord with this Court’s general practice of refusing to resolve a Guidelines dispute if the same sentence would have been imposed under all potentially applicable Guidelines ranges. See United States v. Bermingham, 855 F.2d 925, 935-36 (2d Cir.1988) (remanding to the district court for a clarification of whether there was prejudice to the defendant rather than reach the merits of a Guidelines dispute).
Despite the fact that, as in Rich , Tomasi cannot show prejudice from the alleged sentencing error, the majority nonetheless reaches out to decide how an indefinite term of probation should be treated under § 4A1.2(c)(l) for purposes of determining a defendant’s criminal history score. In so doing, the majority abandons a well-established principle of sound, responsible jurisprudence — that courts have a duty to refrain from deciding issues whose resolution is not necessary to the disposition of a case. See Batson v. Kentucky, 476 U.S. 79 , 111 n. 5, 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) (Stevens, J., concurring) (“[T]he Court should only address issues necessary to the disposition of the case or petition.”); cf. Anderson v. United States, 417 U.S. 211, 218 , 94 S.Ct. 2253 , 41 L.Ed.2d 20 (1974) (directing that it is “inadvisable ... to reach out ... to pass on important questions of statutory construction when simpler, and more settled, grounds are available for deciding the case at hand”).
Indeed, while in Rich it was not clear on appeal whether the defendant had suffered prejudice, the record in the case before us conclusively shows that Tomasi’s sentence was not affected by the criminal history calculation. If the district court had not added a criminal history point, the defendant'would have been exposed to a Guidelines - range of 33-41 months; with the criminal history point, the district court calculated the applicable range as 41 to 51 months. The district - court specifically stated that if the defendant were subject to a 33-41 month sentence, “[t]he Court still would impose the [41 month] sentence because that’s the sentence that could give this defendant a reasonable chance of getting in the 500 hour program.” [A 319] We have urged district courts to provide just this type of detailed sentencing rationale so that we may avoid reaching tangled Guidelines issues in the interest of the “efficient functioning of the guideline system.” Bermingham, 855 F.2d at 935 .
Because the addition of the criminal history point had no effect on the sentence the defendant ultimately received, Rich dictates that we should “decline to render a potentially advisory opinion broadening or narrowing the scope of § 4A1.2(c)(1).” 900 F.2d at 586 ; cf. Ass’n of Mexican-American Educ ators v. California, 231 F.3d 572 , 590 (9th Cir.2000) (en banc) (“Because we have concluded that Title VII applies ..., we need not consider whether Title VI also applies.... Accordingly, we decline to issue an advisory opinion on the applicability of Title VI.”); Horne v. Coughlin, 178 F.3d 603, 606 (2d Cir.1999) (“The question arises whether limited, burdened judicial resources should properly be diverted from cases that require adjudication to difficult and time- *662 consuming advisory opinions on questions that will have no effect on who wins or loses the litigation.”). There is no basis for a departure from the principle of judicial restraint in the present case. Certainly the majority’s resolution of the § 4A1.2(c)(l) issue cannot be justified by the need to provide guidance to district courts, for such an exception would swallow the general rule. 1 While clarity in the law is always to be desired, judges should not indulge themselves by reaching out to decide issues not squarely before them in order to accomplish this result.
. Even if this were a reasonable grounds for departure from this rule, the majority's conclusion, supra note 4, that the fact that "Vermont district judges, along with prosecutors, defense lawyers, probation officers, and defendants, have a need to know how this ambiguous provision of the sentencing guidelines” affects sentencing provides "good reason for resolving, rather than avoiding, the question” finds no support in the record. The district court’s colloquy at sentencing evidences no need for guidance on this issue, and indeed, the government argues on appeal that "[f|or over a decade, federal judges in the District of Vermont interpreting this guideline have looked to the length of time actually served on probation under such indefinite probationary sentences to determine whether or not a given conviction should be counted in criminal history under the Guidelines.” Appellee Br. at 8-9.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495611. Public record. Not legal advice.