Petition for Writ of Certiorari — David Greenberg, Petitioner v. United States
Supreme Court briefAug 14, 2019
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No. 19In the
Supreme Court of the United States
DAVID GREENBERG,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Second Circuit
PETITION FOR A WRIT OF CERTIORARI
Clinton W. Calhoun III
Counsel of Record
Calhoun & Lawrence, LLP
81 Main Street, Suite 504
White Plains, New York 10601
(914) 946-5900
ccalhoun@calhounlawrence.com
Attorneys for Petitioner
290558
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
Did the Second Circuit err in affirming Petitioner
David Greenberg’s sentence without addressing (1) the
sentencing court’s failure to consider the proper weight to
be given Greenberg’s breach of his cooperation agreement
and the sentences of other defendants in order to locate its
sentence within the “boundaries of reasonableness” and
(2) the unwarranted disparity of Greenberg’s 180-month
sentence, a sentence more than double that imposed on
any other defendant, without adequate explanation and
without consideration of those other sentences?
ii
PARTIES TO THE PROCEEDING
The parties to the proceeding in the court whose
judgment is sought to be reviewed are Petitioner David
Greenberg and Respondent United States of America.
iii
STATEMENT OF RELATED CASES
United States v. David Greenberg, No. 13 Cr. 718
(KMK), United States District Court for the Southern
District of New York. Judgment entered May 24, 2018.
United States v. David Greenberg, No. 18-1768, United
States Court of Appeals for the Second Circuit. Judgment
entered May 16, 2019.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii
STATEMENT OF RELATED CASES . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii
PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1
STATUTORY PROVISION INVOLVED . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2
A. Preliminary Statement . . . . . . . . . . . . . . . . . . . . . 2
B. Greenberg’s Guilty Plea and Cooperation . . . . . . 3
C. The Hernandez Organization . . . . . . . . . . . . . . . . 5
D. Greenberg’s Sentencing . . . . . . . . . . . . . . . . . . . . 6
v
Table of Contents
Page
E. The Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
REASONS FOR GRANTING THE PETITION . . . . . 8
GREENBERG’S 15 -YEAR SENTENCE
WAS IMPOSED (A) WITHOUT REGARD
TO WHETHER THE PRIMARY FACTOR
DRIVING THE SENTENCE COULD BEAR
THE WEIGHT OF SUCH A SENTENCE
AND WHETHER IT WAS PROPORTIONATE
TO THE HERNANDEZ DEFENDANTS’
SENTENCES, AND THEREFORE WAS
SUBSTANTIVELY UNREASONABLE, AND
(B) AT A LEVEL THAT CONSTITUTED
UN WA RR A NTED DISPA RIT Y W ITH
THESE OTHER SENTENCES ,
CONTR A RY TO THE M A NDATE OF
18 U.S.C. § 3553(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Substantive Unreasonableness . . . . . . . . . . . . . . . 9
B. Unwarranted Disparity/Procedural Error . . . . 13
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
vi
TABLE OF APPENDICES
Page
APPENDIX A — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, DATED MAY 16, 2019 . . . . . 1a
APPENDIX B — EXCERPTS OF TRANSCRIPT
OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK, DATED MARCH 12, 2018 . . . . 10a
vii
TABLE OF CITED AUTHORITIES
Page
Cases
Gall v. United States,
552 U.S. 38 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Rita v. United States,
551 U.S. 338 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 14-15
United States v. Brooks,
889 F.3d 95 (2d Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Cavera,
550 F.3d 180 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 12
United States v. Jenkins,
854 F.3d 181 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 12
United States v. Pietkiewicz,
712 F.3d 1057 (7th Cir. 2013) . . . . . . . . . . . . . . . . . . . 15
United States v. Robles-Alvarez,
874 F.3d 46 (1st Cir. 2017) . . . . . . . . . . . . . . . . . . . 15, 16
United States v. Sawyer,
672 Fed. Appx. 63 (2d Cir. 2016) . . . . . . . . . . . . . . . . 12
United States v. Sierra-Villegas,
774 F.3d 1093 (6th Cir. 2014) . . . . . . . . . . . . . . . . . . . 13
viii
Cited Authorities
Page
United States v. Singh,
877 F.3d 107 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 12
United States v. Smith,
541 Fed. Appx. 306 (4th Cir. 2013) . . . . . . . . . . . . . . 15
United States v. Vinson,
852 F.3d 333 (4th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 12
United States v. Wallace,
597 F.3d 794 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 15
Statutes / Rules / Sentencing Guidelines
18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 16
18 U.S.C. § 3553(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . passim
18 U.S.C. § 3553(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18 U.S.C. § 3553(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12
18 U.S.C. § 3553(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
21 U.S.C. § 841(b)(1)(A) . . . . . . . . . . . . . . . . . . . . 2, 4, 6, 10
21 U.S.C. § 841(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ix
Cited Authorities
Page
U.S.S.G. 5C1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
U.S.S.G. 5K1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner David Greenberg petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Second Circuit affirming his
conviction and sentence.
OPINIONS BELOW
The summary order of the United States Court
of Appeals for the Second Circuit dated May 16, 2019,
affirming the district court’s judgment in this case, is
reported at ___ Fed. Appx. ____, 2019 WL 2147698 (2d
Cir. 2019). A copy of the order is included in the Appendix
submitted herewith. (A. 1a-9a).1
The District Court’s sentencing decision is unreported.
Relevant excerpts of it are included in the Appendix. (A.
10a-38a).
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Second
Circuit issued a summary order and entered a judgment
mandate affirming the judgment of the district court on
May 16, 2019, and June 6, 2019, respectively. The Supreme
Court has jurisdiction to review this case pursuant to 28
U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
This petition involves Section 3553(a)(6) of Title 18 of
the United States Code, which provides:
1. Citations to the Appendix and the page number submitted
herewith are denoted by “A.__.”
2
(a) Factors to be considered in imposing a sentence.The court shall impose a sentence sufficient,
but no grater than necessary, to comply with
the purposes set forth in paragraph (2) of
this subsection. The court, in determining
the particular sentence to be imposed, shall
consider...
(6) the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct; and
STATEMENT OF THE CASE
A. Preliminary Statement
David Greenberg, now 38 years old, was arrested on or
about June 17, 2013, in Newburgh, New York, and charged
in a complaint with participating in a narcotics conspiracy
involving cocaine under 21 U.S.C. § 891(b)(1)(B). He
decided at once to enter into a cooperation agreement
with the Government and thereafter rendered assistance
and provided intelligence and cooperation that was truly
extraordinary and led to the arrest and conviction of a
group of narco-traffickers with whom he was associated
(referred to herein as the “Hernandez Organization”).
As required by his cooperation agreement, Greenberg
pleaded guilty to participating in a narcotics conspiracy
pursuant to 21 U.S.C. § 841(b)(1)(A).
3
Greenberg also engaged in acts of misconduct that
breached the terms of his cooperation agreement, and,
when the misconduct was discovered, the Government
refused to provide a motion under 18 U.S.C. § 3553(e) and
U.S.S.G. 5K1.1. Greenberg thus received no benefit for
the substantial assistance he provided. To make matters
worse, the sentence imposed on him by the District Court,
15 years in prison, not only was harsh in and of itself but
was more than double the length of the longest sentence
received by any member of the Hernandez Organization,
even the most culpable. Greenberg contends that his
sentence was palpably unreasonable and out of proportion
to the Hernandez sentences, and deserves to be set aside.
B. Greenberg’s Guilty Plea and Cooperation
Immediately after his arrest, Greenberg began
to provide information and render assistance to the
Government. As a would-be cooperator, Greenberg was
required to disclose his past criminal misconduct. It did
not involve any form of violence but included trafficking in
various drugs such as cocaine, heroin, ecstasy, marijuana,
oxycodone and phencyclidine, beginning when he was
a teenager. (Greenberg was 32 years old when he was
arrested). Many if not most of the details of Greenberg’s
criminal history, particularly those not involving an
arrest, were not known to the Government before he
disclosed them. Greenberg’s history also included criminal
convictions in federal and state courts and for which
he received and served prison sentences. He also was
gravely wounded in a shooting during a drug transaction
in August, 2008. Greenberg recovered from his wounds
and resumed his illicit trafficking, which continued with
only short interruptions until his arrest in this case in
June, 2013.
4
As a cooperator, Greenberg was released on bail
and instructed to participate in a number of controlled
drug transactions between June and October, 2013. His
cooperation focused on the Hernandez Organization
led by an individual named Esmeraldo Hernandez and
ultimately led to the arrest and successful prosecution
of Hernandez and thirteen other traffickers in the
Hernandez Organization. 2
Greenberg’s work for the Government was dangerous
but highly effective. He was ultimately offered a plea and
cooperation agreement to which he pleaded guilty on
September 20, 2013. The guilty plea was to an Information
charging a controlled substances conspiracy under 21
U.S.C. § 841(b)(1)(A) and including the trafficking crimes
about which Greenberg informed the Government in
his proffer sessions leading up to his plea. The criminal
activity described in the Information to which he pleaded
guilty was far more extensive, and carried the potential
for a far more substantial punishment, than the criminal
activity described in the original complaint against him.
David Greenberg’s relationship with the Government
as a cooperator fell apart in October, 2013, shortly after
his guilty plea. He was taken into custody and accused by
the Government of multiple breaches of the cooperation
agreement, including the following: (1) tipping off a target
not to speak to him over a phone that was being monitored,
(2) supplying a cutting agent for heroin to the Hernandez
defendants, (3) failing to disclose a drug stash house at
2. The prosecution of the Hernandez defendants was
conducted before a different judge in the Southern District of
New York under docket number 13 Cr. 740 (VB).
5
which cocaine, an inoperable firearm and a rifle had been
stored, (4) engaging in unauthorized cocaine transactions
and collections, (5) unreported and unapproved contracts
with multiple targets, and (6) failure to make required
disclosures to the Government. Although Greenberg
ultimately “came clean” as to his misconduct, the
Government declined to move under 18 U.S.C. § 3553(e)
and U.S.S.G. 5K1.1 to afford Greenberg any sentencing
relief or benefit for the substantial assistance he had
rendered.
C. The Hernandez Organization
As noted above, Greenberg’s assistance to the
Government resulted in the takedown and conviction of the
drug traffickers known as the Hernandez Organization.
That organization dealt cocaine and heroin in Hudson
Valley cities such as Newburgh, Beacon and Middletown
and in New York City. Through intelligence and controlled
transactions, Greenberg was able to assist the Government
in building a case against the members of the Hernandez
Organization. His cooperation was of critical importance;
indeed, without him the case would not have been made.
At least ten members were convicted and sentenced to
prison terms, with the lengthiest term being 87 months
imposed on Esmeraldo Hernandez.
It is worth pausing to note that Esmeraldo’s sentence
is less than half of the 180-month sentence that Greenberg
received. It is clear that the Hernandez Organization
convictions were fully the result of Greenberg’s cooperation,
and equally clear that Greenberg got no benefit at all from
his cooperation or the results directly attributable to it.
Whether Greenberg’s sentence comports with traditional
6
notions of reasonableness or justice is addressed below. It
nevertheless has never been disputed that, as a result of
David Greenberg’s efforts, a dangerous drug organization
was dismantled and its members put in prison.
D. Greenberg’s Sentencing
Greenberg appeared before District Judge Kenneth
Karas for sentencing on March 12, 2018. 3 A Presentence
Report (“PSR”) was prepared by the Probation Department
and the parties submitted extensive letter briefs before
sentencing. The PSR recommended a sentence of 210
months, and the Government requested a sentence within
the Sentencing Guidelines range of 210-262, with a tenyear mandatory minimum prison term also applicable
under 21 U.S.C. § 841(b)(1)(A). Greenberg, relying on the
safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G.
5C1.2, his total reform and rehabilitation as a result of
a religious awakening, and the four and a half years he
had already spent in pre-sentence detention, argued for
a sentence of time-served.
The sentencing court faced two issues at Greenberg’s
sentencing: (1) the applicability of the safety valve to
Greenberg’s case, and (2) depending on the outcome of
the first issue, the appropriate sentence to impose on
Greenberg. After considering the parties’ arguments
and written submissions, the sentencing court rejected
3. The delay in sentencing, at defendant’s request, was mainly
to await the conclusion of the Hernandez case to see if any of those
defendants opted for trial, which might have afforded Greenberg
a renewed opportunity to cooperate by giving testimony at a
trial. All of those defendants, however, pleaded guilty and there
was no trial.
7
Greenberg’s request for safety valve relief. The Court
then imposed a sentence of 180 months imprisonment, a
term of supervised release of 5 years, and a $100 special
assessment. An Order of Forfeiture also was entered.
A timely notice of appeal was filed on Greenberg’s
behalf.
E. The Appeal
Greenberg appealed his sentence to the Second
Circuit, contending in the first instance that the District
Court erred in denying him relief under the safety valve
and further contending that the sentence imposed on him
was both procedurally and substantively unreasonable,
disproportionate, and “greater than necessary” to meet
the objectives of sentencing.
In its May 16, 2019, Summary Order, the Second
Circuit rejected Greenberg’s arguments. It affirmed
the District Court’s denial of safety valve relief. It also
concluded that Greenberg’s sentence was not procedurally
unreasonable since there was no miscalculation of
the Sentencing Guidelines. As to the substantive
unreasonableness of his sentence, Greenberg contended
that his breach of the cooperation agreement, although
serious, was not of sufficient gravity to sustain the 15-year
sentence imposed on him as a result and as to the length of
his sentence, he argued that it far exceeded the sentences
imposed in the case against the Hernandez defendants
that he had made for the Government. The Second Circuit
sidestepped Greenberg’s arguments and focused instead
on the District Court’s attention to other sentencing
factors such as the seriousness of the narcotics conspiracy
8
and Greenberg’s failure to comply with his cooperation
agreement; his prior criminal history and the non-violence
of his conduct; the substantial cooperation Greenberg
rendered and the letters attesting to his character and
rehabilitation, among other considerations. None of the
factors had been disputed. The Second Circuit stated it
would not substitute its judgment for the district court’s
on the issue of a sufficient sentence. It did not address
whether Greenberg’s cooperation agreement breach could
support the weight that was assigned to it by the District
Court or whether there was any significance in the length
of Greenberg’s term of imprisonment as compared to those
imposed on Hernandez Organization defendants.
REASONS FOR GRANTING THE PETITION:
GREENBERG’S 15-YEAR SENTENCE WAS
IMPOSED (A) WITHOUT REGARD TO
WHETHER THE PRIMARY FACTOR DRIVING
THE SENTENCE COULD BEAR THE WEIGHT
OF SUCH A SENTENCE AND WHETHER IT
WAS PROPORTIONATE TO THE HERNANDEZ
DEFENDANTS’ SENTENCES, AND THEREFORE
WAS SUBSTANTIVELY UNREASONABLE,
AND (B) AT A LEVEL THAT CONSTITUTED
UNWARRANTED DISPARITY WITH THESE
OTHER SENTENCES, CONTRARY TO THE
MANDATE OF 18 U.S.C. § 3553(a)(6).
Whenever a sentence seems excessive or out of
proportion with the offense or other relevant sentences,
there is a distinct possibility that something went wrong.
Such was the case with David Greenberg’s sentence, and
something did go wrong. At 180 months, it was excessive
9
and out of proportion because the District Court sentenced
Greenberg without any regard to the sentences that the
Hernandez Organization defendants received. The Court
imposed a sentence on Greenberg that was far greater
than necessary to achieve the goals of sentencing and
more than double the longest sentence that a Hernandez
case defendant received.
Greenberg’s sentence therefore suffers from (A)
substantive unreasonableness, and (B) unwarranted
disparity with the sentences of the other defendants.
These defects could easily have been avoided if the District
Court had heeded the relevant provisions of 18 U.S.C.
§ 3553(a) and the other sentences imposed in this case. It
did not, nor did it explain why it did not. Other Circuits
would have required it; but not the Second Circuit, which
affirmed the District Court’s judgment without regard to
these defects. (A. 1a-7a). Greenberg submits that a new
sentence and corrective instruction from the Supreme
Court are needed.
A. Substantive Unreasonableness
The District Court sentenced Greenberg to 180
months (15 years) in prison. Greenberg maintained in
his appeal to the Second Circuit that such a sentence was
substantively unreasonable, pointing out that it bore no
relation to the sentences imposed on the other similarly
situated defendants associated with Greenberg’s case,
and that the driving factor for his sentence, Greenberg’s
breach of his cooperation agreement, while serious, was
not of such gravity that it could bear the weight assigned
to it to support such a lengthy sentence. The District Court
did not address either of these arguments, and neither did
the Second Circuit.
10
The Second Circuit, in its Summary Order, pointed
out that the District Court had fully considered various
sentencing factors relevant to Greenberg: “the seriousness
of his conspiracy and his prior criminal history; his
nonviolent conduct; his extensive cooperation, as well as
the need to protect the integrity of the cooperation process;
and the letters attesting to Greenberg’s character.” (A.
8a-9a). None of these issues were disputed. These factors
plainly justified a variance from the Sentencing Guidelines
range, found by the District Court to be 210-262 months
(A. 31a), and a variance was granted by the District Court.
However, once the variance was deemed in order, the
District Court had no direction or guidance as to where
the actual sentence to be imposed should be located. A
mandatory minimum prison term of 10 years under 21
U.S.C. § 841(b)(1)(A) was applicable, but if a sentence below
210 months and a minimum at or above 120 months was
to be imposed, what should the sentence be? The District
Court settled on 180 months but without explanation of
how that term was selected, as opposed to some other
term, which imparted to that sentence an arbitrary
quality and a result out of proportion to the offense and
to the sentences received by any of the defendants in the
Hernandez case.
In connection w ith his sentencing, Greenberg
informed the District Court in written submissions and
at the sentencing of the case involving the Hernandez
Organization and the sentences that had been imposed
in that matter. (A.14a-15a, 19a), as did the Government
in its sentencing submission. The Court was thus aware
from both sources that the longest sentence given to any
defendant in that case was 87 months, and that others
11
received less. The Court also was directed by 18 U.S.C.
§ 3553(a)(6) to avoid unwarranted disparities, which
required it to consider the sentences that other defendants
received. However, all the District Court stated as to
the Hernandez defendants was that “those individuals
didn’t have to proffer the entirety of the sentence” [sic]
(A. 15a), which was utterly inadequate and was offered
without knowing. There was no stated basis for the Court’s
remark, and in fact the Government had informed the
Court in its written submission that one of the Hernandez
defendants had cooperated, which would have involved
the kind of proffer the Court said had not taken place, so
the Court’s remark likely was wrong in addition to being
insufficient and unexplained.
The Court then proceeded without boundaries within
the range it had for sentencing Greenberg, the bottom of
Guidelines range, 210 months, to the 120-month mandatory
minimum prison term. It settled on 180 months, but for
no stated reason. The sentence certainly bore no relation
to any other sentence any defendant in Hernandez
received. The District Court recognized in passing the
need to avoid unwarranted disparity (A. 36a-37a) but did
not relate it to the sentences in any way to the far lower
sentences imposed on the Hernandez defendants. There
also was no explanation as to how Greenberg’s breach of
his cooperation justified the sentence imposed.
The Second Circuit, like the District Court, avoided
any discussion as to how Greenberg’s sentence was or
should have been determined. Without explanation of
the sentence as to these issues, the Second Circuit was
in no position to evaluate the District Court’s sentencing
determination.
12
It is established in the Second Circuit that a sentence
that relies on a factor that cannot bear the weight of the
imposed sentence is not permitted and must be set aside.
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008);
United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017); see
also United States v. Sawyer, 672 Fed. App. 63, 65 (2d
Cir. 2016). Comparisons to similar cases are important,
United States v. Brooks, 889 F.3d 95 (2d Cir. 2018), and
assist in the determination of where the “boundaries of
reasonableness” lie in a particular case. United States v.
Singh, 877 F.3d 107, 115-116 (2d Cir. 2017).
Here, the record makes manifest that the factor
driving the District Court was Greenberg’s sentence
was his failure to abide by the terms of his cooperation
agreement, leading the Government to refuse to make a
motion on his behalf under 18 U.S.C. 3553(e) and U.S.S.G.
5K1.1. (A.33a-37a). Had there been no breach, Greenberg
would have received the benefit of such a motion, and his
sentence would have been far different from the one he
received. Thus, his sentence was driven by his cooperation
breach, but the increased sentence was far in excess of
what that factor could legitimately support. While the
matter of the breach was serious and deserved discussion,
as was the Hernandez case and the sentences of those
similarly situated defendants, none of them were factors
in the Second Circuit’s affirmance of the District Court’s
judgment.
Other Circuits have found it important to consider codefendant sentences in arriving at a reasonable sentence
for the defendant under consideration. See, e.g., United
States v. Vinson, 852 F.3d 333 (4th Cir. 2017) (approving
a variance for the defendant but a sentence still greater
13
than the co-defendants based on the defendant’s higher
level of culpability); United States v. Sierra-Villegas, 774
F.3d 1093 (6th Cir. 2014) (all co-defendants cooperated, so
despite variance, a higher sentence was warranted for the
defendant). In Greenberg’s case, his level of culpability
for the crime of conviction was not higher than his codefendants, at least some of them, so a sentence that was
double the highest sentence a co-defendant received was
not warranted, even if it involved a cooperation breach.
Neither did all of the co-defendants cooperate, although
the Government disclosed that at least one Hernandez
defendant did, but it clearly was not any defendant at the
high end of the sentencing spectrum. A careful review
of those other sentences should have placed Greenberg’s
conduct along that spectrum, although his sentence
still had a 120-month minimum, but not far beyond the
spectrum where Greenberg’s sentence ultimately was
located.
The failure of the District Court to undertake
any meaningful review of the Hernandez defendants’
sentences and of the Circuit Court even to mention the
issue contributed to a substantively unreasonable result
in Greenberg’s case. Other District Courts and Circuits
would not have done it this way, and the guidance of
Supreme Court is needed to mandate such a review in order
to prevent a sentence from going beyond the boundaries
of reasonableness and into a zone of excessiveness, which
Greenberg’s surely did.
B. Unwarranted Disparity/Procedural Error
The District Court was required to guard against
unwarranted disparities among defendants by the
14
provision of 18 U.S.C. § 3553(a)(6). That section states in
relevant part
(a) The court, in determining the particular
sentence to be imposed, shall consider ...
(6) the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.
Greenberg’s sentence was disparate from the sentences
received by the defendants in the Hernandez case. The
court made no effort to determine the similarity of
records or conduct, although similarities were apparent.
The District Court was advised of the other sentences by
Greenberg’s counsel and the Government, yet gave it only
the scantest, most cursory attention (A. 15a, 36a-37a). The
Second Circuit gave it none.
A court commits procedural error and abuses its
discretion by “failing to adequately explain the chosen
sentence.” Gall v. United States, 552 U.S. 38, 51 (2007); see
also 18 U.S.C. § 3553(c). In Greenberg’s case, the chosen
sentence was 180 months but was not adequately explained
and there was no effort to differentiate Greenberg from
the Hernandez defendants to justify the vastly more
punitive sentence given to Greenberg. The Hernandez
defendants, at least some of them, are home now (A. 19a);
Greenberg is still in prison. There is nothing in the record
to satisfy any appellate court that this disconnect has a
reasoned basis. See Rita v. United States, 551 U.S. 338,
15
356 (2007). The Second Circuit, in its summary order,
elided past these requirements.
This procedure predictably resulted in disparity that
is at once unjust and unjustifiable. The circumstances
are similar, although not identical, to those described
in United States v. Robles-Alvarez, 874 F.3d 46 (1st Cir,
2017). In that case, a drug trafficking case much like
Greenberg’s, the defendant requested a variance from the
Sentencing Guidelines, which called for a life sentence,
noting that his co-conspirators received sentences ranging
from 46 to 210 months. He was given a life sentence and,
worse, it was imposed by the sentencing court “without
so much as mentioning the disparity issue.” Id. at 52. The
First Circuit noted that procedural error may occur and
warrant remand when a sentencing judge fails to explain
its rejection of an argument for a variance, id at 52-53, and
cited case law other circuits (but not the Second Circuit)
consistent with that requirement including United States
v. Pietkiewicz, 712 F.3d 1057, 1062 (7th Cir. 2013); United
States v. Smith, 541 Fed. Appx. 306, 308 (4th Cir. 2013) and
United States v. Wallace, 597 F.3d 794, 804 (6th Cir. 2010).
In the Robles-Alvarez case, the leader of the conspiracy
who recruited Robles-Alvarez and who engaged in more
drug smuggling than he did, received a 46-month sentence.
Robles-Alvarez got life and “the sentencing judge did
not even provide a cursory explanation for its rejection
of his argument.” Id. at 53. The First Circuit vacated
Robles-Alvarez’s sentence and remanded the case for
resentencing.
Greenberg’s case recalls Robles-A lvarez, but,
unlike the First Circuit, the Second Circuit required no
explanation from the District Court as why a disparate
16
sentence was appropriate for Greenberg. The issue of
disparity was placed squarely before both the sentencing
court and appellate court, but was not adequately
addressed by the District Court and was not even
mentioned by the Second Circuit. Robles-Alvarez got a
life sentence; Greenberg came away with a 180-month
sentence, more than double the 87-month sentence
given to the leader of the drug trafficking organization
Esmeraldo Hernandez. The disparity of the 180-month
sentence was not explained and thus cannot be evaluated
on appeal. Much like Robles-Alvarez, the District Court
here committed procedural error. Vacatur and a remand
should have been the result of Greenberg’s appeal to the
Second Circuit as it was in Robles-Alvarez’s First Circuit
appeal.
However, that was not the result in Greenberg’s case.
The Second Circuit did not require any explanation of the
disparity with the sentences previously imposed. Even in
the Second Circuit’s laundry list of factors the sentencing
court did consider, avoidance of unwarranted disparity is
conspicuously absent. (A. 8a-9a). The Circuit Court was
not asked to “substitute [its] own judgment for the district
court’s,” as it suggested (A. 9a), only to make sure that the
§ 3553(a) considerations were addressed and adequately
explained. The unwarranted disparity described at
§ 3553(a)(6) was not.
The issue is an important one and has significance in
how fairness and rationality are achieved and perceived
in the exercise of sentencing. Where there are significant
disparities, where the leaders of drug-trafficking
organizers get significantly lower sentences than those
below them in culpability, and where the differences are
17
not sufficiently explained and not reviewed, sentences are
viewed skeptically and rightly so, and confidence in the
fairness and rational administration of justice cannot be
guaranteed. It is a procedural error to give short shrift to
such a visible issue, especially when it is placed squarely
before the court as it was in Greenberg’s case. The
Supreme Court’s guidance and supervisory power are in
critical need to address this requirement for the benefit of
all the Circuit Courts and to reinforce a procedure that is
meant to protect and insure confidence that sentences are
imposed in a way that bespeaks fairness and proportion,
not randomness.
CONCLUSION
For the foregoing reasons, the writ of certiorari should
be granted.
DATED:
White Plains, New York
August 14, 2019
Respectfully submitted,
Clinton W. Calhoun III
Counsel of Record
Calhoun & Lawrence, LLP
81 Main Street, Suite 504
White Plains, New York 10601
(914) 946-5900
ccalhoun@calhounlawrence.com
Attorneys for Petitioner
APPENDIX
1a
A the UNITED
Appendix A —Appendix
ORDER of
STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT, DATED MAY 16, 2019
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
18-1768
UNITED STATES OF AMERICA,
Appellee,
-v.DAVID GREENBERG,
Defendant-Appellant.
May 16, 2019, Decided
PRESENT: DENNIS JACOBS,
PIERRE N. LEVAL,
Circuit Judges,
JESSE M. FURMAN,*
District Judge.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Karas, J.).
* Judge Jesse M. Furman, of the United States District
Court for the Southern District of New York, sitting by designation.
2a
Appendix A
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED that the
judgment of the district court be AFFIRMED.
David Greenberg appeals from a judgment of the
United States District Court for the Southern District
of New York (Karas, J.) sentencing him principally to
180 months’ imprisonment after Greenberg pleaded
guilty to one count of conspiracy to distribute narcotics
in violation of 21 U.S.C. § 846. On appeal, Greenberg
argues that he was entitled to relief from the applicable
mandatory minimum sentence pursuant to the “safety
valve” provisions of 18 U.S.C. § 3553(f) and United States
Sentencing Guidelines § 5C1.2, and that his sentence was
procedurally and substantively unreasonable. We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.
In early 2013, Greenberg was surveilled by New York
state police during their investigation of drug trafficking
in the Bronx. Investigators saw Greenberg make about
twenty visits to a suspected “stash house” in Newburgh,
New York, emerging each time with at least one paper bag.
Greenberg was arrested in June 2013 after investigators
observed him handing a paper bag to an individual in
a car who was arrested shortly thereafter and found
to be in possession of more than 100 grams of cocaine.
After posting bail, Greenberg remained at liberty until
October 2013, during which time he cooperated with the
government by, inter alia, recording conversations and
3a
Appendix A
participating in controlled narcotics purchases at the
direction of the Federal Bureau of Investigation.
In September 2013, Greenberg pleaded guilty
(pursuant to a cooperation agreement) to conspiracy to
traffic more than five kilograms of cocaine, more than
one kilogram of heroin, and quantities of marijuana,
MDMA, oxycodone, and PCP between 1995 and 2013.
The cooperation agreement required that Greenberg
“truthfully and completely disclose all information with
respect to the activities of himself and others concerning
all matters about which [the government] inquire[d] of
him,” and “commit no further crimes whatsoever.”
In October 2013, in large part due to Greenberg’s
cooperation, the government unsealed an indictment
charging fourteen defendants, each of whom was
convicted. Shortly thereafter, the government learned
that Greenberg violated his cooperation agreement by,
inter alia, failing to disclose to law enforcement a stash
house where narcotics, firearms, and ammunition were
stored; and instructing another investigative target,
John Zgrodec, to dispose of Greenberg’s firearm after
his arrest. Greenberg confessed his misconduct and was
remanded to custody in October 2013. He subsequently
informed the government that Zgrodec kept a “duffel bag
with guns” at the stash house.
The offense of Greenberg’s conviction carries a tenyear mandatory minimum sentence. Prior to sentencing,
Greenberg’s counsel advised the government that he
considered Greenberg potentially eligible for relief from
4a
Appendix A
the mandatory minimum sentence pursuant to the “safety
valve” provisions of 18 U.S.C. § 3553(f) and United States
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)
§ 5C1.2. The government responded that Greenberg’s
possession of a firearm as part of the offense conduct
disqualified him from safety valve relief. Nevertheless,
Greenberg participated in a “safety valve proffer” during
which he informed the government that the duffel bag
at the stash house contained an assault rifle, and that
Greenberg also kept a handgun -- which he claims was
inoperable -- at the stash house.
At sentencing, the district court determined that
Greenberg was ineligible for safety valve relief because
he possessed a firearm in connection with the offense of
conviction. The court imposed a sentence principally of
180 months’ imprisonment.
On appeal, Greenberg argues that the district
court erred in denying safety valve relief, because:
(A) it incorrectly adopted a per se rule that constructive
possession of a firearm in a drug stash house qualifies as
possession “in connection with” a narcotics conspiracy; and
(B) there was no proof or finding that the firearm at issue
was possessed “in connection with” Greenberg’s offense of
conviction. He additionally argues that his sentence was
procedurally and substantively unreasonable.
We review the sentencing court’s factual findings for
clear error, but we review the court’s interpretation of the
safety valve provisions de novo. United States v. Ortiz,
136 F.3d 882, 883 (2d Cir. 1997). Review for procedural
5a
Appendix A
and substantive reasonableness is akin to a “deferential
abuse-of-discretion standard.” United States v. Cavera,
550 F.3d 180, 189 (2d Cir. 2008) (in banc) (quoting Gall
v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 169 L.
Ed. 2d 445 (2007)). However, “[a] sentencing court’s legal
application of the Guidelines is reviewed de novo.” United
States v. Desnoyers, 708 F.3d 378, 385 (2d Cir. 2013).
1. The safety valve provisions set forth in 18 U.S.C.
§ 3553(f) and U.S.S.G. § 5C1.2 instruct a district court
to sentence without regard to an applicable statutory
mandatory minimum if the defendant establishes that:
(i) the defendant has no more than one criminalhistory point; (ii) the defendant did not use
violence or credible threats of violence or
possess a firearm or other dangerous weapon
in connection with the offense; (iii) no one was
killed or seriously hurt as a result of the offense;
(iv) the defendant was not an organizer, leader,
manager, or supervisor in the offense and was
not engaged in a continuing criminal enterprise;
and (v) not later than the time of the sentencing
hearing, the defendant has truthfully provided
to the Government all information and evidence
the defendant has concerning the offense [or
offenses that were part of the same course of
conduct or of a common scheme or plan].
Ortiz, 136 F.3d at 883 (internal quotation marks and
alterations omitted); U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f).
The burden is on the defendant to prove entitlement to
6a
Appendix A
safety-valve relief by a preponderance of the evidence. See
United States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006).
For a firearm to be used “in connection with the
offense” under § 5C1.2, thereby precluding safety valve
relief, the firearm “at least must facilitate, or have the
potential of facilitating, the drug trafficking offense.”
United States v. DeJesus, 219 F.3d 117, 122 (2d Cir. 2000)
(quoting Smith v. United States, 508 U.S. 223, 238, 113 S.
Ct. 2050, 124 L. Ed. 2d 138 (1993)). For purposes of the
safety valve, possession includes “constructive possession,
at least where the defendant keeps the weapon under his
personal dominion and control.” United States v. Herrera,
446 F.3d 283, 287 (2d Cir. 2006).
The district court found Greenberg ineligible for
safety valve relief because he admittedly had constructive
possession of the rifle at the stash house, which (as the
court emphasized) was “ground zero of the drug operation”
and where Greenberg had access to the rifle. Greenberg
argues that the district court thus adopted a per se rule
that a firearm possessed at a stash house is possessed “in
connection with” a drug offense. Such a categorical rule
would be inconsistent with the principle that “the firearm
must have some purpose or effect with respect to the drug
trafficking crime; its presence or involvement cannot be
the result of accident or coincidence.” See DeJesus, 219
F.3d at 122 (quoting Smith, 508 U.S. at 238). We reject
the argument. The district court did not adopt such a
rule. To the contrary, the court indicated at sentencing
that the analysis might have been different if the rifle had
been stored in a less accessible place, such as the attic or
garage of the stash house.
7a
Appendix A
In any event, the court’s factual finding that
Greenberg’s account of the firearms was inconsistent and
lacked credibility was not clearly erroneous. Greenberg
argued that his possession of the rifle was unconnected
to the narcotics conspiracy because the rifle was merely
stored in the stash house by Zgrodec and was not there
for the purpose of furthering the drug business. However,
the district court expressly declined to credit Greenberg’s
factual claims, finding that they were undermined by his
inconsistent representations regarding the firearms in the
stash house. As the district court observed, Greenberg
gave “a number of different versions about how many
guns were in the bag,” “whether [a] handgun was at the
stash house . . . or just the rifle,” and “when he disposed
of the handgun.” Accordingly, we see no clear error in the
district court’s finding that Greenberg’s factual claims
were insufficient to show entitlement to safety valve relief.
2. “A district court commits procedural error where it
fails to calculate (or improperly calculates) the Sentencing
Guidelines range, treats the Sentencing Guidelines as
mandatory, fails to consider the [18 U.S.C.] § 3553(a)
factors, selects a sentence based on clearly erroneous
facts, or fails adequately to explain the chosen sentence.”
United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012)
(citing Gall, 552 U.S. at 51).
Greenberg argues that his sentence was procedurally
unreasonable because the district court erroneously
denied him safety valve relief, and accordingly denied
him a two-level offense level reduction under U.S.S.G.
§ 2D1.1(b)(18). Because the district court did not err in
finding that Greenberg failed to establish his entitlement
8a
Appendix A
to safety valve relief, the district court did not commit
procedural error by declining to grant a two-level
reduction pursuant to § 2D1.1(b)(18).
3. “In examining the substantive reasonableness of a
sentence, we review the length of the sentence imposed
to determine whether it cannot be located within the
range of permissible decisions.” United States v. Matta,
777 F.3d 116, 124 (2d Cir. 2015) (internal quotation marks
omitted). We will “set aside a district court’s substantive
determination only in exceptional cases.” Cavera, 550 F.3d
at 190 (emphasis omitted).
Greenberg argues that the principal motivating
factor for his 180-month sentence was his breach of
the cooperation agreement, and that this factor was
insufficient to justify his sentence, which was far higher
than it would have been had he complied with the
cooperation agreement. To support the notion that his
sentence was greater than necessary, Greenberg cites
his substantial assistance to the government, the fact that
his crimes did not involve violence, and his rehabilitation
while incarcerated.
The transcript of Greenberg’s sentencing hearing
demonstrates that the district court fully considered
the relevant sentencing factors in imposing Greenberg’s
sentence. The court discussed, inter alia: the seriousness
of Greenberg’s narcotics conspiracy and his prior
criminal history; the nonviolent nature of his conduct;
the substantial cooperation he provided the government;
the failure to comply with his cooperation agreement
9a
Appendix A
and the importance of protecting the integrity of the
cooperation process; and letters submitted to the court
attesting to his character. The district court clearly gave
thoughtful consideration to the relevant sentencing factors
when concluding that a below-Guidelines sentence of 180
months was appropriate, and we will not “substitute our
own judgment for the district court’s on the question of
what is sufficient to meet the § 3553(a) considerations.”
Cavera, 550 F.3d at 189.
We have considered Greenberg’s remaining arguments
and conclude they are without merit. Accordingly, the
judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
/s/
10a
Appendix B
Appendix B — EXCERPTS
OF TRANSCRIPT of
the UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK,
DATED MARCH 12, 2018
[1]UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES of AMERICA,
– against –
DAVID GREENBERG,
Defendant.
13 CR 718
Sentence
(SEALED)
United States Courthouse
White Plains, New York
March 12, 2018
Before:
HONORABLE KENNETH M. KARAS
District Court Judge
***
[33]THE COURT: Yeah. I thought that was just a
mistake.
11a
Appendix B
MR. CALHOUN: I don’t think it makes a difference,
but I’m-- we’re kind of on the knife’s edge. I don’t want to
give away any points either so ...
THE COURT: Yeah.
MR. CALHOUN: I would just ask that that be-MR. GERBER: Your Honor, the government has no
objection to that.
THE COURT: All right. So paragraph 36 and 37
should say criminal history score of zero. And then, of
course, Criminal History Category remains one, but
comfortably so.
Any other issues?
MR. CALHOUN: No, your Honor mentioned the
safety valve.
THE COURT: Right. That’s preserved for sure, of
course. All right. The government reviewed the report.
And any objections?
MR. GERBER: We’ve reviewed and no objections.
THE COURT: Do you agree with that, Mr. Graff?
ATTORNEY3 [sic]: Yes, your Honor.
THE COURT: All right. Just making sure.
12a
Appendix B
All right. Go ahead, Mr. Calhoun.
MR. CALHOUN: Thank you, Judge. Judge, we’ve
been a long time coming to this day. Mr. Greenberg is
now 37 years old. He’s a married man, gets to [34]see his
wife periodically at the facility where he’s been detained
but certainly has maintained family support. They’re in
court with him today. And a number of family members
and friends submitted letters to the Court that quite
movingly spoke of David’s devotion to his family and sort
of the remaking of himself that David has done. And I’ll
mention that in a few minutes.
But I think it’s fair to say and I think all of the
certificates and diplomas that have been submitted to the
Court in connection with the sentencing today shows the
effort that David has put into trying to become worthy
of the support that his family has given him and really to
be worthy of himself to -- and to become a better man. I
think he has -- I think he has remade himself and I think
he has become a better man. There’s a lot there and a lot
of substance that is, to my mind, of what I’ve seen very
impressive in terms of how long the effort has persisted
and the depth of that effort.
He essentially runs a ministry now at GO and helps
other inmates, in addition to himself, with their struggles
and with their problems and attempts to inject faith and
devotion into their lives and maintain it in his own life.
He had a very rough childhood and adolescence. It’s
summarized in the presentence report, but there was little
13a
Appendix B
or no guidance or parental direction for him. It just wasn’t
part of his life. And the unfortunate turn that he made
as a result [35]of that was to the streets and he became
immersed in the drug culture.
He went there not just for the finances, but for
acceptance, as well. I think as human beings, it’s something
that we all need and we seek out the places where you find
it and this is where he turned. And it was it was a bad turn
and it’s led to untold legal problems.
He was nearly killed in 2008, shot and had to have
multiple surgeries. And by luck and grace he survived
and is a healthy man. But he has not just turned in that
direction for money and support, but that’s where he
got his values, too. And it’s not a culture that embraces
honesty or forthrightness. And those values that are sort
of inculcated into a person, I just don’t think you shake
off overnight.
And his -- I think the end result was the failure of his
cooperation agreement by not being forthright with the
government and not doing the things correctly that he was
told to do, and doing things that he was told not to do and
then not answering honestly when Mr. Gerber and Mr.
Graff asked him questions. It took a number of sessions.
This is in October of 2013 when he was brought in.
He essentially poisoned the relationship. It was on
track, it was -- by the time he was brought in in October,
he had pleaded guilty before your Honor just some weeks
prior, but he had been out and working with the agents
14a
Appendix B
for I guess about [36]three months or thereabouts. He
had -- he was released on bail on June 20, I believe, give
or take a day. And in the short amount of time that he
had between June 20 and the October date when he was
brought in, he did a lot of good in terms of coop -- he did
some things that the government, I think, correctly and
I certainly would characterize a substantial assistance;
namely bringing in the case that for shorthand purposes
I’ll call it the Hernandez case, but it involved about a
dozen defendants, all drug traffickers. Every single one
of them was ultimately convicted before Judge Briccetti.
They all pleaded guilty, which I think speaks well of the
case the government put together. But a central part of
that was the information and assistance that came from
Mr. Greenberg.
So there was a real contribution, I would say, to
societal good that came out of the cooperation and then
something that benefited the government and indeed
benefited all of us.
And the sentences that were imposed in that case,
there was a high sentence of 87 months, but there were a
number of sentences in the 60- month, 66-month range.
It looks to be about six or seven of the defendants got
prison terms in that range. So he did render substantial
assistance.
He also engaged in misconduct in that basically he
acted outside the bounds of his agreement. He didn’t
tell the government what he was doing when he should.
And in the end, [37]despite a lot of meetings and a lot of
15a
Appendix B
arguments and cajoling and other efforts of advocacy,
I’ll put it that way, the government ultimately declined
to write a 5K letter in Mr. Greenberg’s favor. And we’re
not taking issue with that. It’s unfortunate, but that’s
their decision and they’ve been quite firm about that
throughout. So that really is not a surprise.
What is a surprise and a disappointment is the
sentence that is being recommended. It’s the same
sentence that was recommended in the presentence
report, but the probation officer didn’t -- I don’t think she
had access to the information about the cooperation and
the substantial assistance.
But I can’t help but feel that a sentence of that
magnitude which starts at 210 months, which is something
over 16 years and then travels northward up to the 21-year
range, is just far more than what is necessary in this case.
It’s more than anybody -- it’s further, by far, than what
anybody in the Hernandez case got by some multiple. And
there you had, like I said, a dozen defendants who were
basically engaged in the same kind of conduct as Mr. -THE COURT: Look, here’s the difference. Those
individuals didn’t have to proffer the entirety of their
sentence. So that’s the double edged sword of anybody
who either does safety valve or otherwise cooperation
proffering is [38]that the government makes you come
clean. And so the quantities go up and that’s what’s driving
this.
MR. CALHOUN: That’s correct. An awful lot of the
criminal misconduct came from Mr. Greenberg.
16a
Appendix B
THE COURT: Right.
MR. CALHOUN: And I think the government
indicated in a letter, and I know I did in mine, that a lot of
it was misconduct and crimes that they didn’t even know
about until Mr. Greenberg told them.
I understand how it affects the guidelines and it drives
them up, but I’m not -- it seems like punishing a defendant
for crimes that he disclosed -THE COURT: Right.
MR. CALHOUN: --without the government’s prior
knowledge is -- it’s a little tough to take. I’m not saying
that the guideline calculation is wrong and I’m not saying
they’re not entitled to make the recommendations that
they certainly are. But I think it is important for the Court
to consider where that information came from and how
they got ahold of it.
THE COURT: But the incentive system is that if
someone is going to admit to the scope of conduct on
that level, then it gives them all the more reason to make
sure that they comply with their obligations under the
agreement because otherwise the consequences are so
severe.
[39]MR. CALHOUN: You would hope.
THE COURT: Right. That’s the idea, right.
17a
Appendix B
MR. CALHOUN: That certainly is and I think it was
the hope of everybody that this was going to be successful.
And as I indicated at the outset, it looked to be -THE COURT: Yeah.
MR. CALHOUN: -- successful. It just didn’t stay that
way.
But I submit that if you take a step back and look at
the offenses that Mr. Greenberg admitted to and pleaded
guilty to, it’s -- the sentence that is being recommended, I
submit, is higher than it needs to be. There’s -- of course
there’s the parcimony clause in 3553(a) that’s sort of the
guiding principal. But I don’t see any indication at all in
the government’s extensive letter that any consideration
was given to something less than that. I think something
less than that would be more than ample.
I’ve submitted that because Mr. Greenberg has
already been incarcerated four and a half years, that the
Court could consider time served, of course. With your
Honor’s ruling on the safety valve, that doesn’t remain a
viable option, but certainly at the mandatory minimum
level, I submit it’s more than enough to punish him for
what he did, which was drug trafficking.
Again, and I said this in the safety valve context, [40]
but there was no violence, no physical injury. There was
certainly misconduct and I understand the government’s
need to show that they mean business when they enter into
these plea and cooperation agreements. But I submitted
18a
Appendix B
in my March 2nd letter that I also think it’s important
to show that they can deal fairly and not harshly and not
excessively when they come across somebody who has
breached the agreement and that was not going to get a
5K letter. I think that is an important consideration, too,
in terms of maintaining the integrity of the process that
they, rightly so, are concerned with.
Just -- just historically, Judge, Mr. Greenberg came
into the system in this case in June of 2013. It was a (b)(1)
(B) case, not the greatest but not the worst. But he made
an immediate decision to help the government. I mean,
that was done very quickly and he was assisted and made
bail and got right to work. And, again, in very short order
had made a significant case for the government. It ended
up taking a number of drug traffickers and a significant
quantity of drugs off the streets.
And, again, he did undermine his cooperation
agreement and that’s the reason that he -- I’m not
standing here asking for the full benefit of a 5K letter. Mr.
Greenberg is really in a bad position today with respect
to the guidelines.
I also think that because the guidelines [41]calculation
-- this gets a little hazy, but the guidelines are so bound up
with the anticipated cooperation. I mean, that’s the only
reason that he pleaded guilty to all of the crimes that he
did, that it with the idea that the 5K letter would ultimately
help in terms of sentencing to bring the ultimate sentence
back down to earth.
19a
Appendix B
But I think without the 5K and without the return to
earth, the guidelines really don’t, in the end, serve a very
useful function as a sentencing tool.
I do think that Mr. Greenberg likely would be home
by now if he had maintained his cooperation agreement.
Again, he’s been incarcerated for four and a half years.
I think it’s noteworthy that a number of the Hernandez
defendants are coming home now and at least one of
them has resumed contacting Mr. Greenberg’s family
and bothering them because the word really got out at
some point that, at least among some of the Hernandez
defendants, that David Greenberg was a cooperator. And,
obviously, it doesn’t set well with a certain population and
with this one individual in particular.
As I mentioned, David has worked hard. I think the
Court can see -- see that effort that David has made to
remake himself. I guess if there’s any silver lining, I think
the four and a half years that he’s done to date really gave
him an opportunity to examine his life and where he was
heading and guided him to taking a different rout. And
I think that’s [42]exactly what he has done. I believe, I
really do, that he’s become a new man and I think he’s
left his old ways behind. He’ll get a chance some day to
prove that to everyone. It’s hard now to cite any particular
proof, except the effort that he has made and all of the
achievements that he has gathered and the activities that
he’s engaged in including a letter from the warden, which
I don’t see too terribly often. But I would ask the Court
simply to take all of this into consideration.
20a
Appendix B
I know there’s a mandatory minimum that is
applicable, but I do think that the full extent, the good
and the bad, should be taken into consideration. And
I certainly, under the Court’s ruling today, feel that a
sentence not in excess of the mandatory minimum would
be more than enough in this case to achieve the goals and
the purposes of sentencing. Thank you.
THE COURT: Thank you, Mr. Calhoun.
Mr. Gerber?
MR. GERBER: I want to -- first, I want to both
summarize our position and also respond to certain
arguments from defense counsel in his submission today.
To be clear at the outset, the defendant rendered
substantial assistance many times over. But for the
defendant’s cooperation, the Hernandez case, which was
a significant 14-defendant prosecution, it almost certainly
would never have happened but for his cooperation.
[43]He also engaged in extraordinary misconduct
while working with law enforcement. And what’s very
important here is that this was not a one-time mistake, it
was not a discrete lie. This was a month-long systematic
effort to engage in criminal activity while acting as a
cooperator, never to deceive the government and to some
extent obstruct the investigation. He shielded a target. He
supplied a cutting agent for drugs. He failed to disclose
cocaine, firearms. He was complicit in the distribution of
those drugs and those drugs have never been recovered.
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He provided cocaine to an associate to sell on consignment.
He gave a drug dealer a cocaine press. He collected
thousands of dollars in drug debts.
None of this was known to law enforcement before the
defendant pleaded guilty. To the extent defense counsel
suggests in his submission that the government knew
about this before the defendant signed his cooperation
agreement and pled guilty, counsel is mistaken.
Now there was other lesser misconduct predating the
cooperation that was disclosed during the proffer sessions
leading up to the cooperation agreement. And there was
an initial failure to disclose drugs stored in a trap in a
car. And that was disclosed in some later proffer session,
again, before the cooperation agreement.
There’s a sentence or two in the defense submission
[44]suggesting that the defendant had revealed the stash
house to the government before he pled guilty just to
be clear about what happened. There are multiple stash
houses here. There was a stash house on South Street.
We knew about that before the defendant was arrested.
He talked about that. He also talked about a stash house
on West Stone Street.
But what the defendant knew and didn’t tell us is that
after his arrest the stash house on West Stone Street was
cleared out and its contents were shifted, were moved to
West Street. That’s where the new stash house was while
he was cooperating with the government. We only learned
of that location after we confronted the defendant about
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his lies. And just to be clear, even when the defendant
talked about the West Stone Street stash house there was
no mention of the guns that were there.
So there were certain disclosures during the proffer
process. And certainly, I mean, voluminous disclosures
regarding his prior drug activity going back many years,
but nothing follows from this.
The defendant was required to make those disclosures.
That’s what he was supposed to do. He doesn’t get points
for that. When confronted regarding his lies, so post
cooperation agreement, post plea, when he was finally
confronted by the government, when we, through various
means, began to discover what he had been doing, when
he was confronted, he lied about [45]it more. And it was
only after meeting with us over an extended period of
time after multiple meetings, that he finally came clean.
Basically, when confronted with the fact that we knew.
Now, defense counsel’s core argument as we understand
it is that the defendant’s substantial assistance, which is
very significant, ideally it should be weighed against his
misconduct and that his assistance to law enforcement
outweighs his wrongdoing.
Now, it’s very hard to know how to weigh those things.
But the real point is -- here is we reject the premise. The
message to defendants, to defense counsel, to judges, to
juries, what AUSAs have said in this courtroom many
many times is that cooperation is all or nothing. If you lie,
if you commit crimes, certainly if you engage in sorts of
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serial lies, serial criminal conduct at issue here, you will
bear the full weight of your crimes that you have pleaded
guilty to and all of your relevant conduct no matter how
much assistance you gave to the government.
And we would be taking this position irrespective
of the assistance he gave to the government. That’s the
whole point. It’s not a balancing. So if he had fled to be
there for 100 targets, the seizure of hundreds of kilograms
of heroin, we would not be up here conceding sort of the
defendant’s argument that, well, it’s in the wash, the good
[46]outweighs the bad. That’s actually a very dangerous
idea. It’s an incredibly dangerous idea.
What it leads to ex-ante, ex-ante is the idea that for
a potential cooperator to think well, you know, the more
I give the government the more latitude I have in terms
of the misconduct in terms of the lies. And here, if I give
them a lot, well, hopefully I won’t be caught. But if I’m
caught, you know, I did all of this good stuff. It will all
come out in the wash. That’s an incredibly dangerous idea.
Now do we always hold cooperators to this no matter
how limited the lie, the criminal conduct? No, we don’t.
That’s the truth of it. But the defendant’s conduct here in
its gravity, in its duration, in its deliberateness, is really
towards one end of the spectrum and is far, far, far over
the line.
The defense says in their sort of a reply letter that
the government’s position is not likely to encourage future
defendants to want to cooperate. That’s okay. The message
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this sends is precisely that you should either tell the truth
or don’t cooperate. And this is, in part, an issue of general
deterrence. When we say that cooperation is all or nothing,
we mean it and it’s not just words.
And defense counsel, also in his reply letter – and this
was echoed today -- this idea that the defendant would
never have pled to all these offenses unless he could rely
on [47]the 5K letter. There was sort of oh, this whole –
everything he pled to was bound up with cooperation,
bound up with the expectation of the 5K letter. And we
just -- we fundamentally reject this way of thinking which
is at odds with the defendant’s cooperation agreement,
his Plea Allocution. Every conversation he had with the
government throughout this entire process, the defendant
knew, as every cooperator in this district knows, that the
5K letter comes if he tells the truth, if he doesn’t commit
crimes. If a cooperator does what the defendant here did
here, there is no 5K letter, he has to bear the full weight
of his criminal conduct. The defendant knew that. He just
didn’t think he was going to be caught.
Now, the defense also argues that a guideline sentence
is too high, it’s unduly harsh. It is characterized, our
position, as breathtaking in its excessiveness. That’s from
the sentencing submission.
The bottom of the guidelines is 210 months, and that is
a tremendous amount of time to say the least. I would note,
just as an aside, probation has the same recommendation,
and probation was aware-- is aware of the cooperation.
I’ll state for the record that’s on page 18 of the PSR,
justification second -- the second paragraph.
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Also, defense counsel does not address some very
important facts about the guidelines range and how we got
here. There was a PFI in this case. We Nolle’d it. There is
an [48]uncharged 924c here. Had the defendant told the
truth when he proffered back in the day, pre-cooperation
agreement, he would have to plead to a 924c. Defense
counsel concedes as much when they admit that there’s a
two-level bump in the guidelines range. So if we had kept
the PFI, if the defendant had pleaded guilty to the 924c,
his mandatory minimum would be 25 years.
Now it is in that context that the government is asking
for a guideline sentence where the guidelines mandatory
minimum are much lower, much lower than they otherwise
would be, in part, because of the defendant’s lies. In part
because we thought Nolle-ing the PFI was the right thing
to do.
A few miscellaneous points I just want to address,
again, just responding to a few points on the defense letter.
First, this issue, just so the record is clear, referring to
the gun as an assault rifle. Just so we’re clear, that comes
from the language that the defendant used at the safety
valve proffer. That’s in the contemporaneous notes. Maybe
that’s wrong. Maybe that’s not an assault rifle. That’s
where we got that from. Nothing turns on that. But that’s
where that language came from.
The defense says in their submission there’s no
evidence the defendant personally enriched himself. That’s
not true. At the very least, he collected thousands in
dollars excuse me thousands of dollars in drug debt, drug
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debt from Zgrodec. He also was paid for cocaine that was
sold by an [49]associate on consignment. At page five of
the defense submission, the defense points out that in one
place we clipped a sentence from the defense submission
in a way that changes the meaning. That is a fair criticism.
When we were editing our submission, we made a mistake
with the quote. We apologize for that.
Finally, we also found an additional error in our
submission which we want to correct. On page three,
footnote four, describing the drugs that were at the stash
location.
So the way it’s written, it says that the stash location
-- that we didn’t -- well, so page three, footnote four, we
described the drugs maintained at the stash location that
we knew about from the investigation of the defendant.
That’s not correct.
The drugs ln that footnote are the drugs that we
obtained at the other stash location, the one that the
defendant lied about. This doesn’t really matter. There
were drugs at both stash houses. It’s not in dispute. We
just wanted to correct the error for the record.
Let me just end with the following. We get no pleasure
in this. This is a sad day and we are very sensitive to what
the defendant did for the government. But at bottom,
this is about the integrity of the cooperation process
for this defendant and for every defendant. And for that
reason and for all the reasons discussed, we believe that
a guideline sentence [50]is appropriate. Thank you.
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THE COURT: Thank you, Mr. Gerber.
Anything else, Mr. Calhoun, before we give your client
the last word?
MR. CALHOUN: Just a few brief comments. It hasn’t
been our position, ever expressed in writing or orally, that
we’ve taken the position that it’s okay to hold back on your
cooperation if you’re also doing good things. That’s just
not an argument that even occurred to me to make, much
less, you know, would say out loud. It’s just not correct and
certainly if I -- in the future, I will have the case of David
Greenberg not -- I’m not going to, obviously, mention his
name, but I’m going to tell clients that based on personal
experience, I have seen what can happen if the cooperation
is anything less than everything it should be.
But I certainly don’t think anybody at this table
would even contemplate arguing that it’s okay to hold
back as long as you’re doing good things, you can take
your chances with the cooperation agreement. That’s just
not so.
The argument really was intended to place before the
Court for consideration the substantial assistance that is
a fact in this case. And that’s really the beginning and the
end of it. It wasn’t intended to justify or to make any kind
of end-run around the cooperation agreement obligations
that exist.
[51]I should also say it’s -- I understand Mr. Gerber’s
point about the withdrawal of the prior felony statement
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and the fact that Mr. Greenberg was not charged with a
924c offense. It’s hard to feel -- I’m certainly glad those
things occurred the way they did. I don’t think anybody
was charged with a 924c for the -- with a weapon, the rifle
or the handguns. So Mr. Greenberg is paying a price for
it today in terms of the guideline enhancement and an
adverse decision on his safety valve eligibility.
But to my knowledge, he’s the only one who has
suffered any kind of penalty even though other people had
access to the stash house and I suppose could have been
charged but nobody, to my knowledge, was.
It remains our position that the guidelines really are
elevated by Mr. Greenberg’s extensive drug dealing. But
a lot of the drug dealing that goes into the guidelines
calculation came from him and the government didn’t
know about. And I suppose if he had done more, he would
have told more and the guidelines would be even higher.
And there just comes a point, I submit, where it’s out of
proportion to the offense itself that is before the Court
for sentencing. And I submit that, again, based on your
Honor’s earlier ruling today, that the mandatory minimum
it’s still -- it’s a very lengthy extensive sentence. And I
submit it’s just enough for what he has done and what
he’s admitted to. It’s a ten-year sentence. [52]He’s still got
years --years to go before --before he would be eligible
for release.
And if he doesn’t get the message that he violated the
agreement and didn’t do the things that he was supposed
to do with the sentence that I’m proposing to your Honor,
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I don’t think he’s going to get it by the sentence they’re
proposing either. It’s just -- again, it’s -- I can’t say it any
better than a statute. It’s sufficient. It’s sufficient.
I have my own opinion about whether it’s more than
necessary, but there’s a mandatory minimum. Congress
has spoken and I can’t contradict them, of course, but that
really is my response to Mr. Gerber.
THE COURT: Okay. Thank you very much, Mr.
Calhoun.
Mr. Greenberg, is there anything you’d like to say
before the Court imposes sentence?
THE DEFENDANT: Yes, your Honor. Your Honor, is
there any way I could speak to my family before I speak?
THE COURT: That’s up to the marshals.
THE DEFENDANT: I love you.
Your Honor, this is a hard day today, your Honor. As
the government said -- first and foremost, I just want to
apologize to the Court, I want to apologize to Michael
Gerber, Ilan Graff and Andrei, and I want to apologize
to my family. I can’t go back in time and take away the
things I did. All I can do is work on myself.
***
[56]the heart. You could read through people. I know
you could read, I know you could see the sincerity in my
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words. I stand before a changed man and I ask for grace.
Because whatever you give me, I don’t deserve. I just
plead for grace, plead for grace. Thank you, your Honor.
THE COURT: Okay. Thank you, Mr. Greenberg.
The Court’s task is to determine what sentence is
sufficient but no more than necessary to achieve the goals
of the sentencing laws as they apply to Mr. Greenberg
and to his case.
To do that, I have considered, as required, all the
factors set forth in 18 U.S.C. Section 3553(a). In doing
that, I have carefully considered the presentence report
as well as the substantial written submissions that have
been filed in this case. And of course I’ve considered what
everyone has had to say here today.
Now in terms of the 3553(a) factors, we’re told by the
higher courts that the starting point is what the guideline
calculation yields. That calculation is set forth as modified,
but without objection, except for the safety valve issue at
paragraphs 16 through 37 of the presentence report.
The base offense level is 36. And we get to that by
doing a marijuana equivalency calculus of all of the
narcotics that Mr. Greenberg is responsible for selling.
That’s discussed at paragraph 17 of the presentence report
and I adopt [57]it.
The bottom line is the marijuana equivalent of
the weight involved here is 35,371-kilograms. And so
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consulting the drug quantity table at Section 2D.1(c)2,
that’s how we get to 36. Because Mr. Greenberg was
in possession of a firearm, the two-level enhancement
pursuant to Section 2D1.1(b)(1) applies. And also because
Mr. Greenberg maintained premises for the purpose
of distributing a controlled substance, a two-level
enhancement is warranted pursuant to 2D1.1(b)12.
This adjusts the offense level to 40, but three levels
come off because of Mr. Greenberg’s acceptance of
responsibility as reflected in his timely guilty plea. That’s
pursuant to Sections 3E1.1(a) and (b).
Notwithstanding several prior convictions, Mr.
Greenberg’s criminal history score is zero and his
Criminal History Category is I, that’s because his prior
convictions have been deemed to be relevant conduct.
So a total offense level of 37 and a Criminal History
Category of I, the guideline range we talked about is
appropriately calculated at 210 to 262 months, again, with
the asterisk being the objection related to safety valve.
So that’s the math.
In terms of the other 3553(a) factors, starting with Mr.
Greenberg’s personal history and characteristics and as is
often the case it’s complicated here. Mr. Greenberg rightly
[58]focuses on and Mr. Calhoun, of course, amplifies this
point on what it is Mr. Greenberg has done since he was
remanded in this case.
The history before then, going back to Mr. Greenberg’s
childhood and up through his long run of narcotics dealing,
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is obviously very troubling. But it’s better, I think, to focus
on what Mr. Greenberg has done since then. There’s no
doubt, Mr. Greenberg, in my mind that when you were
remanded after the relationship with the government
collapsed, that that was a profound wake-up call for
you. You were looking at a substantial amount of time,
mandatory minimum. The PFI was Nolle’d when?
MR. GERBER: At some point in the past year, your
Honor.
THE COURT: So at the time, you were looking at
mandatory 20. And there are some people who can wilt,
understandably, when faced with that belief future and
there are some who can try to seize the moment. And I
think you’ve -- the record is pretty clear you have done
the latter.
Now this is not completely out of character. The letters
that are submitted on your behalf speak volumes about
your many fine qualities. And I don’t disagree with you
that if you had made different choices earlier in life you
could be standing where Mr. Calhoun is standing, you
could be the lawyer, you could be the doctor, you could be
a business person [59]or an architect or whatever. There’s
no doubt in my mind in terms of your intelligence and your
personal charisma that the path could have been very
different. And you’re going to have to believe in that so
you can make sure you pick the right path going forward.
No doubt you have the unconditional support of the
people in the back and the others who wrote letters for you
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who couldn’t be here I’m sure for perfectly understandable
reasons. You’re going to need to rely on that support
because nobody can do it alone.
But, you know, the warden’s letter, just as an example,
obviously speak volumes about what you could do when you
put your mind to it. It’s not every day a warden writes a
letter for someone getting sentenced. Its not unheard of,
but it’s not every day.
I don’t know what to make of some of the decisions
you made after pleading guilty because they were reckless
in the sense that they were not going to ultimately bear
fruit. They were self-destructive because as Mr. Gerber
mentioned, you know, the way these things work is that
you’re in for a penny, you’re in for a pound. You have to
bear your soul and fess up to everything you’ve done
because that could subject you to liability. And the
government needs that when it presents a cooperator that
-- the story it wants to tell is this individual has only one
incentive and that is to tell the truth [60]because if they
don’t tell the truth, they’re looking at this amount of time.
And of course the reason they’re looking at this amount of
time is because of all the crimes that have been admitted
to and committed.
And the reason they need to be able to tell that story is
because the Mr. Calhoun’s of the world will tear apart any
witness who goes 50/50 on them, right, and you understand
that. And it makes this case, I think, so tragic because
your a moment of redemption. This is one, but there was
an earlier one, right, that’s the -- that’s one of the things
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that that process does is it offers redemption because by
bearing your soul, you hope to wipe the slate as much as
possible. And it would not be unheard of for someone to
-- having spent four plus years in jail to get a sentence of
time served to acknowledge the redemption. And that’s
the tragedy in this case, is that I just wish you could have
seen the moment a little earlier and to capitalize on the
chance at redemption.
Now in terms of some of the other factors on the
3553(a) that focus on the offense conduct, the need to
impose a sentence and promote respect for the law,
provides for just punishment, accounts for the seriousness
of the criminal conduct. This was, obviously, very serious
conduct that you were involved in, narcotics distribution on
a grand scale, which is really nothing other than profiting
on other people’s addictions. And the people whose lives
were ruined or [61]adversely affected are not here today,
but they’re out there. They don’t -- they’re not identified in
a case like this. But the reason why the law has things like
very harsh mandatory minimums and high guidelines is to
reflect the impact that this type of activity has on society.
Now Mr. Calhoun rightly makes the point, this is not
a case where you are believed to have engaged in any
violence. The gun possession issue is significant legally
for reasons you know and we’ve discussed, but there’s no
evidence that you used the gun, that you threatened the
use of the gun. Now of course all of that is reflected in the
guidelines. The guidelines would be higher if a firearm
was discharged or if somebody got hurt. But nonetheless,
it certainly bears noting for the record.
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Deterrence. General deterrence, right, is the notion
that people who engage in this should understand that
this type of conduct should understand that there is a
potentially high price to be paid. Again, that’s why the high
sentence ranges are what they are and the high mandatory
minimums to try to convey that message.
Relatedly, here there’s the point that Mr. Gerber
made about protecting the integrity of the cooperation
process. The message can’t be that you can tell the truth
at an 80 percent level or you can tell 100 percent of the
truth about your past but then do 80 percent compliance
in terms of letting [62]the government know about things
you’re doing that you’re not supposed to be doing. You
can’t bargain that. It’s got to be all or nothing and I’ve
explained why, because it’s a very delicate process, this
cooperation process. The stakes are high. Someone sitting
at the defense table may be looking at mandatory 10,
mandatory 20, mandatory life. And from the government’s
perspective, the process has to play out with 100 percent
integrity because the justice system has to strive as
much as possible for 100 percent in terms of getting the
right answer. And if the incentives are such that if people
feel like they have wiggle room to lie, then it’s not just a
fact -- the government isn’t the victim, it’s the system of
justice that’s the victim. It may be a person who’s wrongly
convicted who’s the victim. The whole system suffers when
its integrity is threatened.
And so I understand the government’s position here.
And this is -- to be honest with you, this is the first time
I’ve had a case -- I’m been doing this job now, what, 14
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years where I’ve had anything like this. And I understand
the government’s viewpoint that it feels it needs to -- it’s
the sort of flip side of deterrence. It needs to -- it feels it
needs to defend the process so it sends the message to
people if you don’t want to cooperate, you don’t have to
cooperate. It’s fine. And you can go to trial and plead guilty
to whatever the charge is. But if you’re going to cooperate,
[63]you’ve got to come clean and you’ve got to stay clean
and you’ve got to make sure you don’t break the law and
you’ve got to be brutally honest about everything, and
anything short of that is not viable. And that’s a message
they want sent here and I understand that.
Now on the other hand, I think it would be unfair
to you to pretend like your cooperation wasn’t helpful,
because it was. Mr. Calhoun talked at length about the
case that is all done, the case in front of Judge Briccetti.
The information, Mr. Calhoun surmises, was compelling
enough where people didn’t even go to trial. There was lots
of reasons why people don’t go to trial, but it’s certainly
one reason that the person said well, there’s a lot of
evidence against me here so I’m going to try to cut the
best deal I can.
So I think that’s a factor here. I think it’s tricky
because it does risk sort of the bargaining of that
information and sort of saying but I -- so I should get credit
for that and the weight has sort of excused the misconduct.
But I still think it would not be right to pretend that your
information wasn’t helpful.
The need to avoid unwarranted disparity of course is a
factor, not only comparing you to the hypothetical person
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Appendix B
that’s charged with similar conduct, but also to the wouldbe cooperator. You know, I think a sentence that comes
close to how I might have sentenced a cooperator who did
everything [64]right would yield unwarranted disparity,
because the cooperator who goes all the way has earned
that sentence reduction. And it’s hard to quantify. Can we
say, okay, the cooperation here was at an 80 percent level,
a 75 percent level so, therefore, there should be that much
reduction? No. Because I do think that the government is
right. It doesn’t work on a sliding scale. So I’ve considered
that as well.
Where I come out on all of this, is that I think that the
biggest mitigating factor for Mr. Greenberg is the work
he’s done since his remand in this case. And it’s been a lot
of work, which is another way of saying I don’t give as much
weight to the cooperation. I think it should be considered,
but I’m more persuaded by the government’s view on
protecting the integrity of the cooperation process.
And I’m very troubled by the combination of the
substantial criminal history because even though Mr.
Greenberg has a Criminal History I, he’s got an extensive
criminal history. And the probation department notes this
in its recommendation, right. This is, what, the fourth
conviction and that combined with the recidivous conduct.
You were sitting on the perfect moment. You controlled
what you were going to do once you were -- entered this
opportunity at redemption, the cooperation agreement.
And you dropped the ball on a number of occasions in
ways that are very serious, and that to me is troubling.
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[65]And so in considering all of the 3553(a) factors,
it’s the judgment of the Court that the sentence that
is sufficient but no more than necessary is that Mr.
Greenberg be sentenced to the custody of the attorney
general for a period of 180 months to be followed by five
years of supervised release. I’m not going to impose a fine
because he can’t afford one. There’s no restitution and the
forfeiture is in the amount of?
MR. GERBER: It’s actually for specific property, your
Honor. It’s a certain dollar amount and a car.
THE COURT: Yes. So it’s -- all rights, title and
interest in what’s defined as the specific property in the
preliminary agreement. And the specific to property is
defined as $3,000 in US currency, $199 in US currency,
$3,000 in US currency, $500 in US currency, $5,035 in US
currency, $100 in US currency and a 2012 Acura TL with
a VIN number of 19UUA9F5XCA002666. And that’s the
entirety of the specific property; is that right?
MR. GERBER: Yes, your Honor.
THE COURT: Okay. The special assessment is $100.
The mandatory conditions of supervised release are that
Mr. Greenberg not commit another federal, state or local
crime and that he not unlawfully possess a controlled
substance, a firearm or destructive device.
I’m going to suspend the normal drug testing
****
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.