Berman Defends 'Reasonableness' of Community Service Sentence, After 2nd Circuit Remand
A circuit panel sided with both the defense and the government, who said the 300 hours a year for each of the defendant's three-year supervised release was excessive.
March 23, 2018 at 05:37 PM
5 minute read
U.S. courthouse of the Southern District of New York in Lower Manhattan. Photo: Jannis Werner
U.S. District Judge Richard Berman of the Southern District of New York defended his imposition of a substantial community service sentence, after the U.S. Court of Appeals for the Second Circuit sided with both the defense and prosecutors in questioning the reasonableness of the 300 hours each year of a three-year supervised release.
He stated in an opinion released Thursday that he believed the sentence was not only reasonable but was the kind of reprieve from incarceration that advocates routinely argue more nonviolent offenders should receive.
In September 2015, Nikos Parkins pleaded guilty to conspiracy to commit health care fraud and conspiracy to commit bank fraud. Parkins had, according to prosecutors, joined two different schemes hatched by co-conspirators. In one he helped intentionally crash cars to generate fraudulent insurance payouts. In the other, he provided his bank account and other personal information to multiple co-conspirators who would deposit checks and then withdraw the cash before Parkins filed a false police report claiming his debt card had been lost or stolen.
Parkins began cooperating with the government. This led prosecutors to suggest a downward departure in his sentencing, which had a guideline range of four to 10 months.
At sentencing, Berman granted that downward departure, sentenced Parkins to time served, and did not impose a fine, despite a recommendation from the probation department. A forfeiture of $4,511.67 was agreed to by the defense, as was restitution of $1,011.67. What Berman did impose was 300 hours of community service during each of Parkins' three years of supervised release.
Berman noted at the time that he would “only be too happy” to entertain an application for potential reduction of the sentence “if, in fact—and I am hopeful that it will be the case” Parkins did “what's required, which is rather minimal.”
This is not how Parkins saw it. On appeal, he challenged Berman's sentence of 300 hours a year—or 900 total, if he were to serve out the entire supervised release—for violating the statute that governs the conditions of supervised release as not reasonably relating to the nonpunitive objectives of supervision and involving a greater deprivation of liberty than reasonably necessary.
The U.S. Attorney's Office, in an Oct. 6 affirmation from the line assistant that prosecuted the case, Assistant U.S. Attorney David Abramowicz, backed Parkins up.
“The Government therefore concedes that the community service condition in this
case was imposed in a manner that was procedurally unreasonable,” Abramowicz wrote.
In its Feb. 13 mandate, the panel of Circuit Judges John Walker Jr., Peter Hall and Raymond Lohier Jr. agreed with Parkins and the prosecutors, remanding for resentencing. The panel raised two issues. The first, whether a potential sentence of 900 total hours was reasonable, given a sentencing guideline note that states that “generally” community service should not exceed 400 hours. The second was whether Berman had met the conditions for supervised release sentencing that made the punishment “reasonably related” to justifiable public interests.
In his opinion Thursday, Berman outlined exactly why his mandating of the community service hours was justified, infusing his order, which reinstated the sentence, with legal precedent and scholarly quotes, such as the two on the value of community service as a kind of alternative to incarceration that lead off the decision.
Berman noted that Parkins' co-conspirators, who prosecutors acknowledged were far more deeply involved, received disparate sentences. One was sentenced to only 250 hours of community service a year for three years of supervised release. However, that defendant also paid over $708,000 in restitution and forfeited about the same. The other co-conspirator faced three years of supervised release with the first six months in in-home confinement. His restitution and forfeiture totaled more than $190,000. Quoting the Second Circuit's decision from 2014's United States v. Hatala, Berman noted the circuit had found disparity is “one factor, not the determinative factor, to be considered in identifying the appropriate sentence.”
Beyond this, and more to the Second Circuit's concern, Berman wrote in detail about the part of the U.S. Code that deals with supervised release, 18 U.S. Code §3583. For each point of consideration identified in §3583—for example, the nature and circumstances of the offense and the history and characteristics of the defendant, or to protect the public from future crimes—Berman argued that substantial community service was a fitting punishment for the crime. He also noted that service over 400 hours had been routinely upheld by numerous courts, including the Second Circuit.
A March 14 note from Parkins' attorney, assistant federal defender Daniel Habib, requested that Berman cap Parkins' hours at 120, which he's already performed. Doing otherwise, Habib said, would “contravene” the reasonability requirements under §3583.
“More hours in a soup kitchen would neither 'protect the public' from Parkins' 'further
crimes,' nor 'provide' him with 'needed educational or vocational training,'” Habib wrote, quoting the statutory factors to be considered in imposing a sentence.
Habib declined to comment on Berman's order.
In his order, Berman said he “intends prospectively” to keep Parkins' sentence in place. A resentencing hearing is scheduled for March 27.
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