From the 7th Circuit Court of Appeals:
United States of America v. Edward Vrdolyak, No 09-1891
Edward Vrdolyak pleaded guilty to conspiracy to commit mail and wire fraud and agreed in the plea agreement that the loss intended by his fraud was between $1 million and $2.5 million. He was sentenced to five years of probation, with a community-service obligation but no confinement, and to pay a $50,000 fine (a modest amount, because the defendant has a high income, and a net worth in excess of $1 million if his large loans to members of his family are included). The government appeals, contending that the judge miscalculated the sentencing-guidelines range applicable to the defendant’s crime and committed other errors. Although a judge is no longer required to give a guidelines sentence, he is required to make a correct determination of the guidelines sentencing range as the first step in deciding what sentence to impose. Gall v. United States, 552 U.S. 38, 50 (2007); United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009).
The zero loss found by the district judge created a guidelines sentencing range of zero to six months in prison; the correct loss figure of $1.5 million (which incidentally was within the range that the defendant agreed in the plea agreement was the intended loss attributable to his crime) ups the sentencing range to 33 to
Ordinarily we would stop here and remand for resentencing. But the judge went on to rule that if he was wrong and there was a loss of $500,000, which would create a guidelines range of 27 to 33 months in prison,he would give the defendant a below-guidelines sentence of no prison—in fact the identical sentence that he imposed on the assumption of zero loss.
But $500,000 was also error. And while a judge can give a below-guidelines sentence, the sentence cannot stand if it is based on a legal, factual, or analytic (connecting law and fact) error that is not harmless. The court of appeals must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall v.
United States, supra, 552 U.S. at 51. “The allowable band of variance [in sentencing] is greater after Booker than before, but intellectual discipline remains vital.” United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir. 2009); see 10 No. 09-1891 also United States v. Peña-Hermosillo, 522 F.3d 1108, 1112(10th Cir. 2008).
The judge committed three errors in his alternative ruling. First, the $500,000 figure was erroneous for the reasons we’ve given already. The correct figure was $1.5 million and the guidelines range was therefore higher than the judge thought. Second, repeating an error in his computation of loss, the judge thought that the defendant deserved leniency because he had intended no harm to the medical school, but on the contrary had intended a benefit—that the school should receive the highest bid from Smithfield. Notice the equivocation implicit in “highest bid from Smithfield.” The highest bid from Smithfield is the bid that gets Smithfield the property; it is not the highest bid the seller would have obtained had the bidding process not been contaminated by the defendant’s kickback.
The judge’s third error was to give, without adequate articulated consideration, enormous weight to letters urging leniency for the defendant, while virtually ignoring the evidence that tugged the other way. There were 48 letters in all, some from members of the defendant’s family and others from persons for whom he had done favors of a charitable nature, including gifts of money.
The original sentence of probation and fines was granted by U.S. District Judge Milton Shadur.
I'll provide an update as to whether the new judge comes to the same result. A result that is not deemed improprer by the Appeals Panel.