U.S. v. Livesay, 587 F.3d 1274 (11th Cir. 2009)

Giving new meaning to the phrase “some guys have all the luck,” this case involves a defendant who, in 2004, pled guilty to conspiracy to commit wire fraud, securities fraud, and falsifying books and records; falsely certifying financial information filed with the SEC; and a forfeiture count. At sentencing, the district court considered the PSI, which recommended a sentence from 78 to 97 months, 2 to 3 years of supervised release and a fine range of $12,500 to $1million and then granted the government’s motion for a downward departure and imposition of 60 months imprisonment. However, after the recommendations, the judge sentenced the defendant to 60 months of probation.

The government appealed and the Eleventh Circuit Court reversed, holding the district court failed to state reasons for its extreme downward departure. At the resentencing, the same district court judge imposed the same sentence as before. Again, the government appealed and the appellate court reversed, finding both the district court’s departure and the sentence imposed unreasonable given the defendant’s role in a massive fraud scheme.

The defendant filed a writ of certiorari and the Supreme Court granted the petition, vacated the appellate decision and remanded for reconsideration with Gall v. United States, 552 U.S. 38 (2007). At the second resentencing, the original judge recused himself. The new assigned judge agreed with the sentencing range of 78 to 97 months and granted the government’s 5k1 motion, yet only imposed 5 years of probation.

The government appealed for the third time and the appellate court, considering Gall, and the §3553(a)(2) factors, reversed, stating “only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute”. To be continued.