USA v. Paul Kaufman
OPINION filed  (Pages: 7) for the Court by Judge Garland. [14-3041]
USCA Case #14-3041
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2015
Decided June 23, 2015
UNITED STATES OF AMERICA,
PAUL F. KAUFMAN,
Appeal from the United States District Court
for the District of Columbia
Michael A. Olshonsky, appointed by the court, argued the
cause and filed the briefs for appellant.
Adrienne Dawn Gurley, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Elizabeth Trosman and
Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, and ROGERS and PILLARD,
Opinion for the Court filed by Chief Judge GARLAND.
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GARLAND, Chief Judge: Paul Kaufman was a salaried
employee at a nonprofit that received federal funds. Feeling
“overworked and undercompensated,” Kaufman formed two
outside companies and used his position at the nonprofit to
approve invoices in their name. Between 2004 and 2012,
Kaufman employed this scheme to pay himself over $110,000
in additional compensation. He also used the nonprofit’s credit
cards to pay for a variety of personal expenses, totaling at least
$46,000. Once discovered, he pled guilty to embezzling from an
organization that received federal funds. On appeal, he
challenges the 24-month sentence imposed by the district court.
For the reasons set forth below, we affirm the judgment.
The government asserts that we should not even consider
this appeal because Kaufman’s plea agreement expressly waived
his right to appeal his sentence. Kaufman did indeed “waive the
right to appeal the sentence in this case, including any term of
imprisonment,” unless the sentence was above the statutory
maximum or above the U.S. Sentencing Guidelines range
determined by the court. Plea Agreement 7 (J.A. 129). Neither
circumstance is present here. See 18 U.S.C. § 666(a) (indicating
that Kaufman’s statutory maximum would be 10 years); infra
Part II (discussing Kaufman’s Guidelines range). Ordinarily,
then, we would agree with the government that Kaufman’s
appeal is barred. See, e.g., United States v. Adams, 780 F.3d
1182, 1183-84 (D.C. Cir. 2015); United States v. Guillen, 561
F.3d 527, 529 (D.C. Cir. 2009).
At Kaufman’s plea hearing, however, the district court
made two problematic statements in explaining the waiver
provision in the plea agreement. The court initially told
Kaufman that he “would still have the right to appeal the
sentence if [he] believe[d] the sentence is illegal.” Plea Hr’g Tr.
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9. Later, it told him that he might have the right to appeal, under
some circumstances, if he did not “like” the sentence. Id. at 22.
Those statements transformed the nature of Kaufman’s plea
waiver in the same way the district court’s plea colloquy did in
United States v. Godoy, 706 F.3d 493 (D.C. Cir. 2013). There,
notwithstanding that the defendant had signed a plea waiver
similar to Kaufman’s, the court told the defendant that he was
waiving his right to appeal unless he should “come to believe
. . . that the Court has done something illegal, such as imposing
a period of imprisonment longer than the statutory maximum.”
Id. at 495. That explanation, we said, “mischaracterized the
meaning of the waiver in a fundamental way.” Id. “Taken for
its plain meaning -- which is how criminal defendants should be
entitled to take the statements of district court judges -- the
court’s explanation allows [the defendant] to appeal any illegal
sentence.” Id. The same is true here.
As in Godoy, the prosecution could have sought to correct
the district court’s statements and to ensure that the defendant
understood the right he was agreeing to forgo by submitting a
guilty plea. Id.; see also United States v. Fareri, 712 F.3d 593,
594 (D.C. Cir. 2013). But the prosecution did not object. Under
those circumstances, “the district court’s oral pronouncement
controls,” and the defendant’s “appeal is not barred.” Godoy,
706 F.3d at 496; see Fareri, 712 F.3d at 594-95. The
government offers no argument to the contrary.
Kaufman’s principal challenge to his 24-month sentence is
to the district court’s determination of the loss that his offense
caused the nonprofit. The court agreed with the government that
the total loss included all unauthorized payments to Kaufman’s
companies and all personal expenses charged to the nonprofit’s
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credit cards. Under that calculation, the total loss exceeded
$120,000. This resulted in a ten-level increase in Kaufman’s
offense level under the Sentencing Guidelines, see U.S.S.G.
§ 2B1.1(b)(1), and a Guidelines range of 24-30 months, see id.
ch. 5, pt. A (sentencing table); Presentence Investigation Report
(PSR) ¶ 9.
Kaufman disputed that calculation. He asked the court to
reduce the amount of loss by the fair market value of the
services rendered by his companies. See U.S.S.G. § 2B1.1 cmt.
n.3(E)(i). The companies had two employees and did work for
the nonprofit that Kaufman contended was “needed.”
Sentencing Hr’g Tr. 10, 13. That work, he argued, had a value
of at least $50,000. See Kaufman Sentencing Mem. at 2 (J.A.
44). Reduced by this amount, the total loss would be between
$70,000 and $120,000, and would therefore result in only an
eight-level increase in his offense level, see U.S.S.G.
§ 2B1.1(b)(1), with a corresponding Guidelines range of 18-24
months, see id. ch. 5, pt. A (sentencing table); PSR ¶ 9.
The district court rejected Kaufman’s argument. The court
pointed to Kaufman’s signed Statement of Offense, which
expressly acknowledged that his scheme was “a way to collect
additional compensation for the work that he was being paid to
perform.” Statement of Offense ¶ 4 (J.A. 115). At the
sentencing hearing, Kaufman confirmed that the nonprofit did
indeed pay him a salary to perform those services. See
Sentencing Hr’g Tr. 13. The court therefore declined to give
Kaufman credit for the value of work for which the nonprofit
had already paid.
Although a district court is not required to follow the
Guidelines after United States v. Booker, 543 U.S. 220, 259-60
(2005), the Guidelines remain “the starting point and the initial
benchmark” for a sentencing decision, Gall v. United States, 552
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U.S. 38, 49 (2007); see also Peugh v. United States, 133 S. Ct.
2072, 2079-80 (2013). We therefore review this kind of
sentencing challenge to “ensure that the district court committed
no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range” or “failing to
consider” the statutory sentencing factors set forth in 18 U.S.C.
§ 3553(a). Gall, 552 U.S. at 51. If the sentencing decision is
“procedurally sound,” the remaining question is whether the
resulting sentence is substantively reasonable, which we
consider under an abuse-of-discretion standard. Id. In this
circuit, a sentence that is within the Guidelines range is entitled
to a presumption of reasonableness on appeal. United States v.
Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006); see Rita v. United
States, 551 U.S. 338, 346-47 (2007).
Here, we do not need to address the district court’s rejection
of Kaufman’s loss calculation. Although we do not mean to
suggest that the court’s analysis was erroneous in any way, there
is an even simpler reason that Kaufman’s appellate challenge
must fail: the district court said it would impose the same
sentence even if it accepted Kaufman’s own loss calculation.
See Sentencing Hr’g Tr. 49. A 24-month sentence would still be
appropriate, the court said, “in light of the extended period of
this fraud, its relatively sophisticated nature, the efforts that
were taken to conceal the crime, the steps that were taken to
orchestrate and maintain this scheme and the fact that the theft
was from an employer, and thus involved a serious breach of
In United States v. Thompson, 994 F.2d 864, 868 (D.C. Cir.
1993), we declined to remand a sentencing decision in almost
identical circumstances. Faced with a dispute over which
criminal history category applied, the sentencing judge had
“made it clear he would impose the same sentence under either
criminal history category.” Id. In light of that statement, we
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deemed it “futile to remand for resentencing.” Id. We reach the
same conclusion here. See also United States v. Simpson, 430
F.3d 1177, 1184-85, 1190 n.15, 1191-92 (D.C. Cir. 2005).1
Under either the court’s calculation or Kaufman’s, the 24month sentence is within the Guidelines range. See U.S.S.G. ch.
5, pt. A (sentencing table); id. § 2B1.1(b)(1). It is therefore
entitled to a presumption of reasonableness on appeal. See
Dorcely, 454 F.3d at 376. Kaufman has not rebutted this
presumption, nor could he. In imposing the sentence, the district
court carefully considered the § 3553(a) sentencing factors. In
particular, it found the offense to be “very serious” in nature
because Kaufman had engaged in a “lengthy and complex”
scheme that involved hundreds of discrete acts of
embezzlement, abusing the trust of his employer, and concealing
his fraudulent conduct even after he was confronted. Sentencing
Hr’g Tr. 43-47.
Kaufman also challenges his sentence on the ground that the
district court neglected to adequately consider several specific
sentencing factors. In particular, he says, the court failed to take
into account his personal circumstances, including the medical
needs of his spouse and child and his extensive cooperation with
law enforcement. See 18 U.S.C. § 3553(a)(1). But that is not
correct. See Sentencing Hr’g Tr. 46, 48 (discussing the needs of
Kaufman’s family); id. at 47 (discussing his cooperation). Nor
did the court fail, as Kaufman contends, to consider the need to
avoid unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a)(6). The court determined that the average prison term
for defendants with Kaufman’s criminal history category who
Similar to this case, the sentence the court imposed in Thompson
was at the bottom of the government’s proposed Guidelines range and
near the top of the defendant’s proposed range. See Thompson, 994
F.2d at 867-68.
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were convicted of the same offense was 24 months. Sentencing
Hr’g Tr. 47-48. Although the court considered Kaufman’s
argument that many defendants in similar circumstances receive
probationary sentences, it concluded that such a sentence would
be insufficient in Kaufman’s case. Id.
In sum, even if the district court’s loss calculation were
erroneous, we would not require it to reconsider Kaufman’s
sentence. The court expressly stated that it would regard the
same sentence as appropriate under either party’s calculation.
Because that sentence is within-Guidelines, reasonable, and
thoroughly explained, there is no warrant for a remand.
For the foregoing reasons, the judgment of the district court
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