U.S. District Court, Western District of New York Case Summaries:

Daily Record (Rochester, NY), Aug 29, 2008

U.S. District Court, Western District of New York

Sentencing

Guidelines Departure

U.S. v. Weisberg

07-CR-66

Judge Scott

Background: Weisberg was convicted of the willful failure to file a tax return and moved for reconsideration of an order denying either a downward departure from the sentencing guidelines or a non- guidelines sentence. The sentencing report recommended a sentence of imprisonment from 21 to 27 months, to run consecutively. The defendant moved for a downward departure or a non-guidelines sentence in order to be incarcerated in a halfway house. Moving for reconsideration, the defendant argues the court erred by failing to recognize the full scope of its discretion in sentencing. He contends extraordinary circumstances need not be presented in order for a departure from a guidelines sentence and the court does not need to expressly disagree with the policies underlying the guideline sentence.

Ruling: The motion is denied. The court finds the defendant's daughter's dependence on him is not enough to warrant a disparate sentence, nor is the effect on the defendant's employees compelling enough to warrant a non-guidelines sentence or a downward departure. If the court were to hold otherwise, "any professional or business person would argue the impact of his or her sentence on employees or clients in order to get a lesser sentence and create unwarranted disparity among similarly situated offenders."

Rodney O. Personius of Personius Melber LLP for the defendant, and James P. Kennedy Jr., U.S. Attorney's Office, for the United States