The court denied the Government request for upward departures, but said it would consider the Government's reasons for the request in its analysis of the 3553(a) factors:
Although an upward departure would be permitted under USSG §5K2.0(a)(3) and §5K2.21, the court declines to depart upward because a sentence within the computed Guidelines range is sufficient to satisfy the goals of sentencing. However, the court will consider the facts underlying the potential upward departures in conjunction with its analysis of the factors enumerated in 18 U.S.C. § 3553(a).
Additionally, in the event the court is required to re-sentence Defendant, it reserves the right to revisit these upward departure provisions to determine whether their application would be appropriate.
She also rejected his requests for a downward variance:
Defendant asks the court to vary downward because: (1) “the advisory [G]uidelines as calculated [. . .] call for a fundamentally unreasonable sentence”; (2) Defendant did not commit the offense conduct for personal gain or out of a sense of greed, but rather, “in order to continue what he viewed as the critical Lubavitch mission of providing Kosher food to the Jewish community”; (3) Defendant’s “charitable and civic activities are truly extraordinary”; (4) Defendant has a special relationship with his developmentally-disabled minor son; and (5) Defendant suffers from depression “that affected him during the period of the offense conduct, impaired his judgment and attention, and combined with his upbringing and religion to make it almost impossible for him to oppose his father and leave the business.” Motion for Downward Variance at 2, 8, 10, & 19 (emphasis in original).
As the reasons for rejecting the requests:
No matter Defendant’s motive, he defrauded the victim banks out of millions of dollars. He unlawfully placed his family business’s interest above the victim banks’ interest. His family business and he personally benefitted at the expense of all the victim banks’ innocent shareholders. The court finds that this is not a basis to vary downward in this case.
On his charitable works:
Additionally, it is entirely possible that a number of Defendant’s charitable deeds were funded with proceeds from his crimes. It is far easier to be generous with someone else’s money instead of one’s own.
On the autistic son:
However, such considerations of sympathy and compassion are present in all criminal cases that come before this court. In the vast majority of cases, defendants leave behind loving family members, all of whom are adversely impacted by being separated from a spouse, parent or child. Defendant is not unique in that respect. Fortunately, and unlike many cases that come before this court, Defendant’s son has a loving and competent mother as well as an extremely tight-knit, supportive extended family, all of whom are obviously devoted to him and accustomed to working with him. Accordingly, the court declines to vary downward on this basis.
What about the sentence being unreasonable because it must be “sufficient, but not greater than necessary” to comply with the purposes of § 3553(a)?
Were the court to vary, the court would vary upward to take into account additional criminal conduct involving harboring of illegal aliens, which was charged in over seventy counts of the Seventh Superseding Indictment and were later dismissed.
This judge isn't taking any chances:
When the sentencing reconvenes, the court will impose a sentence of 324 months
of imprisonment. The court notes that, even if it inadvertently erred in computing the advisory
Guidelines sentence, it would still impose a sentence of 324 months of imprisonment after considering the factors in § 3553(a).
She then orders $18 million in restitution.
In my view, as I wrote in April, this is an excessive sentence. And I'm no fan of Agriprocessor.
The sentence will be imposed tomorrow after which both sides will give hold press conferences. Then the appeal begins.
Our past coverage of the Postville, IA immigration raids and Agriprocessor is assembled here.
