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The 2d U.S. Circuit Court of Appeals has rejected a district court’s decision to sentence a multimillion-dollar tax cheat to only seven months in prison. U.S. v. Trupin, No. 05-2934-cr. The court said that Barry Trupin’s sentence amounted to an 80% reduction from the bottom of the applicable range set by the Federal Sentencing Guidelines. It was “unreasonable,” according to the panel, because U.S. District Judge Lawrence McKenna of the Southern District of New York had failed to weigh all of the sentencing factors listed in 18 U.S.C. 3553(a), and the record did not support the factors on which he did rely. The decision is a rare instance of the circuit court rejecting a sentence as unreasonable since the U.S. Supreme Court’s 2005 ruling in U.S. v. Booker, 543 U.S. 220, that the guidelines are advisory, not mandatory. The 2d Circuit followed Booker with U.S. v. Crosby, 397 F.3d 103 (2005), in which it interpreted Booker as saying that, henceforth, although judges have greater freedom to fashion sentences, they still must consult the guidelines structure. Their decisions would be reviewed for reasonableness. McKenna had first sentenced Trupin in 2004 to 41 months in prison. After Booker and Crosby, the 2d Circuit granted Trupin a “Crosby remand” for McKenna to decide whether to resentence. Citing Trupin’s caring for his ailing wife and the unlikelihood of his committing the same crime again, McKenna cut the sentence to seven months. This was nearly three years below the applicable guidelines range, and the government appealed, saying that McKenna gave too much weight to Trupin’s age and family ties and too little weight to other factors enumerated in Section 3553(a), including the seriousness of the offense, the need for deterrence and the suggested guidelines range. Writing on behalf of the court, Judge Richard Wesley said that “neither the way in which the district court performed its duty to consider the � 3553(a) factors nor its guidelines calculation is at issue.” Wesley said the circuit’s review of sentences for reasonableness since Booker and Crosby “has been measured.” The circuit rejected sentences as unreasonable if they reflected judges’ policy disagreements with the guidelines, and if there had been “unjustified reliance” placed on one factor in Section 3553(a). It also rejected sentences as unreasonable if they were based on considerations not included in Section 3553(a). Here, Wesley said, the “district court placed unjustified reliance on Trupin’s age and family circumstances. Moreover, to the extent that the district court gave undue weight to considerations not unique to the defendant, relied upon an improper factor, or substituted personal views for the [U.S. Sentencing] Commission’s policies, that too was error.” While McKenna’s comments on age and recidivism may be true, Wesley said, “Trupin has proven himself the exception to the rule.” Trupin “began his questionable escapades at the age of 54 with the receipt of stolen painting, continued with an intricate multi-million dollar tax evasion scheme, and ended with a bad faith bankruptcy filing in his late sixties.” Moreover, Trupin continued to insist on his innocence at sentencing, and “even refused to complete a financial affidavit in connection with his pre-sentence report. Aging clearly has not increased Trupin’s respect for the law.” The sentence also fell short, Wesley said, because it didn’t reflect the seriousness of Trupin’s offense. His crimes included using a number of devices to avoid reporting more than $6 million in income. The judge said that “Trupin enlisted the aid of family members to claim ownership of certain assets, created phony paper trails, employed shell corporations and trusts, and shipped expensive assets to the Vancouver Islands in Canada.” The panel remanded the case for a third round of sentencing.

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