L'maan Yedoo

Moshe Rubashkin, Appellant: Nicholas J. Nastasi, Philadelphia, PA.

JUDGES: Before: ALITO, FUENTES, BECKER, Circuit Judges.

OPINIONBY: FUENTES

OPINION: [*193] OPINION OF THE COURT

FUENTES, Circuit Judge.

Defendant Moshe Rubashkin appeals the entry of judgment and the imposition of a 15-month term of incarceration in connection with his plea of guilty to one count of bank fraud. Rubashkin contends that the District Court erred in considering an earlier incident in which Rubashkin was placed in an Accelerated Rehabilitation Disposition ("ARD") program as a result of his violation of the Pennsylvania Workmen's Compensation Law. According to the defendant, his participation in the ARD did not result in a disposition of guilt. In addition, he argues [**2] that the District Court erred in failing to give an explanation for its 15-month sentence. We find that the District Court did not err in considering the events surrounding Rubashkin's ARD for purposes of determining his sentence within the relevant guideline range and that the Court's statement of reasons was appropriate under 18 U.S.C. § 3553. Therefore, we will affirm the judgment of the District Court.

I.

Rubashkin was the owner and president of Montex Textiles Ltd. ("Montex"), a supplier of raw textiles material located in Allentown, PA. In August 1998, Montex opened separate payroll and general expense accounts with First Union National [*194] Bank ("First Union"). Rubashkin and another individual had signatory authority on both of Montex's accounts.

The Government's investigation revealed that between March 25, 1999 and March 30, 1999, Rubashkin attempted to deposit three checks payable to Montex, all drawn from the account of an entity named First Choice Associates, into Montex's First Union accounts. In the aggregate, the three checks totaled approximately $ 325,000. Rubashkin withdrew or used most of the funds which he attempted to deposit. Shortly [**3] thereafter, First Union learned that there were insufficient funds in the account from which the deposited checks were drawn. The fraud resulted in a loss to the bank in excess of $ 300,000.

Prior to the offense conduct in question, Rubashkin was involved in a separate punishable offense in connection with his operation of Montex. Pennsylvania law requires companies to secure worker's compensation insurance for their employees. See 77 Pa. Cons. Stat. Ann. § 501. Nevertheless, when an employee of Montex became injured and attempted to recover disability payments, it became apparent that Rubashkin, in his capacity as president of Montex, had failed to secure the required insurance. On May 4, 2001, Rubashkin was placed in an ARD program for a period of 18 months. Subsequently, he was ordered to pay $ 968 in fines, costs, and restitution.

On June 6, 2002, the defendant was charged in a one-count information with bank fraud in violation of 18 U.S.C. § 1344. Pursuant to a negotiated plea agreement, Rubashkin entered a plea of guilty to the sole count on July 31, 2002. The District Court conducted a sentencing hearing on November 6, 2002. At the hearing, the [**4] District Court accepted the parties' modification of Rubashkin's guideline offense level, which (1) eliminated the two-level enhancement for more than minimal planning, and (2) correspondingly reduced the acceptance of responsibility reduction to two levels, instead of three. The Court also denied the defendant's motion for downward departure. The Court thus determined that Rubashkin's guideline offense level was 12, with a criminal history category of I, reflecting no criminal history points. The criminal history computation was made without regard to Rubashkin's ARD. Therefore, the applicable guideline range for defendant's offense was 10 to 16 months of imprisonment.

At the sentencing hearing, the District Court also inquired into Rubashkin's ARD. See Joint App. at 27a, 39a-40a. When asked if the paragraph in the pre-sentence investigation report ("PSR") relating to his ARD was true, Rubashkin confirmed that it was. Specifically, the Court and the defendant engaged in the following colloquy:

THE COURT: Before you leave, I'd like you to take a moment and turn to page six of the presentence investigation report and read paragraph 31 to yourself. ...
THE COURT: Is [**5] that correct?
THE DEFENDANT: Yes.
THE COURT: Thank you. That's all I wanted to know.

Id. at 39a-40a.

The Court then sentenced the defendant to 15 months of imprisonment and 5 years of supervised release and ordered restitution in the amount of $ 232,936.99.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the entry of judgment and imposition of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to the [*195] extent that Rubashkin's appeal alleges errors of law.

III.

Rubashkin's primary argument on appeal is that the District Court erred in considering his May 2001 ARD in determining his sentence. n1 In doing so, Rubashkin relies heavily on § 4A1.2(f) of the United States Sentencing Guidelines ("USSG"). At the outset, we note that neither the Probation Office, nor the District Court violated § 4A1.2(f) in the computation of his criminal history category. Section 4A1.2 is titled "Definitions and Instructions for Computing Criminal History," and subsection fmerely provides that, "diversion from the judicial process without [**6] a finding of guilt (e. g., deferred prosecution) is not counted [in the computation of criminal history]." USSG § 4A1.2(f). In the present case, both the Probation Office and the District Court recognized that Rubashkin's ARD was a diversionary disposition within the meaning of § 4A1.2(f), and therefore, the defendant was not assessed any criminal history points. In fact, Rubashkin cannot point to any error in the computation of his criminal history category.

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n1 Rubashkin's argument on appeal requires some clarification. He contends that the District Court actually considered his ARD and that the ARD was a factor in the Court's decision to sentence him at the high end of the applicable guideline range. To some extent, this is speculation because, beyond the colloquy above, the District Court did not expressly state what impact the ARD had on its ultimate sentence. We also agree with the Government that there were other factors which could have contributed to the decision to sentence the defendant to 15 months of incarceration. See Appellee's Brief, at 18 n. 6. Nevertheless, the record reflects that the District Court inquired about the ARD and issued its sentence immediately following the colloquy above. Therefore, we accept Rubashkin's argument that his ARD was likely a consideration in the District Court's sentencing decision, and our analysis proceeds from this general presumption. We will not, however, speculate as to whether Rubashkin's ARD was the sole or primary reason for his ultimate sentence.


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The most that can be said of the defendant's ARD is that the District Court may have considered it, in conjunction with other possible relevant factors, in determining where, within the properly calculated guideline range, to sentence Rubashkin. As to this inquiry, § 4A1.2(f) simply does not control. Rather, that inquiry is guided by § 1B1.4 which provides: "in determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." USSG § 1B1.4 (emphases added). n2 The commentary to § 1B1.4 expressly contemplates the scenario where a court could consider an unindicted offense when determining where to sentence a defendant within the guideline range: "if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the guidelines would provide a reason for sentencing at the top of the guideline range and may provide a reason for sentencing above the guideline range." USSG [**8] § 1B1.4, commentary. The language of § 1B1.4 makes it clear that "Congress intended that no limitation [*196] would be placed on the information that a court may consider in imposing an appropriate sentence." Id.

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n2 USSG § 1B1.4 explicitly references 18 U.S.C. § 3661 which states: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."


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Although district courts may consider a broad range of factors at sentencing, we recognize that the breadth of § 1B1.4 is limited to background information not "otherwise prohibited by law." The commentary to § 1B1.4 expressly references the policy statements in Chapter 5, Part H of the Sentencing Guidelines as providing examples of factors that should not be considered or should only be considered for limited purposes. USSG § 1B1.4, commentary. For instance, [**9] as the Government observes, § 5H1.10 provides that considerations of race, sex, national origin, creed, religion, and socio-economic status are not relevant in the determination of a sentence. We note that none of the policy statements in Chapter 5, Part H suggests, either explicitly or implicitly, that a diversionary disposition should not be considered in sentencing decisions under § 1B1.4.

This Court's precedents support the "considerable leeway" afforded to sentencing courts pursuant to § 1B1.4. See United States v. Baird, 109 F.3d 856, 863 (3d Cir. 1997). In Baird, we addressed the issue of whether conduct underlying dismissed counts was relevant in deciding whether to depart upward from the guidelines range. We held that "conduct underlying dismissed counts--which is conduct that is neither formally charged nor an element of the offense--may be considered at sentencing," so long as the dismissed counts related in some way to the offense conduct. Id. at 864-65. Our decision relied in part on the Supreme Court's decision in United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997), where the Court held [**10] that a sentencing court may consider the conduct underlying an acquitted charge pursuant to § 1B1.4, as long as the conduct at issue has been proved by a preponderance of the evidence. Given that § 1B1.4 permits the consideration of conduct underlying dismissed counts and conduct of which a defendant has been acquitted, there is simply no support for Rubashkin's position that the District Court was not permitted to consider his diversionary disposition.

Notwithstanding the District Court's straightforward consideration of his ARD, Rubashkin contends that the Court's sentencing decision was improper in two additional respects. First, Rubashkin argues that by considering his diversionary disposition and sentencing him to the high end of the applicable range, the District Court in effect incorporated his ARD into his criminal history category because the sentence ultimately imposed would have been at the middle of the guidelines range upwardly adjusted for his criminal history. n3 Thus, Rubashkin merely makes the unremarkable observation that his guideline range overlaps with the hypothetical range that would have applied if he was in the next higher criminal history category. This [**11] is beside the point. At any given offense level, a number of the ranges along the criminal history category axis overlap. The relevant inquiry is not whether the ranges overlap, but rather [*197] whether the District Court lawfully exercised its wide latitude in sentencing the defendant within the properly calculated guideline range.

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n3 With an offense level of 12 and a criminal history category of I, the applicable guidelines range was 10 to 16 months. With the same offense level of 12 and a criminal history category of II, Rubashkin's guidelines range would have been 12 to 18 months.

As discussed above, we fail to see the relevance of this argument, and in any event, the Government correctly points out that even if Rubashkin's ARD had actually been considered, it would have resulted in only one criminal history point which would have left the defendant in the same criminal history category I. See USSG § 4A1.1(c).

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Lastly, Rubashkin contends that the District Court erred in failing to state its reasons for [**12] imposing a 15-month term of incarceration. We disagree. 18 U.S.C. § 3553 requires a district court to state the reasons for its sentence when (1) the sentence departs from the applicable guideline range; or (2) the sentence is within the guideline range and that sentence exceeds 24 months. It follows that when the applicable guideline range is less than 24 months and the sentence ultimately imposed is within the applicable range, the court is not required to state its reasons. See United States v. Graham, 72 F.3d 352, 360 (3d Cir. 1995) (Nygaard, J., concurring).

For these reasons, we hold that the District Court did not err by inquiring into or considering Rubashkin's diversionary disposition when determining where, within the properly calculated guideline range, to sentence the defendant. Furthermore, we find that the District Court was not required to state the reasons for its sentence because the applicable guideline range was less than 24 months, and the sentence ultimately imposed was within that range.

IV.

For the reasons set forth above, we will affirm the judgment of the District Court.

This Story comes from an insiders web page, (a must read).

Tuesday, August 7, 2007
Moshe gets Rabbi Light fired from his job after 32 years of working there!
Yesterday on a real ugly day (the weather sucked, or just typical ny summer weather), Rabbi Light sat down with Moshe Rubashkin, Harvey Lang, Mulle Plotkin, and Rabbi Zirkind. The meeting was about discussing Rabbi Lights future at his job in the community council office (weatherization). The goal was to get Rabbi Light fired with a Rov involved. And thats what they got. I will have to say that Mulle Plotkin who until now has been a big Moshe Rubashkin sympathizer ( in slang: butsucker) was actually siding with Rabbi Light. Harvey Lang had no clue what the hell was going on, thats bc the meeting was in Yiddush ( I'm not sure if English would have made a difference, since he loves Moshe, G-d knows why!). And Rabbi Zirkind sat like a puppet as Moshe gave him instructions on exactly what he wants to be done to Rabbi Light. And so it was.
Moshe again got his way. At the same time he is ruining someones life. He has taken away any dignity that Rabbi Light ever had by hitting him. Now he has take n away his job. Rabbi Light was working there for 32 years, and he was and is the most liked person in the office. Now he doesnt have a job. Where is he supposed to find work at 60 years old. ( I spoke personally to four workers in the office and they told me that the reason why they havnt stood up for Rabbi Light is bc they fear that Moshe will have them fired).
But lets not lose focus. My goal is to show you on a daily basis how Moshe is a sick sadistic, barbarous, brutal, fiendish, perverse,ruthless, vicious, uncivilized piece of shit. Somebody has to get him back. And we should all be able to watch. And laugh.

Looking for your HELP

BH


Acording to all Rabbinic opinions that we saught, it is not just permited, you, we are all obligated to spread theese storys and comments about MOSHE THE FELON, because we are M'chuyev to protect one another from evel and danger at all cost.

Therefore..

1- Anyone and everyone that may have a story that is of importants please don't think twice, do what you need to.

1- Please spread the word about this web page, all over.

Another Story For All To Know

As support for his administration continues to erode, Moshe Rubashkin persists in fomenting machlokis and division in the community. For many weeks he has been trying to buy the Levi aliya on Shavuos in 770 for his hand-picked "Rav" Shlomo Segal. This is part of his continuing campaign to destroy the authority of the Beis Din by exacerbating the tensions between the Rabbonim, and by causing confusion as to who are the Rabbonim.


The Gabboim decided that, as long as the matter has not been settled by an impartial Din Torah, they will not allow the Aliyas in 770 to be used as a weapon in the machlokis over whether R. Segal's election was valid. They therefore refused to give the aliya to R. Segal.


Rubashkin has now threatened that, if the aliya does not go to Segal, he will have Rabbi Osdoba order the Gabboim to pull out of the lawsuit with Krinsky and give Krinsky control over 770.

An Old Post, (from another web page).

Simple Answers Says:

June 28th, 2007 at 10:45 pm
All your questions have been asked and answered many times in the past. Moshe is a master manipulator who has Lang and Plotkin under his control. They are both terrified of his tantrums AND both get just enough kovod to keep them going. Talk to either of them - no sechel but hungry for kovod. Moshe has their number.
Nash and Sperlin refused to be controlled so he threw them out. When they tried to stick up for their rights he ran a terror campaign against them in the community and no one stood up for them (including me) even those who knew they were right and according to halacha.
So what do you want from Light? If he goes to the Police he will be labeled and ostracized as a moser. If he goes public in the community he will be fired (and maybe beaten up again). If he goes to Rav Schwei Rubashkin won’t go. If he goes to Rav Osdoba and the others, he automatically loses.
Before you judge Light for not pressing charges, are you willing to sign your name to your comment above? Are you willing to start a petition to impeach this crazy man? If you do, I will sign it with you.

For Those That Don't Know

Article Updated 6/2907

Once again, Moshe Rubashkin has publicly lost control of himself and attacked a Coucil employee in the middle of the JCC offices as horrified staff looked on. The victim this time was Rabbi Shmuel Light, longtime Council employee and Director of the Weatherization Program in the Council.

Witnesses report that the incident happened at around 1 p.m. today, in the Council offices at 392 Kingston Avenue. Rubashkin and Light were talking when, without warning Rubashkin started screaming and throwing things. He then started to shove and push Light. When Light broke away he smashed Light's computer and screamed that he was fired.

[The following details were added to the original article]

The altercation began when Rubashkin asked Light to take care of a tenant who had a problem with a child with medical problems. Light responded that there are social workers at the Council who would be more suited to the task.Rubashkin ordered Light to do as he told him to and started screaming. He picked up the computer monitor and smashed it, and did the same with the printer. He overturned Light's desk and started ripping up files. Then he grabbed Rabbi Light by the collar of his shirt and smashed him up against the wall and hit him. Light broke away and went to R. Shlomo Segal's office - Segal was at the door. Rubashkin chased him, grabbed him again and smashed him up against the wall again. Segal retreated into his office at this point. Rubashkin screamed that Light was fired and threw him out.

Police were called and took a report. Thus far no arrest has been made.

Light was taken to a local hospital for a tetanus shot as a precaution for a cut he received in the altercation.

Rubashkin has a long history of verbal and physical abuse. Many incidents have been public and witnessed by many. The following incidents are matters of public record:

Attacking Chairman of the Netzigim Yisroel Best in the middle of a Netzigim meeting. Rubashkin was arrested and Best had to be given an Order of Protection against Rubashkin.

Attacking Levi Huebner at a public meeting with Shmira, Hatzoloh and politicians in the Council offices.

Assaulting Eli Slavin, Yitzchok Holtzman and Eli Polterak at various times for disagreeing with him.

Assaulting employees in his textile plant.

A Council employee who refused to be identified reported that Rubashkin often loses his temper and screams at employees. Most of the employees are scared of losing their jobs, so they accept whatever verbal abuse they are given.

The other Council Directors are also victims of Rubashkin's public tirades, according to several witnesses. Both Tzvi Lang and Shmuel Plotkin have been on the receiving end of multiple dressing downs in front of JCC employees. "They take it like scared puppy dogs," reported the employee who refuses to be identified.