On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 93-cr-00389-1)
Before: SCIRICA, COWEN and ROTH, Circuit Judges
Theodore Sabarese was sentenced to a term of imprisonment by the United States District Court for the District of New Jersey after being sentenced to a term of probation by the United States District Court for the Eastern District of Pennsylvania. He now challenges the New Jersey prison sentence claiming that, pursuant to the United States Sentencing Guidelines, a subsequent sentence for a related offense must be imposed concurrently. He argues that the New Jersey district court was constrained by Section(s) 5G1.3 of the Guidelines, read in conjunction with 18 U.S.C. Section(s) 3564(b), to impose either a probationary term or a prison sentence of no longer than 30 days. Finding no merit in Sabarese's challenge, we will affirm the New Jersey district court's sentence. *fn1
Sabarese played a key role in a scheme to defraud financial institutions by obtaining loans that exceeded the market value of the boats and airplanes financed. Sabarese was convicted after a trial in Pennsylvania on a two-count indictment charging him with making false statements on loan applications in order to obtain financing for non-existent yachts. After his conviction in Pennsylvania, Sabarese entered a guilty plea on a one-count indictment returned against him in Connecticut. The Connecticut case was transferred to the Eastern District of Pennsylvania where the judge sentenced Sabarese on the two Pennsylvania counts and the one Connecticut count.
Under the Sentencing Guidelines, Sabarese could have been sentenced by the Pennsylvania court to a prison term of 24 to 30 months. The presentence investigation report ("PSI") noted Sabarese's involvement in the "related" New Jersey scheme. The district court in Pennsylvania agreed that the conduct in New Jersey was related, which allowed the judge to elevate the offense conduct level by two points. Upon motion of the Government, however, the judge granted a substantial downward departure and sentenced Sabarese to concurrent five-year probationary terms, conditioned on three months house arrest and a payment of restitution in the amount of $1,170,511.
After he was convicted and sentenced in Pennsylvania, Sabarese pled guilty to the charges brought against him in New Jersey. The New Jersey indictment charged Sabarese with a total of thirty counts: one count of conspiracy, six counts of bank fraud, and twenty-three counts of wire fraud. These counts stemmed from a conspiracy to obtain financing for airplanes. The New Jersey judge concluded that the airplane fraud was not related to the boat fraud in Pennsylvania.
Under the Sentencing Guidelines, Sabarese could have been sentenced to prison for a term of 24 to 30 months for the New Jersey convictions. However, because of Sabarese's substantial assistance, the Government again moved for a downward departure. The New Jersey district court granted the Government's motion, sentencing Sabarese to sixteen months imprisonment, three years supervised release, and restitution totaling $439,000.
Sabarese's principal argument is that the language of Section(s) 5G1.3 of the Guidelines required the district court in New Jersey to impose a sentence that would run concurrently with the sentence imposed in the Eastern District of Pennsylvania. The parties agree that the 1988 version of the Guidelines applies in this case. In 1988, Section(s) 5G1.3 provided:
If at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences. In the latter case, such instant sentences and the unexpired sentences shall run ...