United States v. Hassan Kassar, A/K/A Hassan Alkassar, 47 F.3d 562 (2d Cir. 1995). · Go Syfert
United States v. Hassan Kassar, A/K/A Hassan Alkassar, 47 F.3d 562 (2d Cir. 1995). Cases Citing This Book View Copy Cite
75 citation events (21 in the last 25 years) across 11 distinct courts.
Strongest positive: United States v. Dupas (ca9, 2005-08-16)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Dupas
9th Cir. · 2005 · quote attribution · 1 verbatim quote · confidence high
the statutory language of 3572(d) and 3663(f)(1) identically impose upon the 'court' the responsibility for determining installment pay- ments
discussed Cited as authority (verbatim quote) United States v. Dupas
9th Cir. · 2005 · quote attribution · 1 verbatim quote · confidence high
the statutory language of 3572(d) and 3663(f)(1) identically impose upon the 'court' the responsibility for determining installment pay- ments
discussed Cited as authority (rule) United States v. Bustillo-Bustillo
10th Cir. · 2025 · confidence medium
Id.; accord United States v. Murillo-Salgado, 854 F.3d 407, 418-19 (8th Cir. 2017); United States v. Tinoso, 327 F.3d 864, 866 (9th Cir. 2003); United States v. Xiang, 77 F.3d 771, 773 (4th Cir. 1996); United States v. Quaye, 57 F.3d 447, 449-51 (5th Cir. 1995); United States v. Kassar, 47 F.3d 562, 568-69 (2d Cir. 1995), abrogated on other grounds as recognized by United States v. Meyers, 200 F.3d 715, 722 (10th Cir. 2000); United States v. Sanchez, 923 F.2d 236, 237-38 (1st Cir. 1991).
discussed Cited as authority (rule) United States v. White
2d Cir. · 2009 · confidence medium
“We review the district court’s finding regarding the adequacy of the calculated criminal history for clear error and review the scope of the sentencing court’s departure [under section 4A1.3(a)(l) ] for reasonableness.” United States v. Cox, 299 F.3d 143, 146 (2d Cir.2002) (citing United States v. Kassar, 47 F.3d 562, 566 (2d Cir.1995), abrogated on other grounds, Spencer v. Kemna, 523 U.S. 1 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998)).
discussed Cited as authority (rule) United States v. White
2d Cir. · 2009 · confidence medium
“We review the district court’s 17 finding regarding the adequacy of the calculated criminal history for clear error and review the scope 18 of the sentencing court’s departure [under section 4A1.3(a)(1)] for reasonableness.” United States 19 v. Cox, 299 F.3d 143, 146 (2d Cir. 2002) (citing United States v. Kassar, 47 F.3d 562, 566 (2d 20 Cir.1995), abrogated on other grounds, Spencer v. Kemna, 523 U.S. 1 (1998)). 21 White’s Presentence Investigation Report (“PSR”) determined that under the Guidelines, 20 1 White’s offense level was twenty and his criminal history category V, r…
discussed Cited as authority (rule) United States v. Chusid
2d Cir. · 2008 · confidence medium
As Chusid concedes, the district court “should not uncritically accept a defendant’s representation that he has no assets,” United States v. Kassar, 47 F.3d 562, 567 (2d Cir.1995), abrogated on other grounds by Spencer v. Kemna, 523 U.S. 1 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998); it may draw inferences about a defendant’s assets from circumstantial evidence, United States v. Wong, 40 F.3d 1347, 1383 (2d Cir.1994); and it may rely on “evidence of lucrative illegal activity” to support a finding that a defendant is able to pay a fine, United States v. Orena, 32 F.3d 704, 716 (2d Cir.…
discussed Cited as authority (rule) United States v. Matthew Eugene Dupas
9th Cir. · 2005 · confidence medium
See, e.g., Gunning, 339 F.3d at 949 (“The language of the MVRA is categorical.”); United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995) (“The statutory language of §§ 3572(d) and 3663(f)(1) identically impose upon the ‘court’ the responsibility for determining installment payments[.]”), 8 abrogated on other grounds as stated in United States v. Mercurris, 192 F.3d 290, 294 (2d Cir.1999).
discussed Cited as authority (rule) United States v. Matthew Eugene Dupas
9th Cir. · 2005 · confidence medium
See, e.g., Gunning, 339 F.3d at 949 (“The language of the MVRA is categorical.”); United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995) (“The statutory language of §§ 3572(d) and 3663(f)(1) identically impose upon the ‘court’ the responsibility for determining installment paymentsf.]”), 8 abrogated on other grounds as stated in United States v. Mercurris, 192 F.3d 290, 294 (2d Cir.1999).
examined Cited as authority (rule) United States v. Donovan Gayle (3×) also: Cited "see", Cited "see, e.g."
2d Cir. · 2004 · confidence medium
The government urges that our opinion in United States v. Kassar, 47 F.3d 562, 565-66 (2d Cir.1995), abrogated on other grounds by Spencer v. Kemna, 523 U.S. 1 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998) and United States v. Mercurris, 192 F.3d 290 (2d Cir.1999), justifies a finding of increased likelihood of recidivism based on repeated commission of similar, as opposed to various, criminal offenses.
examined Cited as authority (rule) United States v. Lammers (3×) also: Cited "see"
2d Cir. · 2004 · confidence medium
“While a sentencing court may not base the imposition of a fine on mere suspicion that the defendant has funds, it should not uncritically accept a defendant’s representation that he has no assets.” United States v. Kassar, 47 F.3d 562, 567 (2d Cir.1995), abrogated on other grounds, United States v. Mercurris, 192 F.3d 290, 294 (2d Cir.1999). “[A]n inference that a defendant has funds may be drawn from circumstantial evidence,” United States v. Wong, 40 F.3d 1347, 1383 (2d Cir.1994), and “ ‘evidence of lucrative illegal activity can support a judge’s finding that a defendant is…
cited Cited as authority (rule) United States v. Tarbox
1st Cir. · 2004 · confidence medium
See also United States v. Miller, 77 F.3d 71, 77-78 (4th Cir.1996); United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995).
cited Cited as authority (rule) United States v. George Cox, Also Known as \Albert L. Rand
unknown court · 2002 · confidence medium
United States v. Kassar, 47 F.3d 562, 566 (2d Cir.1995), abrogated on other grounds, Spencer v. Kemna, 523 U.S. 1 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998).
discussed Cited as authority (rule) United States v. Farrah
2d Cir. · 2001 · confidence medium
Although a sentencing court should “pause at each category to consider whether that category adequately reflects the seriousness of the defendant’s record,” United States v. Tropiano, 50 F.3d 157, 162 (2d Cir.1995), we have held that such “a mechanistic, step- by-step procedure is not required” where the district court fully explains the reasons for the departure, United States v. Franklyn, 157 F.3d 90, 100 (2d Cir.1998) (quoting United States v. Kassar, 47 F.3d 562, 566 (2d Cir.1995)); accord United States v. Bridges, 175 F.3d 1062, 1069 (D.C.Cir. 1999).
cited Cited as authority (rule) United States v. Steven J. Kadonsky
3rd Cir. · 2001 · confidence medium
The defendant “may meet that burden by an independent showing or by reference to the PSR.” United States v. Kassar, 47 F.3d 562, 567 (2d Cir.1995).
discussed Cited as authority (rule) United States of America, Appellant-Cross-Appellee v. Ibrahim Ahmad Suleiman, Defendant-Appellee-Cross-Appellant
2d Cir. · 2000 · confidence medium
In support of this proposition, the Court cited United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995), a pr e-Spencer case also relied upon by the Court in Rivera that now, because of Mercurris, 192 F.3d at 294 , is no longer controlling. 2 .
discussed Cited as authority (rule) United States v. Cusack (2×)
S.D.N.Y. · 1999 · confidence medium
See also United States v. Ashley, 141 F.3d 63, 70 (2d Cir.1998) (central ques *509 tion is whether reasons are sufficient to justify magnitude of departure); United States v. Kassar, 47 F.3d at 562, 566 (2d Cir.1995) (“[S]o long as the reasons supporting a departure are fully explained, a mechanistic, step-by-step procedure is not required.”); United States v. Stevens, 985 F.2d 1175, 1185 (2d Cir.1993) (acknowledging different requirements of case law and stating that district court “must state its reasons both for departing and, with some specificity, for the extent of a multi-step CHC …
cited Cited as authority (rule) United States v. Roy Lewis Mercurris, Also Known as Roy Rogers
2d Cir. · 1999 · confidence medium
Accordingly, Rivera and the pr e-Spencer cases relied on in Rivera, see, e.g., United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995), are no longer controlling.
discussed Cited as authority (rule) United States v. Merric
1st Cir. · 1999 · confidence medium
Gibson, of the Eighth Circuit, sitting by designation 1 E.g., United States v. Miller, 77 F.3d 71, 77-78 (4th Cir.1996) (holding that "a district court may not delegate its authority to set the amount and timing of fine payments to the Bureau of Prisons or the probation officer"); United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995) (holding that "the district court may not authorize a probation officer to make post-sentencing decisions as to either the amount of the restitution or the schedule of installment payments ... [because the district court] cannot delegate the judicial functions i…
discussed Cited as authority (rule) United States v. Merric
1st Cir. · 1999 · confidence medium
E.g., United States v. Miller, 77 F.3d 71, 77-78 (4th Cir.1996) (holding that "a district court may not delegate its authority to set the amount and timing of fine payments to the Bureau of Prisons or the probation officer’’); United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995) (holding that "the district court may not authorize a probation officer to make post-sentencing decisions as to either the amount of the restitution or the schedule of installment payments ... [because the district court] cannot delegate the judicial functions inherent in the grant of restitution to the probatio…
discussed Cited as authority (rule) United States v. Octavio Dominguez-Carmona, United States of America v. Jorge Hernandez-Villanueva, United States of America v. Jose Rubio-Loya, United States of America v. Francisco Romo-Medina, United States of America v. Ramon Gutierrez-Treviso, United States of America v. Daniel Medrano-Parra, United States of America v. Orlando Sandoval-Rascon, United States of America v. Anastasio Corral-Gutierrez, United States of America v. Gabriel Durazo-Martinez, United States of America v. Hector Ceballos-Adete (2×)
10th Cir. · 1999 · confidence medium
Cir.1998); United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995); United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.Cir.1994); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.1991). 7 Defendants' contention that the appeals are moot because they have completed the sentences imposed by the district court is incorrect.
examined Cited as authority (rule) United States v. Dominguez-Carmona (4×)
10th Cir. · 1999 · confidence medium
Cir. 1998); United States v. Kassar, 47 F.3d 562, 565 (2d Cir. 1995); United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.
cited Cited as authority (rule) United States v. Soto-Holguin
10th Cir. · 1999 · confidence medium
Cir. 1998); United States v. Kassar, 47 F.3d 562, 565 (2d Cir. 1995); United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.
discussed Cited as authority (rule) United States v. Javier Soto-Holguin (2×)
10th Cir. · 1999 · confidence medium
United States v. Chavez-Palacios, 30 F.3d 1290, 1293 (10th Cir.1994); accord United States v. Cottman, 142 F.3d 160, 165 (3d Cir.1998); United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995); United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.Cir.1994); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.1991).
cited Cited as authority (rule) Manuel MONTANO-FIGUEROA, Petitioner-Appellant, v. Joseph H. CRABTREE, Warden, FCI, Sheridan, Respondent-Appellee
9th Cir. · 1998 · confidence medium
Workman, 110 F.3d at 918-19 ; Miller, 77 F.3d at 78 ; United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995).
discussed Cited as authority (rule) United States v. Robert Franklyn, Also Known as Robert Franklin, and Ralph Gonzalez, Also Known as Raphael Quinones
2d Cir. · 1998 · confidence medium
We cannot say that this view was unjustified.” 981 F.2d at 644 ; see also United States v. Tropiano, 50 F.3d 157, 163 (2d Cir.1995) (horizontal departure in criminal history category, rather than vertical departure in offense level, was appropriate means of incapacitating twenty-five-year-old defendant who district court found to be a “confirmed recidivist”); United States v. Kassar, 47 F.3d 562, 566-67 (2d Cir.1995) (upholding horizontal departure spanning two criminal history categories where district court found that defendant’s “conduct demonstrated a definite propensity to commi…
cited Cited as authority (rule) United States v. James Fields Christopher Crawley
2d Cir. · 1997 · confidence medium
United States v. Kassar, 47 F.3d 562, 567 (2d Cir.1995).
cited Cited as authority (rule) United States v. Qadeer
S.D. Ga. · 1997 · confidence medium
United States v. Sanchez, 923 F.2d 236, 237 (1st Cir.1991); *1577 United States v. Kassar, 47 F.3d 562, 568 (2nd Cir.1995); United States v. Xiang, 77 F.3d 771, 772 (4th Cir.1996).
discussed Cited as authority (rule) United States v. Kenneth Ferguson
6th Cir. · 1996 · confidence medium
See United States v. Mohammad, 53 F.3d 1426, 1438 (7th Cir.1995) (holding that a district court may not delegate to a probation officer the authority to set the amount and schedule for payment of restitution); United States v. Johnson, 48 F.3d 806, 809 (4th Cir.1995) (holding that a district court cannot set a "range" for the amount and schedule of restitution payments and delegate ultimate authority for determining them to a probation officer); United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995) (holding that the statutory language in 18 U.S.C. §§ 3572 (d) and 3663(f)(1) imposes upon th…
discussed Cited as authority (rule) United States v. Macchia (2×) also: Cited "see"
2d Cir. · 1996 · confidence medium
And, Balagula obviously had notice that such a departure was possible: he expressly argued against such departure both in his sentencing letter to the district court, and at the sentencing hearing. 20 Although the district court did not explain why a departure to CHC III (instead of IV) would be insufficient, see United States v. Deutsch, 987 F.2d 878, 886-88 (2d Cir.1993), "so long as the reasons supporting the departure are fully explained, a mechanistic step-by-step procedure is not required," United States v. Kassar, 47 F.3d 562, 566 (2d Cir.1995).
discussed Cited as authority (rule) United States v. Daniel Mortimer
2d Cir. · 1996 · signal: cf. · confidence medium
Cf. United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995) (“The statutory language of [18 U.S.C.] §§ 3572(d) and 3663(f)(1) identically impose upon the ‘court’ the responsibility for determining installment payments; we accordingly hold that the Porter rule applies to fines as well as orders of restitution.”).
discussed Cited as authority (rule) United States v. Luna-Rodriquez
10th Cir. · 1996 · confidence medium
Id.; accord United States v. Xiang, 77 F.3d 771, 773 (4th Cir.1996); United States v. Quaye, 57 F.3d 447, 449-51 (5th Cir.1995); United States v. Kassar, 47 F.3d 562, 568-69 (2d Cir.1995); United States v. Sanchez, 923 F.2d 236, 237-38 (1st Cir.1991). 11 Moreover, if a defendant is deported by the INS, a district court is authorized to impose the further condition of supervised release that the defendant remain outside the United States until termination of his supervised release.
discussed Cited as authority (rule) United States v. Phommachanh
10th Cir. · 1996 · confidence medium
The First, Second, Fourth, and Fifth Circuits have held that a district court does not have such authority under 18 U.S.C. § 3583 (d); see United States v. Xiang, 77 F.3d 771, 772 (4th Cir.1996); United States v. Quaye, 57 F.3d 447, 449-51 (5th Cir.1995); United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995); United States v. Ramirez, 948 F.2d 66, 68 (1st Cir.1991); United States v. Sanchez, 923 F.2d 236, 237 (1st Cir.1991) (per curiam); whereas the Eleventh Circuit has held that it does; see United States v. Chukwura, 5 F.3d 1420, 1423 (11th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 1…
discussed Cited as authority (rule) United States v. Laquer Avellanet
1st Cir. · 1996 · confidence medium
Although Laguer-Avellanet challenges the length of the incarcerative portion of his sentence and not his conviction, we find that his appeal is not moot despite his release from prison because the imposition of the fifteen- month term instead of a twelve-month term could lead to a future "collateral consequence." See U.S.S.G. 4A1.1 (a) & ___ (b) (mandating three criminal history points for prior sentences exceeding one year and one month imprisonment, but only two if for a lesser term (of a least sixty days)); United States v. Kassar, 47 F.3d 562, 565 (2d Cir. 1995) ______________ ______ (find…
discussed Cited as authority (rule) United States v. Laquer Avellanet
1st Cir. · 1996 · confidence medium
This court has now been informed that Laguer-Avellanet was released from custody into a supervised release program on March 29, 1996 (well before the date of oral argument before this court), having served the fifteen-month term Although Laguer-Avellanet challenges the length of the incarcerative portion of his sentence and not his conviction, we find that his appeal is not moot despite his release from prison because the imposition of the fifteen-month term instead of a twelve-month term could lead to a future "collateral consequence." See U.S.S.G. § 4A1.1 (a) & (b) (mandating three criminal…
discussed Cited as authority (rule) United States v. Yitzchok Twersky, A/K/A \Jeff
unknown court · 1996 · confidence medium
Because we have held that the district court may not delegate the responsibility for determining installment payments, see United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995), we remand for resentencing so that the district court may itself set the schedule of payments.
cited Cited as authority (rule) United States v. Kola Noibi
2d Cir. · 1996 · confidence medium
United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995).
discussed Cited "see" United States v. Meyers
10th Cir. · 2000 · signal: see · confidence high
See Mercurris, 192 F.3d at 294 (concluding that cases such as United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995) “are no longer controlling” in light of Spencer); Palomba, 182 F.3d at 1123 (stating that due to Spencer , “[p]rior Ninth Circuit cases reviewing completed sentences because of collateral consequences in future sentencing ... are thus no longer good law” (citation omitted)) Because Meyers has asserted no other collateral consequences to defeat the government’s mootness challenge and because he bears the burden of establishing such consequences, this court concludes th…
cited Cited "see" United States v. Trevor Bacchus and Arundel Thompson
2d Cir. · 1997 · signal: see · confidence high
See United States v. Kassar, 47 F.3d 562, 568-69 (2d Cir.1995).
discussed Cited "see" United States v. Javier Aristizabal Londono, Diego Lopez-Aguilar
2d Cir. · 1996 · signal: see · confidence high
See United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995) (considering challenge to upward departure after sentence served); United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.Cir.1994) (defendant’s sentencing appeal is not moot if there remains the possibility of “collateral legal consequences”).
examined Cited "see" United States v. Mary M. Porter (4×) also: Cited "see, e.g."
2d Cir. · 1996 · signal: see · confidence high
See Kassar, 47 F.3d at 568 (affirming the imposition of a fine and restitution based on evidence of lucrative illegal activity). 25 In this case, (i) Porter illegally obtained assets from the victim of her crime, (ii) she claimed that the assets had been spent, lost, or given to her abusive former spouse, (iii) she presented evidence that, without the illegally obtained assets, she was indigent, and (iv) the district court had doubts about whether the assets had truly been dissipated.
discussed Cited "see" United States v. Miller
4th Cir. · 1996 · signal: see · confidence high
See United States v. Kassar, 47 F.3d 562, 568 (2d Cir. 1995) (holding that a district court may not delegate its responsibility under 18 U.S.C.A. § 3572 for determining installment payments with regard to a fine). _________________________________________________________________ 3 We recognize that the district court did not have the benefit of Johnson when Miller was sentenced. 11 Applying our holding here, we conclude the district court errone- ously delegated its authority to set the amount and timing of Miller's fine and restitution payments to the Bureau of Prisons and/or the pro- bation…
discussed Cited "see" United States v. James Barnett Miller (2×)
4th Cir. · 1996 · signal: see · confidence high
See United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995) (holding that a district court may not delegate its responsibility under 18 U.S.C.A. § 3572 for determining installment payments with regard to a fine). 29 Applying our holding here, we conclude the district court erroneously delegated its authority to set the amount and timing of Miller's fine and restitution payments to the Bureau of Prisons and/or the probation officer, without retaining ultimate authority over such decisions.
discussed Cited "see, e.g." United States v. Alan Simmons
2d Cir. · 2003 · signal: see also · confidence medium
While such an obligation was suggested by United States v. Tropiano, 50 F.Sd 157, 162 (2d Cir.1995); see also United States v. Khalil, 214 F.3d 111, 123 (2d Cir.2000) (stating in dicta that Tropiano required such a sequential method), we have made it clear on other occasions that, as long as the reasons for such a departure are fully explained, “a mechanistic, step-by-step procedure is not required.” United States v. Kassar, 47 F.3d 562, 566 (2d Cir.1995), abrogated on other grounds by Spencer v. Kemna, 523 U.S. 1 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998); see also United States v. Franklyn,…
discussed Cited "see, e.g." United States v. Trevor Livingston Thompson, A/K/A Robert G. Foster, A/K/A Tevor Johnson
2d Cir. · 2000 · signal: see, e.g. · confidence medium
See, e.g., United States v. Kassar, 47 F.3d 562, 564, 567-68 (2d Cir.1995) (upholding sentence consisting in part of 16 months’ imprisonment, $34,600 in restitution, and a $2,000 fine, where indigent defendant would be deported immediately upon release from prison), abrogated on other grounds, Spencer v. Kemna, 523 U.S. 1 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998); see also Malek v. INS, 198 F.3d 1016, 1018 (7th Cir.2000) (upholding sentence of 12 months’ imprisonment and over $80,000 in restitution where deportation proceedings began immediately after conviction); United States v. Wittgenste…
discussed Cited "see, e.g." United States v. William Rivera, AKA Chan, AKA Choukie Miguel Nieves, AKA Charlie, AKA Mike, Christopher Guilfuchi, AKA Shorty
2d Cir. · 1999 · signal: see, e.g. · confidence medium
See, e.g., United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995); United States v. Martin-Trigona, 759 F.2d 1017, 1024 (2d Cir.1985); United States v. Mares-Molina, 913 F.2d 770 , 773 n. 3 (9th Cir.1990).
discussed Cited "see, e.g." Gregory David Werber v. United States
2d Cir. · 1998 · signal: see also · confidence medium
We have previously stated that “collateral consequences alone will ... support appellate jurisdiction over a sentencing issue that may no longer affect the jail time that the defendant may serve.” United States v. Londono, 100 F.3d 236, 242 (2d Cir.1996); see also United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995).
discussed Cited "see, e.g." United States v. Cottman
3rd Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., United States v. Kassar, 47 F.3d 562, 565 (2d Cir. 1995); United States v. Chaves-Palacios, 30 F.3d 1290, 1292-93 (10th Cir. 1994); United States v. Dickey, 924 F.2d 836, 838 (9th Cir. 1991).
discussed Cited "see, e.g." United States v. Stanley Cottman (2×)
3rd Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995); United States v. Chavez-Palacios, 30 F.3d 1290, 1292-93 (10th Cir.1994); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.1991).
discussed Cited "see, e.g." United States v. Cottman
3rd Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., United States v. Kassar, 47 F.3d 562, 565 (2d Cir. 1995); United States v. Chaves-Palacios, 30 F.3d 1290, 1292-93 (10th Cir. 1994); United States v. Dickey, 924 F.2d 836, 838 (9th Cir. 1991).
discussed Cited "see, e.g." United States v. Golino
E.D.N.Y · 1997 · signal: see also · confidence medium
Porter, 41 F.3d 68, 71 (2d Cir.1994) (no delegation to the Probation Department); United States v. Mortimer, 94 F.3d 89, 90 (2d Cir.1996) (no delegation to the Bureau of Prisons’ Inmate Financial Responsibility Program); see also, United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995) (Porter rule applies to fines; court may not delegate to Probation Department the determination of the schedule of installment payments for a fine).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Hassan KASSAR, A/K/A Hassan Alkassar, Defendant-Appellant
261, Docket 94-1084.
Court of Appeals for the Second Circuit.
Feb 13, 1995.
47 F.3d 562
Marjorie M. Smith, New York City (The Legal Aid Soc., Federal Defender Div., Appeals Bureau, of counsel), for defendant-appellant., Paul T. Weinstein, Asst. U.S. Atty. for the E.D.N.Y., Brooklyn, N.Y. (Zachary W. Carter, U.S. Atty. for the E.D.N.Y., David C. James, Asst. U.S. Atty. for the E.D.N.Y., of counsel), for appellee.
Meskill, Mahoney, McLaughlin.
Cited by 58 opinions  |  Published
MAHONEY, Circuit Judge:

Defendant-appellant Hassan Kassar appeals from a judgment entered February 14, 1994 in the United States District Court for[*564] the Eastern District of New York, Reena Raggi, Judge, that convicted Kassar, following his guilty plea, of the use of unauthorized access devices in violation of 18 U.S.C. § 1029, and sentenced him to a prison term of sixteen months, three years of supervised release, $34,600 in restitution, a $2,000 fine, and the mandatory special assessment. The court also ordered that at the completion of his sentence, Kassar be delivered to the custody of the Immigration and Naturalization Service (the “INS”), that he be deported, and that he not reenter the country illegally.

On appeal, Kassar challenges: (1) the district court’s departure from a Criminal History Category (“CHC”) level I to level III on the basis of Kassar’s previous conviction for commission of the same crime in the United States District Court for the Eastern District of Tennessee; (2) the imposition of a fine and restitution in spite of a finding of indigence in Kassar’s Presentence Investigation Report (“PSR”); and (3) the order that Kassar be deported.

For the reasons that follow, we affirm the judgment of the district court in all respects, except that we vacate and remand regarding the sentencing provision that delegated the determination of installments for the payment of the fine and restitution to the probation department.

Background

Kassar, a citizen of Syria and a nonresident alien, acted as an intermediary to place three-way calls among Israel, the United States, and Arab countries, using stolen credit card numbers. Kassar’s customers placed calls to him at his Brooklyn apartment from Israel’s Gaza Strip, and he forwarded these calls to their destinations in Arab countries. The value of the calls placed between June 3 and June 18, 1993 totalled $34,600. Kassar pled guilty to the charge of using unauthorized access devices with respect to these calls in violation of 18 U.S.C. § 1029(a)(2).

In March 1993, Kassar had pled guilty to violating the same statutory provision in the United States District Court for the Eastern District of Tennessee. As in New York, Kassar had used stolen credit cards to place long distance telephone calls. Kassar waived his right to have a PSR prepared in the Tennessee case, and the court sentenced him immediately after accepting his guilty plea. Finding that a total offense level of eleven applied (requiring a sentence of eight to twelve months), the court departed downward, sentencing Kassar to thirty-six days time served and restitution in the amount of $66,122.68 (for which he was jointly and severally hable with a codefendant), on the understanding that Kassar would face deportation proceedings immediately. Within two weeks, however, Kassar gained his release from the INS by posting a $25,000 bond, and he has failed to pay the restitution ordered in that case. A deportation hearing has not yet taken place.

In sentencing Kassar in this case, the district court accepted the PSR’s calculation of an offense level of ten. The court did not agree, however, with the PSR’s recommendation that a CHC of I should apply. The court noted that Kassar’s low CHC resulted from the Tennessee court’s downward departure, which was granted on the “erroneous assumption” that Kassar would be deported. Calculating Kassar’s CHC on the basis of the sentence that he would have received had the Tennessee court not departed downward, and considering that the New York crime was committed during what should have been a term of supervised release, the court determined that Kassar should receive four CHC “points” under USSG § 4A1.1, resulting in a CHC of III. Accordingly, “looking at [Kas-sar’s] real history,” the court departed upward to CHC III.

The court also stated:

Separate and apart from that, there would be grounds for upward departure because of the similarity of the two crimes. That is something not taken into account with the single point, just as the guideline commentary indicates that it is appropriate sometimes when the same kind of crime is committed over and over again, for the court to consider propensity.
I would find that an independent grounds for upward departure. As I said, I might even consider it grounds for further departure.
[*565] But I want the record to be clear that on either basis, either the more accurate view of the simple felony history in Tennessee, or the fact that the two crimes are so similar, I would depart up to level three.

The court then sentenced Kassar to sixteen months imprisonment, the high end of the applicable ten to sixteen month range, and a three year term of supervised release.

Turning to whether a fine and order of restitution should be imposed, the court disregarded the PSR’s determination that Kas-sar was indigent and accordingly unable to pay a fine, observing that:

I have no idea where your assets are. But I have every reason to think from the scheme that you conducted that you profited from it.
... I imposed the fine and the order of restitution — because I simply don’t believe your statements that you don’t have any money. You may not have any money in this country. But I do not believe that you were engaged in these schemes without profiting from them.

The court imposed a fine of $2,000 and restitution to AT & T in the amount of $34,600, both payable pursuant to a schedule “to be set by the probation department.”

Finally, the judgment provided that following his sentence, Kassar “is to be delivered to the [INS] for deportation, is to be deported by the [INS], and ... may not re-enter the United States illegally.”

This appeal followed. After oral argument at this appeal, we were advised by the government by letter dated October 11, 1994 that Kassar had completed his term of imprisonment on September 28, 1994, had been released to the custody of the INS for deportation proceedings, and had thereafter been released on a $15,000 bond posted by a surety-

Discussion

A. The Upward Departure in Criminal History Category.

Counsel have raised the issue whether Kassar’s challenge to his term of imprisonment may be moot in light of his recent completion of that sentence. Kassar contends that his challenge is not moot, because his CHC calculation would be affected if he is ever convicted of another crime. See USSG § 4Al.l(a) & (b) (imposing three CHC points for a prior sentence of more than thirteen months and two CHC points for a prior sentence of thirteen months or less but at least sixty days). We agree with Kassar that because of this collateral consequence, his challenge is not moot. See United States v. Chavez-Palacios, 30 F.3d 1290, 1293 (10th Cir.1994); United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.Cir.1994); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.), cert. denied, 502 U.S. 943, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991). [1]

USSG § 4A1.3 permits departure from a CHC if “reliable information indicates that the [CHC] does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” In support of his contention that the district court erroneously departed upward from CHC I to III, Kassar first argues that had the Tennessee court not departed from a base offense level of eleven on the basis of his impending deportation, it might have done so by concluding that Kassar played a minor or minimal role in the Tennessee offense. Accordingly, he contends, Judge Raggi improperly used a base offense level of eleven in ascertaining what the Tennessee sentence should have been. The government responds that there is no basis to conclude that the Tennessee court deemed Kassar to be a minor or mini[*566] mal participant in the Tennessee violation, [2] and notes that the parties agreed at the Tennessee sentencing hearing that a base offense level of eleven applied.

Because the Tennessee sentencing hearing transcript is so brief, it is reasonable to conclude that the court’s sentencing decision had been discussed with the parties off the record prior to the actual sentencing. Given that Kassar knew that the court would depart downward and sentence him to time served, he presumably had no reason to object to a finding that the appropriate base offense level was eleven, or to raise the issue whether he might qualify for relief as a minor or minimal participant. On the other hand, the offense conduct in both New York and Tennessee resulted from an identical modus operandi, on the basis of which the PSR in this case accorded Kassar a two-level enhancement for more than minimal planning, an enhancement that Kassar has conceded to be applicable to his Tennessee offense. See supra note 2. It is difficult to square this finding and concession with a claim of a minor or minimal role in the Tennessee offense.

In any event, Judge Raggi provided a sound alternative rationale in support of the upward departure. We review a district court’s finding that a CHC does not adequately reflect the seriousness of a defendant’s criminal history for clear error, see United States v. Sturgis, 869 F.2d 54, 57 (2d Cir.1989), and the scope oí the upward departure for reasonableness. See United States v. Thomas, 6 F.3d 960, 967 (2d Cir.1993). Given that Kassar committed the identical crime in New York shortly after committing that crime in Tennessee, the district court was clearly entitled to conclude that he was a recidivist whose low CHC did not reflect his propensity to continue on a course of criminal activity.

With respect to the scope of the departure, Kassar contends that the court impermissibly “leap-frogged” from CHC I to III, rather than consider a departure to CHC II. He notes this circuit’s rule that district courts must proceed sequentially, or step-by-step, through the CHC levels when making a mul-ti-level departure, explaining why each level is rejected. See United States v. Deutsch, 987 F.2d 878, 886-88 (2d Cir.1993); United States v. Stevens, 985 F.2d 1175, 1185 (2d Cir.1993). More recently, however, we have called this rule into question, noting that so long as the reasons supporting a departure are fully explained, a mechanistic step-by-step procedure is not required. See United States v. Mora, 22 F.3d 409, 413 (2d Cir.1994); United States v. Harris, 13 F.3d 555, 558-59 (2d Cir.1994); Thomas, 6 F.3d at 964-67.

The district court’s explanation in this case certainly informed Kassar of the reason for his sentence and provided an ample basis on which we can review the departure. While the district court did not explicitly state why CHC II was rejected, the reasons were implicit under both approaches taken by the court in reaching CHC III. With respect to the court’s primary rationale, the CHC was justified with reference to the criminal history points that underlie it. By viewing the Tennessee sentence as it should have been, the court determined precisely what the New York sentence should be. CHC II was rejected because the proper number of points resulted in CHC III.

Under the alternative rationale, the court made clear its determination that Kassar’s conduct demonstrated a definite propensity to commit the crime for which he had previously been convicted. The court noted his refusal to “get it in terms of what [brought him] before the courts of the United States,” calling him a “repeated thief’ whose en[*567] hanced sentence was still “inadequate to deal with the severity of [his] conduct.” Moreover, the court stated its “very strong[]” view that Kassar’s criminal history category should be enhanced because he “showed no respect for the laws of this country, and indeed, has flouted them, despite being given a benefit once on the exact same criminal conduct,” so that an unenhanced sentence would “violate what the guidelines are really about, which is accurately measuring this conduct as compared with others who may be similarly situated.”

Because the district court specifically, and indeed emphatically, explained the basis for its departure to CHC III, its rationale for skipping CHC II is readily apparent. Under these circumstances, the district court’s proceeding directly from CHC I to III did not constitute error. Moreover, we share the district court’s indignation that Kassar committed the exact same crime of which he had been so recently convicted, and hold that the scope of the upward departure was reasonable.

B. The Fine and Restitution.

Kassar argues that the district court improperly imposed a fine and ordered restitution. With respect to the fine, USSG § 5E 1.2(a) provides that: “The court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” The defendant bears the burden of showing that he cannot pay a fine, but may meet that burden by an independent showing or by reference to the PSR. United States v. Rivera, 22 F.3d 430, 440 (2d Cir.1994). While a sentencing court may not base the imposition of a fine on mere suspicion that the defendant has funds, it should not uncritically accept a defendant’s representation that he has no assets. Id. Moreover, “an inference that a defendant has funds may be drawn from circumstantial evidence.” United States v. Wong, 40 F.3d 1347, 1383 (2d Cir.1994). Specifically, “evidence of lucrative illegal activity can support a judge’s finding that a defendant is able to pay a fine levied against him.” United States v. Orena, 32 F.3d 704, 716 (2d Cir.1994) (citing United States v. Amato, 15 F.3d 230, 237 (2d Cir.1994)).

In this case, the PSR determined that Kassar “appeared] to be unable” to pay a fine because of lack of assets and large debts, including the Tennessee order of restitution. In addition, Kassar is represented by assigned counsel, a “ ‘significant indicator[ ] of present inability to pay any fine.’ ” Stevens, 985 F.2d at 1188 (quoting USSG § 5E1.2, comment, (n. 3)) (alteration in Stevens). Kassar contends that he has thus established his indigence by reference to the PSR. He also argues that his sentence was based upon impermissible speculation, invoking Stevens. In Stevens, the district court stated that it was “ ‘willing to bet if [the probation officers] scratch hard enough, they will find [that the defendant] ... does have funds,’ ” 985 F.2d at 1188 (quoting transcript of district court proceedings) (ellipsis in Stevens, other alterations added), and noted that drug dealers generally make and hide large amounts of money. Id. We reversed and remanded for resentencing because a court may not simply presume that funds are available to pay a fine. Id.

The government argues that in this case, unlike Stevens, the PSR contains sufficient evidence for the district court to have concluded that Kassar profited from his fraudulent scheme: Kassar rented at least two apartments for this operation and obtained telephone service in his own name and under an alias; he received approximately $1.00 to $4.00 per minute for each fraudulent call that he placed; and at least $9,000 of the proceeds, representing his share, were wired to Kassar in New York from the Middle East. In addition, Kassar was able to post a $25,-000 bond to secure his release from the INS after his conviction in Tennessee, although he has failed to pay the restitution ordered in Tennessee.

Judge Raggi articulated the basis for imposing a fine and restitution by stating: “I imposed the fine and the order of restitution — because I simply don’t believe your statements that you don’t have any money. You may not have any money in this country. But I do not believe that you were engaged[*568] in these schemes without profiting from them.”

It would have been preferable for the court to have elaborated somewhat upon the information in the PSR that supported this evaluation. Unlike Stevens, however, the district court did not engage in general speculation about the profitability of drug dealing to support a $2,000,000 fine, but rather made specific reference to the “schemes” that Kas-sar conducted, concerning whose profitability there was ample information before the court, to support the imposition of a modest $2,000.00 fine. Bearing in mind that circumstantial evidence may support an inference that a defendant has funds, Wong, 40 F.3d at 1383, and specifically that evidence of “lucrative illegal activity” may provide such support, Orena, 32 F.3d at 716, we affirm the imposition of a fine upon Kassar.

Turning to the order of restitution, USSG § 5E1.1 incorporates 18 U.S.C. § 3664(a), which requires the court to consider, when deciding whether to impose restitution: the victim’s loss, the defendant’s financial resources, the financial needs and earning ability of the defendant and his dependents, and any other factors deemed appropriate. Further, as we stated in United States v. Broyde, 22 F.3d 441 (2d Cir.1994): “ ‘Although the court need not set forth its findings in detail, the record must demonstrate that the court has considered these factors in ordering restitution.’ ” Id. at 442 (quoting United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993)).

Kassar contends that the district court did not consider his financial resources and erred in supposing that he has assets. The district court’s discussion of Kassar’s assets, however, indicates that it considered his resources. Moreover, as discussed above, we believe that the district court was entitled to draw an inference that Kassar has assets, based upon the available circumstantial evidence.

Moreover, while § 5E 1.2(a) states that a fine shall be imposed except where the defendant cannot pay, § 3664(a) contains no similar bar to imposing restitution. Rather, the defendant’s resources are only one factor that must be considered. See United States v. Atkinson, 788 F.2d 900, 902 (2d Cir.1986) (“Like other aspects of sentencing, restitution orders require an exercise of discretion ..., and this requires a delicate balancing of diverse, sometimes incomparable factors, some of which not only lack certainty but may indeed be based on mere probabilities, expectations, guesswork, even a ‘hunch.’”). Indeed, a district court must have a certain amount of leeway when imposing restitution because of the victim’s interests. We accordingly affirm the order of restitution.

Although we affirm the amount of the fine and restitution, we remand for resen-tencing because the district court impermis-sibly delegated to the probation department the determination of the schedule of installment payments for the fine and restitution. While an installment schedule may be set, see 18 U.S.C. §§ 3572(d), 3663(f)(1) (permitting court to provide for payment in installments of fine and restitution, respectively), we recently held with respect to restitution, subsequent to the entry of the judgment on appeal in this case, that the district court may not “authoriz[e] a probation officer to make post-sentencing decisions as to either the amount of the restitution or the schedule of installment payments, ... [because the district court] cannot delegate the judicial functions inherent in the grant of restitution to the probation department.” United States v. Porter, 41 F.3d 68, 71 (2d Cir.1994) (citations omitted). The statutory language of §§ 3572(d) and 3663(f)(1) identically impose upon the “court” the responsibility for determining installment payments; we accordingly hold that the Porter rule applies to fines as well as orders of restitution.

C. The Deportation Order.

Kassar correctly contends that while the district court was entitled to order him into the custody of the INS, it lacked authority to order the INS to deport him; the decision to deport rests in the sound discretion of the Attorney General. 8 U.S.C. § 1251; United States v. Olvera, 954 F.2d 788, 793 (2d Cir.), cert. denied, — U.S.-, 112 S.Ct. 3011, 120 L.Ed.2d 885 (1992). Because such an order is simply not binding, however, the error is harmless; the order is[*569] deemed a recommendation. Olvera, 954 F.2d at 793-94.

Conclusion

We affirm the judgment of the district court in all respects, except that we vacate and remand regarding the sentencing provision that delegated the determination of installments for the payment of the fine and restitution to the probation department.

1

. Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), is not to the contrary. This pre-Guidelines case held only that defendants who had completed their terms of state court imprisonment for parole violations could not mount a habeas challenge to that imprisonment when they did not contest the occurrence of the parole violations that resulted in imprisonment, and any future collateral consequences were conjectural and depended primarily upon the occurrence of the violations rather than upon the consequent imprisonment. See id. at 630-34, 102 S.Ct. at 1326-28.

2

. Kassar's main appeal brief asserts that ''Kas-sar’s role in the Tennessee offense was concededly minor if not minimal," see USSG § 3B1.2, and supports this claim by cross-referencing to an earlier footnote in that brief. The footnote, however, is a reconstruction of the computation of the Tennessee offense level of eleven that makes no reference to a minor or minimal role for Kassar, and acknowledges that he was probably accorded a two-level increase in offense level for more than minimal planning pursuant to USSG § 2B1.1(b)(5)(A). Kassar pointed at oral argument to a comment by Judge Raggi at sentencing which, read in context, establishes only that she accepted arguendo Kassar’s proffer that he played a minor role in the Tennessee criminal activity.