Morris E. Zukerman v. United States

Petitioner pleaded guilty to tax offenses for which the Sentencing Guidelines recommended a sentence of 70 to 87 months' imprisonment and a fine of between $25,000 and $250,000. The district court imposed a sentence of 70 months' imprisonment, a longer prison term than the vast majority of tax offenders with the same offense characteristics receive. But then the district court did something truly extraordinary—it imposed a fine of $10 million as well. That is the largest fine imposed on any tax offender since the Sentencing Commission began compiling statistics and likely ever, and it is 40 times the Guidelines maximum. Compared to the fines imposed on tax offenders with similar offense characteristics, the $10 million fine is off the charts. On appeal, the Second Circuit held that the district court had failed to adequately explain its massive upward variance on the fine. But rather than vacating and remanding for resentencing as required by 18 U.S.C. § 3742, the Second Circuit simply ordered the district court to produce a supplemental explanation of its sentence, while holding the appeal in abeyance. Without hearing from the parties, the district court issued a 16-page, supplemental explanation for the fine that added new reasons that neither the Government nor the district court had even alluded to at sentencing and that, in important respects, were factually wrong. The Second Circuit nevertheless found this post hoc explanation sufficient to cure the original procedural error, and it affirmed petitioner's sentence under its longstanding, extremely deferential "shocks-the -conscience" test for appellate review of criminal sentences.