Third Time A Small Charm for Defendant

United States v. Wittig, ___F.3d___, 2008 WL_____, No. 07-3051 (10th Cir. June 17, 2008)
Defendant’s third sentencing appeal (won the previous 2, and sentence went from 51 to 60 to the current 24 months imprisonment). The 24-month sentence was a variance from 0 to 6 months in a fraud case, but Court says it was procedurally and substantively reasonable under 18 USC 3553. Previous Wittig decisions held certain guideline enhancements were inapplicable, but that does not mean they could not be considered under 3553–perhaps “a fine point,” said the court, but the guidelines can act as guideposts.

What Defendant did win this time is a remand to remove an occupational restriction as a supervised release condition–that he not take any executive or professional position that involves engaging in financial negotiations without court approval. Defendant’s criminal conduct in this case did not involve an abuse of his management position. Moreover, the court did not find that there was a danger of Defendant engaging in similar criminal behavior in the future. It was not imposed for the minimum amount of time necessary. In short, the condition did not comply with 18 USC Sec. 3583(d) and 3563(b).