1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-28-1995

United States of America v. Sabarese

Precedential or Non-Precedential:

Docket 95-5160

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Recommended Citation

"United States of America v. Sabarese" (1995). 1995 Decisions. Paper 299.

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1 
2 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 95-5160 

 

UNITED STATES OF AMERICA 

v. 

THEODORE M. SABARESE, 

 Appellant. 

 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Criminal Action No. 93-cr-00389-1) 

 

 

 Argued October 19, 1995 

 Before: SCIRICA, COWEN and ROTH, Circuit Judges

(Opinion Filed November 28, 1995) 

 

Faith S. Hochberg 

United States Attorney 

Allan Tananbaum (Argued) 

Assistant United States Attorney 

Kevin McNulty 

Assistant United States Attorney 

Office of the United States Attorney 

970 Broad Street 

Newark, NJ 07102 

 Attorneys for Appellee 
3 

Nicholas J. Nastasi, Esq. (Argued) 

241 South 7th Street 

Philadelphia, PA 19106 

Richard L., Scheff, Esq. 

Gerard M. McCabe, Esq. 

Montgomery, McCracken, Walker & Rhoads 

Three Parkway - 20th Floor 

Philadelphia, PA 19102 

 Attorneys for Appellant 

 

OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

 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 § 5G1.3 of the Guidelines, read in 

conjunction with 18 U.S.C. § 3564(b), to impose either a 

probationary term or a prison sentence of no longer than 30 days. 
3 

Finding no merit in Sabarese's challenge, we will affirm the New 

Jersey district court's sentence.1

I. 

 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 

 

1 When statutory construction or construction of the 

Sentencing Guidelines is required on appeal, the standard of 

review is plenary. United States v. Holifield, 53 F.3d 11, 12-13 

(3d Cir. 1995); Moody v. Sec. Pac. Business Credit, Inc., 971 

F.2d 1056, 1063 (3d Cir. 1992); United States v. Nottingham, 898 

F.2d 390, 392 (3d Cir. 1990). This court has appellate 

jurisdiction under 28 U.S.C. § 1291 (1988) and 18 U.S.C. § 

3742(a) (1988). 
4 

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 

totalling $439,000. 

II. 

 Sabarese's principal argument is that the language of 

§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, § 5G1.3 provided: 
5 

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 concurrently, except to the extent 

otherwise required by law. 

U.S.S.G. § 5G1.3 (Oct. 1987). Sabarese claims that the district 

court in New Jersey was bound by the finding in the Eastern 

District of Pennsylvania that the fraud schemes were "relevant 

and related." He argues that the term "relevant and related" is 

defined in § 1B1.3 of the Guidelines and should be construed as 

being synonymous with the phrase "a[rising] out of the same 

transactions or occurrences" of § 5G1.3. He then contends that 

the "relevant and related" finding in the Eastern District of 

Pennsylvania, taken together with the language of § 5G1.3, 

mandates a sentence that would run concurrently with Sabarese's 

unexpired Pennsylvania probationary term.2

 Sabarese next turns to 18 U.S.C. § 3564(b) and argues 

that the only type of sentence which can run currently with a 

sentence of probation is a sentence of imprisonment for less than 

thirty days or a sentence of probation. Section 3564(b) provides 

in pertinent part: "A term of probation does not run while the 

 

2 Sabarese also argues that the doctrine of collateral 

estoppel should bar the Government from arguing in a subsequent 

trial that the New Jersey transactions were not relevant and 

related to the Pennsylvania transactions because a prior court 

positively concluded that the transactions were in fact relevant 

and related. Because our holding relies solely on the 

construction of § 3564(b) and Guideline § 5G1.3, we need not 

reach this issue. 
6 

defendant is imprisoned in connection with a conviction for a 

Federal, State, or local crime unless the imprisonment is for a 

period of less than thirty consecutive days." 18 U.S.C. 3564(b). 

Combining this language with his § 5G1.3 argument, Sabarese 

concludes that the district judge was constrained by the 

Guidelines and § 3564(b) to impose a sentence of imprisonment of 

less than thirty days imprisonment or a sentence of a concurrent 

probationary term. We disagree. 

 We hold that the district judge in New Jersey was not 

so confined in imposing sentence by the provisions of § 3564(b). 

This section merely clarifies that a term of probation will run 

only during a concurrent term of probation or during a sentence 

of imprisonment of less that 30 consecutive days. Section 

3564(b) does not require that a subsequently imposed sentence be 

of any certain term or of any particular type, such as a sentence 

of incarceration, of a fine, of community confinement, or of 

probation. There is no reason to believe that either Congress or 

the Sentencing Commission intended § 5G1.3 and § 3564(b) to be 

read in a conjunctive or restrictive manner. Moreover, the use 

of the term "sentence" in § 5G1.3 clearly refers to a sentence of 

imprisonment. Otherwise, the language of § 5G1.3 would make no 

sense. A sentence imposing a fine cannot run concurrently or 

consecutively with a sentence of 12 months imprisonment. 

 Moreover, even if the Pennsylvania and the New Jersey 

offenses were considered to arise from the same transaction or 

occurrence, the Guidelines provision in § 5G1.3 could not trump 

the statutory provision of § 3564(b). See United States v. 
7 

Nottingham, 898 F.2d 390, 393 (3d Cir. 1990). Indeed, even if 

the offenses did arise from the same transaction or occurrence, 

the "except to the extent otherwise required by law" language of 

§ 5G1.3 would incorporate by reference into § 5G1.3 the provision 

of § 3564(b) that a term of probation may not run concurrently 

with a sentence of imprisonment (unless that sentence of 

imprisonment is for less that 30 consecutive days). If the term 

of imprisonment cannot run concurrently with the sentence of 

probation, the terms of imprisonment and of probation will have 

to run consecutively. It is distorted logic to interpret 

§3564(b) to permit a sentence, imposed pursuant to a two-count 

indictment, to limit a sentence, imposed on the basis of a 

thirty-count indictment, simply because the two-count indictment 

was tried first. We reach this conclusion whether the offenses 

are "related" or not.3 

 We conclude, therefore, that the sentence of the 

sixteen month term of imprisonment was properly imposed by the 

district court in New Jersey and that Sabarese must serve that 

term; his sentence to three-years of supervised release will then 

run concurrently with the five-year probationary term imposed in 

the Eastern District of Pennsylvania. 

 

3 Because we find that the provisions of § 3564(b) do not 

place a 30 day limit on the term of imprisonment which can be 

imposed on a defendant who has been sentenced to a prior term of 

probation on a "related" offense, we do not need to go on to 

determine whether "related" as defined in § 1B1.3 of the 

Guidelines is synonymous with the phrase "arose out of the same 

transaction or occurrences" of § 5G1.3. Nor are we required to 

determine if the New Jersey district court was bound by the 

"relatedness" finding of the Pennsylvania court. 
8 

III. 

 For the foregoing reasons, the judgment of sentence 

imposed on Sabarese by the New Jersey district court will be 

affirmed.4

 

4 Because we will affirm Sabarese's New Jersey sentence, 

we will not consider Sabarese's request to assign the case to a 

different judge for resentencing. We note, however, that it is 

the standard practice in this circuit to assign a case on remand 

to the judge who originally heard it. See United States v. 

Baylin, 696 F.2d 1030, 1042 n.30 (3d Cir. 1982).