2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-29-2009

USA v. Adam Levinson

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1161

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Adam Levinson" (2009). 2009 Decisions. Paper 357.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/357
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

 

No. 09-1161

 

UNITED STATES OF AMERICA

v.

ADAM LEVINSON,

 Appellant

 

On Appeal from the United States District Court

for the District of Delaware

(D.C. Crim. No. 1-06-cr-00062-001)

District Judge: Hon. Sue L. Robinson

 

Submitted Under Third Circuit LAR 34.1(a)

October 26, 2009

Before: SLOVITER, FUENTES and HARDIMAN, Circuit Judges

(Filed October 29, 2009)

 

OPINION
2

SLOVITER, Circuit Judge.

Appellant Adam Levinson pled guilty to one count of wire fraud, in violation of 18

U.S.C. § 1343, and one count of filing a false tax return, in violation of 26 U.S.C. §

7206(1). The District Court imposed a below-Guidelines sentence of twenty-four months

probation, including six months of home confinement. After the government appealed,

this court concluded that the sentence was procedurally unreasonable, vacated the

sentence, and remanded the case to the District Court for resentencing. See United States

v. Levinson, 543 F.3d 190 (3d Cir. 2008).

On remand, the District Court imposed a new, but still below-Guidelines, sentence

of imprisonment for twelve months and one day. Levinson now appeals, arguing that the

new sentence is also procedurally unreasonable because the District Court allegedly

concluded that it was required to weigh the Sentencing Guidelines more heavily than the

other sentencing factors enumerated by Congress in 18 U.S.C. § 3553(a). 

I.

Levinson was the manager and minority owner of a company that provided filtered

drinking water to residences and businesses. He falsely reported the company’s financial

status and operational performance over a two year period, and his business partner

invested millions of dollars into the company based on those misrepresentations. 

Levinson also hired an outside consultant to hide his machinations, forced his employees

to participate in the fraud, and punished employees who refused to do so. 
3

After his business partner received an anonymous tip regarding his wrongdoing, an

audit uncovered Levinson’s misrepresentations as well as his use of over $177,000 of the

company’s revenue for his personal benefit. Levinson also failed to report his use of

those funds on his tax returns, and the government suffered an aggregate tax loss of about

$44,000.

As noted above, Levinson pled guilty to one count of wire fraud and one count of

filing a false tax return based on the foregoing events. He also settled a civil fraud suit

brought by his business partner by paying $350,000 and relinquishing his ownership

interest in their company. 

 At the first sentencing hearing, the District Court correctly determined that

Levinson faced an advisory Guidelines range of twenty-four to thirty months

imprisonment. The Court also rejected Levinson’s request for a downward departure

under the Sentencing Guidelines based on his allegedly diminished mental capacity. 

After hearing argument from both parties, the District Court imposed a sentence of

twenty-four months probation, including a six month period of home confinement, as well

as 100 hours of community service, about $177,000 in restitution, and a $200 special

assessment. 

The government appealed to this court, and as noted above, we vacated the

sentence and remanded the case because the sentence was procedurally unreasonable. 

First, we concluded that the District Court’s finding that Levinson’s conduct inflicted no
4

harm on the public–a finding upon which the District Court heavily relied in imposing its

below-Guidelines sentence–was clearly erroneous given the tax fraud conviction. 

Second, we concluded that the District Court’s explanation for the variance was

inadequate, particularly in light of that Court’s findings that Levinson was not an atypical

defendant in terms of his personal characteristics or the particulars of his crimes. 

On remand, the District Court reaffirmed its earlier rulings under the Sentencing

Guidelines and again heard argument from the parties regarding an appropriate sentence. 

The government argued for a sentence within the Guidelines range. It contended that

such a sentence was appropriate because of the seriousness of Levinson’s fraud and false

tax filings, the need for deterrence, and the absence of any personal characteristics that

distinguish Levinson from the mill-run white collar defendant. 

On the other hand, Levinson argued that the District Court should again impose a

sentence without a term of imprisonment. According to Levinson, the gravamen of the

case was a private fraud that was amicably settled in the civil lawsuit between Levinson

and his business partner. He also argued that a term of imprisonment would negatively

impact his family, particularly his learning-disabled son, and that his good conduct under

the original sentence supported a below-Guidelines sentence. 

The District Court imposed a below-Guidelines sentence of imprisonment for

twelve months and one day. The Court identified several mitigating factors specific to

Levinson, including his good conduct on probation, the extent to which Levinson and his
 The District Court had jurisdiction pursuant to 18 U.S.C. 1

§ 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). 

5

family had already been punished for his crimes, and his slight risk of recidivism. The

Court also stated that a within-Guidelines sentence was not appropriate in light of the

other sentences issued to white collar criminals within the district and the passage of time.

Nonetheless, the Court concluded that the term of imprisonment ordered was necessary to

reflect the seriousness of the offenses, to promote respect for the law, to provide just

punishment, and to afford adequate deterrence.

1

II.

We review the procedural and substantive reasonableness of a sentence under an

abuse-of-discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)

(en banc). “[A]n abuse of discretion has occurred if a district court based its decision on

a clearly erroneous factual conclusion or an erroneous legal conclusion,” but “absent any

significant procedural error, we must give due deference to the district court’s

determination that the § 3553(a) factors, on a whole, justify the sentence.” Id. at 567-68

(internal quotation and citations omitted).

Levinson argues that the District Court’s new sentence was procedurally

unreasonable because the Court improperly concluded that it was required, as a matter of

law, to weigh the advisory Guidelines sentence more heavily than his individual

characteristics. That is, Levinson argues that the case is analogous to Nelson v. United
Levinson also points to several statements made by the 2

District Court in an order staying his commitment pending appeal

to this court to support his argument that the Court placed improper

weight on the Sentencing Guidelines. Assuming that these

statements, which were made in an order issued after Levinson’s

second sentencing hearing, are relevant to the procedural

reasonableness of the sentence itself, they do not suggest that the

District Court misunderstood its responsibilities under § 3553(a).

6

States, 129 S. Ct. 890 (2009), which reaffirmed that a sentencing judge may not apply a

presumption of reasonableness to sentences recommended by the Guidelines.

However, Levinson misconstrues the District Court’s statements regarding its

analysis of § 3553(a)’s sentencing factors. Importantly, the Court expressly recognized

that it must “consider all of the Section 3553(a) factors in determining a reasonable

sentence.” App. at 41. The record as a whole clearly demonstrates that the Court did so. 

Specifically, it found that several factors supported a sentence below the Guidelines

range, including Levinson’s good conduct while on probation, the extent to which he had

already been punished, his slight risk of recidivism, and the passage of time. The Court

then properly balanced those mitigating circumstances against the remaining § 3553(a)

factors, including but not limited to the advisory Guidelines range, and concluded that the

term of imprisonment imposed was appropriate. In fact, as the government argues, the

very fact that the District Court imposed a sentence substantially below the advisory

Guidelines range undermines Levinson’s claim that the Court afforded improper weight

to the Guidelines. 

2
7

Levinson also argues that the District Court erred because it allegedly stated that

the Sentencing Guidelines fully account for the individual history and characteristics of a

defendant. However, the Court merely stated that the Guidelines reflect “the history and

characteristics of the defendant insofar as the defendant’s criminal history goes,” App. at

41, and they in fact do so in the criminal history category component of the Guidelines

calculation. More importantly, as described above, the District Court clearly considered

Levinson’s individual characteristics and relied on those characteristics to impose a

substantially below-Guidelines sentence.

In sum, the District Court appropriately responded to the procedural errors

identified by this court in Levinson’s original sentencing proceedings and provided a

complete, cogent, and reasonable explanation on the record of its reasons for imposing

the new sentence on remand. 

III.

For the above-stated reasons, we will affirm the sentence.