United States v. Edwin A. Kane, 452 F.3d 140, 2d Cir. (2006)

452 F.
3d 140
UNITED STATES of America, Appellee,

v.
Edwin A. KANE, Defendant-Appellant.
Docket No. 05-2714-cr.
United States Court of Appeals, Second Circuit.

Argued: May 4, 2006.
Decided: June 19, 2006.
June 19, 2006.
Mark D. Hosken, Assistant Federal Defender for the Western District of

New York (Jay S. Ovsiovitch, of counsel), Rochester, NY, for DefendantAppellant.
Stephan J. Baczynski, Assistant United States Attorney (Kathleen M.
Mehltretter, Acting United States Attorney for the Western District of
New York, on the brief), Buffalo, NY, for Appellee.
Before MESKILL, STRAUB, and KATZMANN, Circuit Judges.
PER CURIAM.
Defendant-Appellant Edwin A. Kane appeals from a judgment entered in the

District Court for the Western District of New York sentencing him principally
to 24 months' imprisonment upon a plea of guilty to one count of equity
skimming in violation of 12 U.S.C. 1709-2. He contends that the District
Court violated his First Amendment rights by weighing his prior published
writings against the mitigating character evidence he offered at sentencing. He
further maintains that his below-Guidelines sentence is unreasonable.
For seven years, Kane defrauded the Federal Housing Administration ("FHA")
and the United States Department of Housing and Urban Development
("HUD"). He purchased homes carrying mortgages guaranteed by FHA or
HUD, rented those properties to unsuspecting tenants, and then fraudulently
transferred the properties, along with the mortgage obligations, to third parties
via fabricated warranty assumption deeds. After the false transfers, Kane
continued to collect rent while the third parties defaulted on the mortgage
obligations, causing HUD or FHA to foreclose on the homes and throwing into
chaos the existing leaseholds. Through his scheme, Kane caused FHA and
HUD to lose at least $700,000.
3
Although the Sentencing Guidelines established an advisory range of 30 to 37

months' imprisonment, Kane requested a probationary sentence. In support of
his request, he submitted more than 35 letters from family, friends, and
acquaintances attesting to the many aspects of his good character, including
that he was a "fair and honest man, true to his word." Those letters, defense
counsel asserted in Kane's sentencing submission, "provide an informative
answer to the question: Who is Andy Kane?" Defense counsel also took the
opportunity to answer the question himself, describing Kane as "a good friend"
given to "random acts of kindness," who "accepted full responsibility for his
fraudulent actions" and is "truly sorry for his actions." Kane further justified
his request for probation by citing his need to care for his ailing wife, his own
imperfect health, his age, and the corresponding slim chance that he would
recidivate.
In response, the government submitted excerpts of books that Kane had

authored. In those excerpts, Kane penned how-to advice on topics ranging from
wife "training" to illegal real estate transactions. Specifically, he described how
to convert "single-family dwellings into rooming houses without it being
legal," a scheme that generated enough cash to fund his annual purchase of a
new Cadillac Eldorado. He also gave advice on how to manipulate financial
records so as to appear to qualify for subsidized housing, described running a
fraudulent mail order scheme in which he "offered a service that didn't exist,"
provided tips on how to avoid a sexual harassment suit while displaying
photographs of topless women in the office, and in a work titled "Mastering the
Art of Male Supremacy: Training Techniques for the Home Front," set forth his
philosophy of "training a wife," which eschewed "real violence" but endorsed
the use of "a rolled up newspaper on the rump once in a while. . . ."
The District Court acknowledged that the numerous character reference letters
portrayed Kane's "acts of kindness[ and] acts of responsibility" and weighed
those letters against Kane's writings. Ultimately, the Court concluded that
Kane's published advice on running real estate and mail order schemes undercut
his professed honesty, and his guide to "Mastering the Art of Male Supremacy"
tempered the sincerity of his spousal devotion. For these and other reasons, the
District Court rejected Kane's request for a probationary sentence. However,
the Court imposed a non-Guidelines sentence of 24 months' imprisonment, six
months below the bottom of the advisory range.
On appeal, Kane contends that the District Court violated the First Amendment
by considering his expressive activity as part of its sentencing calculus, and that
even in the absence of a constitutional violation, his sentence is unreasonable.
The First Amendment "does not erect a per se barrier" to the admission at
sentencing of evidence regarding the defendant's beliefs or associational
activity. Dawson v. Delaware, 503 U.S. 159, 165, 112 S.Ct. 1093, 117 L.Ed.2d
309 (1992). A sentencing court may consider such evidence so long as it is
"relevant to the issues involved" in the sentencing proceeding. Id. at 164, 112
S.Ct. 1093; see also United States v. Simkanin, 420 F.3d 397, 418 (5th
Cir.2005) (holding that court properly considered defendant's belief that the tax
laws are invalid in sentencing defendant for income tax evasion); Kapadia v.
Tally, 229 F.3d 641, 644-48 (7th Cir.2000) (holding that court properly
considered defendant's anti-Semitic beliefs in sentencing defendant for attack
on a Jewish community center); United States v. Brown, 479 F.2d 1170, 117475 (2d Cir.1973) (holding that court properly considered defendant's "expressed
sympathy with the political and social views of the Black Panther Party" as
relevant to whether defendant posed a future threat). Among other possible
uses, a particular piece of evidence may be relevant to show motive, see
Barclay v. Florida, 463 U.S. 939, 948-49, 103 S.Ct. 3418, 77 L.Ed.2d 1134
(1983) (plurality opinion), analyze a statutory aggravating factor, see id. at 949
& n. 7, 103 S.Ct. 3418, illustrate future dangerousness or potential recidivism,
see, e.g., United States v. Tampico, 297 F.3d 396, 402-03 (5th Cir. 2002), or
rebut mitigating evidence that the defendant proffers, see generally Dawson,
503 U.S. at 167, 112 S.Ct. 1093. Although a given piece of evidence may be
relevant in many ways, the government may not offer proof of a defendant's
"abstract beliefs" merely for the purpose of demonstrating that those beliefs,
and by extension the defendant, are "morally reprehensible." Id. at 166-67, 112
S.Ct. 1093.
Here, the District Court considered Kane's writings only to the extent that they
rebutted his mitigating evidence. The First Amendment does not bar the
government from putting the lie to a defendant's proof at sentencing. See
generally id. at 167, 112 S.Ct. 1093 ("But just as the defendant has the right to
introduce any sort of relevant mitigating evidence, the State is entitled to rebut
that evidence with proof of its own."). We note, importantly, that the Court
considered only evidence that refuted Kane's claims of honesty, charity, and
tender devotion to his wife. By confining its analysis to the particular character
issues that Kane raised, the Court avoided considering Kane's abstract beliefs
for the irrelevant and impermissible purpose of showing general moral
reprehensibility. Cf. id. at 166-67, 112 S.Ct. 1093. We also note that because
much of Kane's writings concerned illegal real estate schemes, which related
directly to his offense of conviction, the writings also "may indicate the
increased likelihood of recidivism or a lack of recognition of the gravity of the
wrong. . . ." Tampico, 297 F.3d at 403.
9
Kane also claims that the books constituted a series of jokes and were meant
only for entertainment purposes. The District Court determined otherwise, and
we see no clear error in that finding. See United States v. Snype, 441 F.3d 119,
145 (2d Cir.2006) (noting that "we review a district court's findings of fact as
they pertain to sentenc[ing] only for clear error"). Indeed, not every outlandish
statement is jest; the fact that Kane wrote about real estate schemes and then
actually executed one illustrates that his books reflect his reality. Accordingly,
the District Court's consideration of Kane's writings did not violate the First
Amendment.1
10
Kane next contends that his sentence is unreasonable. The government urges
that we lack jurisdiction to consider the reasonableness of Kane's sentence, and
that if we possess such jurisdiction, Kane's below-Guidelines sentence is a
reasonable one. We recently rejected the government's jurisdictional argument
in United States v. Fernandez, 443 F.3d 19, 25-26 (2d Cir.2006). Undeterred,
the government contends that Fernandez is inconsistent with an earlier decision
of this Court, United States v. Colon, 884 F.2d 1550 (2d Cir.1989), and entreats
this panel to abide by Colon. We cannot do so.
11
In Colon, we held that "a decision not to depart from the applicable Guidelines
range is not appealable." 884 F.2d at 1552. We premised our holding partly on
the conclusion that 18 U.S.C. 3742(a)(1), which authorizes a defendant to
appeal a sentence "imposed in violation of law," could not be read to
encompass a defendant's appeal of a within-Guidelines sentence "based on a
claim that [his] sentence violates 18 U.S.C. 3553(a)." Colon, 884 F.2d at
1553. Assuming that Colon addresses the issue raised by the government in this
casethat we lack jurisdiction to consider a defendant's appeal of his belowGuidelines sentence on the ground that the term of imprisonment is
unreasonablewe hold that this narrow interpretation of 3742(a)(1) is
irreconcilable with the Supreme Court's mandate that "the [Sentencing Reform]
Act continues to provide for appeals from sentencing decisions (irrespective of
whether the trial judge sentences within or outside the Guidelines range . . . )."
United States v. Booker, 543 U.S. 220, 260, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005); see also Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 327
(2d Cir.2004) ("[O]ne panel of this Court cannot overrule a prior decision of
another panel unless there has been an intervening Supreme Court decision that
casts doubt on our controlling precedent." (internal quotation marks omitted)).
12
As we reaffirm our recent conclusion in Fernandez against the government's

reliance on Colon, we note that our position is consistent with every court of
appeals to have considered the question. 2 See, e.g., United States v. JimenezBeltre, 440 F.3d 514, 517 (1st Cir.2006) (in banc); United States v. Cooper,
437 F.3d 324, 328 & n. 5 (3d Cir.2006); United States v. Montes-Pineda, 445
F.3d 375, 377-78 (4th Cir. 2006); United States v. Mickelson, 433 F.3d 1050,
1052-55 (8th Cir.2006); United States v. Martinez, 434 F.3d 1318, 1321-22
(11th Cir.2006). Further, we join at least two of our sister circuits in
recognizing that Booker has abrogated or rendered inapplicable prior cases,
such as Colon, that adopted a narrow interpretation of 3742(a)(1). See United
States v. Plouffe, 445 F.3d 1126, 1127-29 (9th Cir.2006); Cooper, 437 F.3d at
327-28.
13
Having rejected the government's jurisdictional argument based on Colon, we

now must determine whether the sentence is reasonable. In Fernandez, we
explained that "[r]easonableness review does not entail the substitution of our
judgment for that of the sentencing judge. Rather, the standard is akin to abuse
of discretion." Fernandez, 443 F.3d at 27. We ask only "whether the sentencing
judge exceeded the bounds of allowable discretion, committed an error of law
in the course of exercising discretion, or made a clearly erroneous finding of
fact." Id. (internal quotations marks omitted and alterations incorporated).
14
The District Court committed no such error here. The Judge considered the
relevant sentencing factors in careful and reasoned fashion, premised his
conclusions on a sound view of the facts, and understood the applicable legal
principles. Kane merely renews the arguments he advanced belowhis age,
poor health, and history of good worksand asks us to substitute our judgment
for that of the District Court, which, of course, we cannot do. See id.
15
For the reasons set forth above, we AFFIRM the judgment of the District
Court.
Notes:
1
Because we find no error, we need not decide whether Kane preserved his
objection below, and if so, whether we should employ the harmless error
standard of reviewSee Dawson, 503 U.S. at 169, 112 S.Ct. 1093 (Blackmun, J.,
concurring) (noting that "there is a substantial argument that harmless-error
analysis is not appropriate for the type of error before us today" and the
majority opinion does not conclusively resolve the issue).
We note that inFernandez and the numerous opinions penned by our sister
circuits, the question presented was slightly different. In those cases, the
question was whether there existed appellate court jurisdiction to review a
within-Guidelines sentence for reasonableness. Although in this case Kane
appeals from a below-Guidelines sentence, we find the distinction to be
immaterial, particularly in light of Booker's parenthetical that the Sentencing
Reform Act provides for appellate review "irrespective of whether the trial
judge sentences within or outside the Guidelines range. . . ." Booker, 543 U.S.
at 260, 125 S.Ct. 738.

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452 F.

UNITED STATES of America, Appellee,

United States Court of Appeals, Second Circuit.

Mark D. Hosken, Assistant Federal Defender for the Western District of

Defendant-Appellant Edwin A. Kane appeals from a judgment entered in the

Although the Sentencing Guidelines established an advisory range of 30 to 37

In response, the government submitted excerpts of books that Kane had

As we reaffirm our recent conclusion in Fernandez against the government's

Having rejected the government's jurisdictional argument based on Colon, we

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