UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4961
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOEL KATZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CR-01-
374)
Submitted: May 31, 2006 Decided: June 8, 2006
Before WILKINS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric M. Glass, CLARK & GLASS, L.L.P., Rockville, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Joyce K.
McDonald, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joel Katz appeals his sentences for several offenses relating
to a fraudulent telemarketing scheme, as well as for bankruptcy
fraud and being a felon in possession of a firearm. Finding no
error, we affirm.
I.
This appeal is the second arising from the Government’s case
against Katz. At the first sentencing, which predated Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543
U.S. 220 (2005), the district court determined that Katz’s offense
level was 28 and that his criminal history category was III,
yielding a sentencing guideline range of 97-121 months. The
district court imposed a sentence of 97 months imprisonment.
On appeal, we affirmed Katz’s convictions but concluded that
Katz’s sentence had been imposed in violation of Booker. See
United States v. Lugo, 131 Fed. Appx. 901, 908 (4th Cir. 2005) (per
curiam). Prior to vacating the sentence, however, we addressed
several issues regarding the guideline range calculation in light
of “the complexity of this case and in an effort to assist the
district court by narrowing the issues that must be resolved upon
resentencing.” Id. at 908 n.7. We determined that the district
court had not erred in its guidelines application and then vacated
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the sentence on Booker grounds and remanded for resentencing. See
id. at 908-11.
At the resentencing hearing, because Katz presented no new
arguments regarding the appropriate guideline range, the district
court adopted the range that it had previously calculated. The
court then considered whether a sentence in that range served the
factors listed in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
Focusing on the need for the sentence to reflect the seriousness of
Katz’s offense as well as the vulnerability of many of the victims
that he targeted, the district court also noted Katz’s long
“history of willfully-fraudulent activity, willful disobedience to
lawful orders, willful connivance, scheming, [and] theft.” J.A.
285. The court further explicitly considered Katz’s medical
condition and advanced age as well as the fact that codefendant
Mark Cohn received a 57-month sentence. Finally, the court noted
that Katz had achieved some degree of rehabilitation during his
time in prison. In light of all of these factors, the court
imposed a sentence of 72 months imprisonment--25 months below the
low end of the guideline range.
II.
Katz contends that the district court violated our mandate and
the Sixth Amendment by utilizing the facts found during the first
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sentencing to determine Katz’s guideline range on remand. We
disagree.
Katz points us to nothing in our first opinion that required
the district court to revisit guidelines-related issues that it had
already decided. Nor did the Sixth Amendment require that the
issues be revisited. Because the guidelines had the force of law
at the time of the first sentencing, see Booker, 543 U.S. at 233-
34, the factual findings supporting offense level enhancements
served to increase the maximum sentence that the district court was
legally authorized to impose. And, since the district court,
rather than the jury, made those findings increasing the maximum
punishment, Katz’s Sixth Amendment right to a jury trial was
violated at the first sentencing. See id. at 235. In contrast, by
the second sentencing, Booker had already established that the
sentencing guidelines no longer had the force of law, see id. at
245; United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005),
and therefore could not establish the maximum sentence to which a
defendant was subject. Thus, the same enhancements that were
unconstitutional at the first sentencing did not increase the
maximum sentence to which Katz was subject (and therefore were not
unconstitutional) the second time around.* For all of these
*
Katz also argues that the sentence imposed by the district
court was unreasonable because the district court “failed to
articulate the disparity of sentences between co-defendants--
particularly between Mark Cohn and Mr. Katz” and “failed to
consider Mr. Katz’s significant health problems, infirmity and
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reasons, the district court did not err by simply adopting the
guidelines range it had previously calculated. See Hughes, 401
F.3d at 560 & n.19 (vacating sentence when district court correctly
calculated guideline range but committed Sixth Amendment error by
utilizing judicial factfinding to enhance sentence under mandatory
regime, but instructing district court on remand, absent any
changed circumstances, to utilize previously calculated guideline
range to sentence defendant under advisory guidelines regime).
III.
In sum, we affirm Katz’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before us and argument would not aid the
decisional process.
AFFIRMED
age.” Br. of Appellant at 19. We disagree. As we indicated in
our factual summary, the district court explicitly considered each
of these factors during the sentencing hearing.
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