UNITED STATES v. CONSTANTINE AKA AKA AKA AKA AKA AKA AKA (2018)

SUMMARY ORDER

On November 22, 2017, Defendant-Appellant Bobbi A. Constantine pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. Constantine appeals from the January 4, 2018 judgment of the U.S. District Court for the Northern District of New York (D'Agostino, J.) sentencing her to thirty-seven months’ imprisonment and ordering her to pay restitution totaling $72,589.96, following her guilty plea. On appeal, Constantine argues that the District Court committed procedural error in its loss calculation and criminal history category assessment for United States Sentencing Guidelines (“Guidelines”) purposes. Constantine also appeals the District Court's restitution order.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, to which we refer only as necessary to explain our decision to remand to the District Court in accordance with the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).

Several of Constantine's arguments on appeal concern the District Court's loss and restitution calculations with respect to a three-year lease that she obtained for a Chrysler Jeep Renegade (the “Jeep”). Constantine procured the lease by fraudulent means and subsequently abandoned the Jeep after falling behind on her lease payments. At the time of the sentencing hearing, the Government had recently located the Jeep and its current value was then unknown. Over Constantine's objection, the District Court declined to subtract the vehicle's potential future value to the victim, Chrysler, for loss calculation purposes, instead calculating a loss amount of $26,242.94, which represented the total retail value of the vehicle at the time of the hearing minus the three lease payments Constantine had already made. The District Court also incorporated the Jeep loss amount into Constantine's restitution order.

After initiating this appeal, Constantine filed a motion in the district court seeking reconsideration of her sentence in light of Chrysler's repossession and subsequent sale of the Jeep for $19,000. The Government has filed papers in the District Court in which it represents that, because of the sale, it does not object to reconsideration of the sentence as it regards the amount of restitution that is owed.¹ The Government has taken the position before the District Court that Constantine's Guidelines calculation should not be reconsidered.

When Constantine moved for reconsideration of her sentence in the District Court, jurisdiction, in fact, no longer attached in that venue. See United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (“[T]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) ). The divestiture of jurisdiction rule is designed “to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.” Id. (quoting United States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989) ). These rationales are borne out by the circumstances surrounding the present appeal. The majority of the issues Constantine raises on appeal are directly implicated by the ongoing District Court proceedings.

Though both parties therefore erred in continuing to litigate in the District Court after Constantine's filing of her notice of appeal, we fail to see any efficiency in allowing the parties to assert claims simultaneously in two venues. Accordingly, we REMAND the case in accordance with the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), so that the District Court can promptly address the issues before it resulting from the sale of the Jeep Chrysler. Upon the conclusion of the proceedings before the District Court, either party may restore jurisdiction to this Court by filing with the Clerk within fourteen days of the District Court decision a letter (along with a copy of the relevant order or transcript) advising the Clerk that jurisdiction should be restored. In the interest of judicial economy, the renewed appeal will be assigned to this panel.

FOOTNOTES

1.   The Government's filing in the District Court does not object to vacatur and amendment of the judgment as to its restitution amount. The Government before this Court now asserts that Constantine may be given “credit” for the sale price of the Jeep with no need to amend the judgment. We take no position on this issue, but leave the question whether the judgment should be amended as to restitution and/or the applicable loss amount to the District Court in the first instance.