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United States v. Koczuk

ELR Citation: 31 ELR 20661
Nos. No. 00-1504(L), 252 F.3d 91/(2d Cir., 05/21/2001)

The court holds that a district court relied on several erroneous bases in reducing two individuals' sentences for smuggling sturgeon roe into the United States without a Convention on International Trade in Endangered Species of Wild Fauna and Flora permit in violation of the Lacey Act. The district court granted a downward departure in the sentencing in large part because it found the market value of the smuggled roe overstated the seriousness of the offense. The court first holds that the district court arrived at this conclusion by erroneously assuming that the seriousness of the offense should be measured by the economic loss caused by those offenses. The court then holds that the reference in the U.S. Sentencing Guidelines §2Q2.1 instructing the court to use a table found in §2F1.1 does not incorporate that section's concept of loss. Rather, the table in §2F1.1 should be used to enhance the offense level, but the enhancement level must be based on the market value or fair market retail price of the endangered species involved. The court next holds that the district court incorrectly concluded that the case fell outside the heartland of cases concerning offenses involving fish and wildlife. Instead of analyzing the facts of the case and comparing them with those of other cases that typically fall within §2Q2.1, the district court carved out a general exception to §2Q2.1 for all cases involving the illegal importation of sturgeon roe.

Counsel for Appellee
Cynthia Monaco, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse.
225 Cadman Plaza E., Brooklyn NY 11201
(718) 254-7000

Counsel for Appellants
Andrew B. Bowman
Law Offices of Andrew B. Bowman
1804 Post Rd. E., Westport CT 06880
(203) 259-0599

Cabranes, J. Before Kearse and Katzmann, JJ.