Вступление в силу, изменение и расторжение

8.1.Настоящий Договор вступает в силу немедленно по его подписании Клиентом и Консультантом и действует до:

8.1.1.направления одной стороной другой уведомления о расторжении Договора; или

8.1.2.начала процедуры ликвидации или объявления несостоятельной какой-либо стороны Договора.

8.2.Все изменения, дополнения и расторжение настоящего Договора имеют силу только в том случае, если они явным образом согласованы в письменной форме и подписаны уполномоченными
представителями обеих сторон.

8.3.Настоящий Договор обязателен для правопреемников сторон.

Экземпляры

Настоящий Договор составлен на русском и английском языках в четырех экземплярах, по одному экземпляру на русском и английском языке для каждой из сторон. В случае любого противоречия или несоответствия между текстами текст на русском языке является превалирующим.

От имени и по поручению ___________________

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United States Court of Appeals

For the First Circuit

No. 99-2302

UNITED STATES OF AMERICA,

Appellee,

CHAD AUSTIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Chief Judge,

Wallace,* Senior Circuit Judge,

and Lipez, Circuit Judge.

David H. Bownes for appellant.

Donald Feith, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.

* of the Ninth Circuit, sitting by designation.

WALLACE, Circuit Judge.Austin appeals from his sentence, imposed following his conviction for bank robbery in violation of 18 U.S.C. § 2113(a) and (d), use of a firearm in a crime of violence in violation of 18 U.S.C. § 924(c), possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(l), interstate transportation of stolen property in violation of 18 U.S.C. § 2314, and interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. He raises two issues. First, he contends that the district court erred at sentencing by enhancing his base offense level by three levels pursuant to U.S.S.G. § 3A1.2(b) (official victims) and by two levels pursuant to U.S.S.G. § 3C1.2 (reckless endangerment). Austin argues that the conduct underlying the enhancements formed the basis of a term of imprisonment imposed by a Massachusetts state court for offenses related to the federal violations. Second, Austin contends that the district court erred at sentencing by aggregating Counts One, Four, and Five, and by aggregating the value of the money taken in the bank robbery and the value of the stolen vehicle transported interstate, which resulted in a one level enhancement to his base offense level pursuant to U.S.S.G. § 2B3.1(b)(7). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a)(2). We affirm in part, vacate in part, and remand for resentencing.

Austin’s presentence report (Report) recommended an adjusted offense level of 32 for Count One and an adjusted offense level of 26 for Count Three. The Report grouped together Counts Four and Five pursuant to U.S.S.G. § 3D1.2(d) and recommended a combined adjusted offense level of 11. The Report then grouped this subgroup with Count One pursuant to U.S.S.G. § 3D1.2(c), and grouped Count Three with Count One pursuant to U.S.S.G. § 3D1.2(c). Pursuant to U.S.S.G. § 3D1.3(a), the Report recommended a combined offense level of 32, determined by the highest offense level of the counts in the group, which was Count One. Austin's criminal history category was VI. His total offense level and criminal history category together resulted in a sentencing range of 210 to 262 months. U.S.S.G. § 5A. In addition, pursuant to U.S.S.G. § 72K2.4, Count Two called for a mandatory 60-month consecutive prison term.

At the time of Austin's federal sentencing, he was serving a term of imprisonment imposed by the Commonwealth of Massachusetts for the related state convictions. The Report stated that, because of this, U.S.S.G. § 5G1.3 was implicated and concluded that, pursuant to provisions (b) or (c) of section 5G1.3, Austin's sentence could be imposed to run concurrently with, partially concurrently with, or consecutively to the prior undischarged term of state imprisonment, depending on the circumstances.

Austin argued for a fully concurrent sentence pursuant to U.S.S.G. § 5G1.3(b), with the exception of the 60-month mandatory consecutive sentence (Count Two). He contended that because the recommended federal sentence fully took into account conduct that formed the basis of his Massachusetts sentence, section 5G1.3(b) required that his federal sentence run concurrently with his undischarged state term. In addition, Austin argued that the Report's grouping of Counts Four and Five with Count One was improper under section 3D1.2 and resulted in an improper one-level enhancement under Count One.

The government argued for a wholly consecutive sentence pursuant to U.S.S.G. § 5G1.3(c). The prosecution acknowledged that two two-level enhancements included in the Report's total offense level of 32 fully took into account conduct for which Austin was sentenced in Massachusetts. Thus, if those two enhancements were eliminated, the government contended, Austin's sentence could be wholly consecutive.

The district court then applied a total offense level of 28, rather than the Report's recommended 32, with a criminal history category of VI, which resulted in a sentencing range of 140 to 175 months. Applying U.S.S.G. § 5G1.3(c), the district court sentenced Austin to 175 months on Count One, 115 of which were to run concurrently to the Massachusetts sentence and 60 of which were to run consecutively to that sentence. In addition, the court sentenced him to a 60 month term for Count Two, which was consecutive to all other sentences.

Appellate review of a district court's interpretation and application of the Sentencing Guidelines (Guidelines) is de novo. United States v. Collazo-Aponte, 216 F.3d 163, 200 (1st. Cir. 2000). We review the district court's factual determinations for clear error, giving "due deference to the district court's application of the guidelines to the facts." Id, quoting United States v. Cali, 87 F.3d 571, 575 (1st Cir. 1996).

Section 2B3.1 determines a sentence partly on the basis of a monetary loss table, which instructs the court to increase the offense level by "one level" if the "loss" was more than $10,000 but not more than $50,000. U.S.S.G. § 2B3.1(b)(7). The robbery guideline Commentary informs the court that "[v]aluation of loss is discussed in the Commentary to § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft)." U.S.S.G. § 2B3.1 application note 3. The latter guideline defines "loss" as including the "value of the property taken." U.S.S.G. § 2B1.1 application note 2. The district court proceeded to add that one level after aggregating the Jetta's $2,000 value and the $9,028 taken in the robbery, yielding a total "loss" of over $10,000.

In support of its contention that the district court was correct to count the value of the Jetta as a robbery-related loss pursuant to U.S.S.G. § 2B3.1(b)(7), the government exclusively relies on our decision in United States v. Cruz-Santiago, 12 F.3d 1 (1st Cir. 1993). In Cruz-Santiago, we held that the district court correctly "counted, as a robbery-related 'loss' for sentencing purposes, the value of a car . . ." pursuant to U.S.S.G. 2B3.1(b)(6)(B), the then existing robbery provision. 12 F.3d at 1. Cruz-Santiago, however, is distinguishable. The defendants in Cruz-Santiago "entered a bank, took $6,160, shot the assistant manager, ran outside the bank, saw a [vehicle] . . . passing by, forced its innocent driver out of the car, and drove off to a rendezvous point." Id. They were charged with and convicted of bank robbery in the District of Puerto Rico. Id.

The case before us differs in important respects. First, Austin stole the vehicle at some time earlier than when he committed the bank robbery; thus, the two offenses are not a continuous event and are somewhat attenuated. More significantly, the robbery in Cruz-Santiago "involved carjacking," which is an aggravating factor under the robbery guideline. U.S.S.G. § 2B3.1(b)(5). In contrast, Austin's theft of the Jetta was not a "carjacking," nor did his bank robbery involve the car theft in the same contemporaneous manner. We conclude that Cruz-Santiago is distinguishable and does not control the case before us.

We need not address this issue because any error the district may have committed in grouping Counts One, Four, and Five pursuant to U.S.S.G. § 3D1.2 for the purpose of applying U.S.S.G. § 3D 1.3 would necessarily be harmless. Austin's sentence was not altered by applying section 3D1.3 rather than section 3D1.4 to determine the combined offense level. Pursuant to section 3D1.3, the district court imposed a combined offense level of 28, the offense level pertaining to the robbery count, the highest offense level in the Group. Pursuant to section 3D 1.4, the combined offense level imposed would still have been 28. This identical outcome persists even once the improper one-level enhancement pursuant to section 2B3.1(b)(7) is subtracted. Under either provision, Austin's combined offense level will be 27.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.

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The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment in the case of Ilascu and Others v. Moldova and Russia. The Court held

- by sixteen votes to one, that the applicants came within the jurisdiction of Russia within the meaning of Article 1 of the European Convention on Human Rights…

The Court further held, unanimously, that Moldova and Russia were to take all the necessary steps to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release.

Decision of the Court

Article 1

As regards Moldova

On the basis of all the material in its possession, the Court considered that the Moldovan Government, the only legitimate government of the Republic of Moldova under international law, did not exercise authority over part of its territory, namely that part which was under the effective control of the “Moldovian Republic of Transdniestria” (“MRT”). However, even in the absence of effective control over the Transdniestrian region, Moldova still had a positive obligation under Article 1 of the Convention to take the measures that it was in its power to take and were in accordance with international law to secure to the applicants the rights guaranteed by the Convention.

As regards Russia

During the Moldovan conflict in 1991-92 forces of the former Fourteenth Army (which had owed allegiance to the USSR, the CIS and the Russian Federation in turn) stationed in Transdniestria, had fought with and on behalf of the Transdniestrian separatist forces. Large quantities of weapons from the stores of the Fourteenth Army had been voluntarily transferred to the separatists, who had also been able to seize possession of other weapons unopposed by Russian soldiers. In addition, throughout the clashes between the Moldovan authorities and the Transdniestrian separatists the Russian leaders had supported the separatist authorities by their political declarations.

The Russian authorities had therefore contributed both military and politically to the creation of a separatist regime in the region of Transdniestria, part of the territory of the Republic of Moldova. Even after the ceasefire agreement of 21 July 1992 Russia had continued to provide military, political and economic support to the separatist regime, thus enabling it to survive by strengthening itself and by acquiring a certain amount of autonomy vis-à-vis Moldova. In the Court’s opinion, all of the acts committed by Russian soldiers with regard to the applicants, including their transfer into the charge of the separatist regime, in the context of the Russian authorities’ collaboration with that illegal regime, were capable of engaging responsibility for the consequences of the acts of that regime…

That being so, the Court considered that there was a continuous and uninterrupted link of responsibility on the part of Russia for the applicants’ fate, as its policy of support for the regime and collaboration with it had continued beyond 5 May 1998, and after that date Russia had made no attempt to put an end to the applicants’ situation brought about by its agents and had not acted to prevent the violations allegedly committed. The applicants therefore came within the jurisdiction of Russia and its responsibility was engaged with regard of the acts complained of.

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