A District Court can find that the U.S. Sentencing Guidelines are insufficient, because a defendant's allegedly 'conscience shocking' conduct harmed numerous victims, who suffered an extraordinary degree of harm. The government charged the defendant, Robin Brass, with allegedly claiming she was a legitimate investment professional, stealing from more than 10 victims and continuing to steal, even after she knew law enforcement was investigating. In July 2012, Brass was sentenced to a non-Guidelines sentence of 96 months in prison. Brass appealed and argued that she did not receive notice of an upward departure in sentencing. The 2nd Circuit reviewed for procedural and substantive reasonableness. A sentencing decision is procedurally unreasonable when the District Court 'makes a mistake in its Guidelines calculation, does not consider the §3553(a) factors, or rests its sentence on a clearly erroneous finding of fact,' pursuant to U.S. v. Hsu, a 2012 decision of the 2nd Circuit. The District Court carefully considered §3553(a) factors when it imposed a non-Guidelines sentence. Federal Rule of Criminal Procedure 32(h), which requires that the District Court provide notice of intent to order an upward departure, applies only to departures and does not apply to variances. The record clearly established that the prison sentence qualified as a variance, as opposed to a departure, from the U.S. Sentencing Guidelines. The District Court was not required to provide advance notice of its intent to order an upward variance. The upward variance was based on the amount of harm to the victims. The District Court found that the U.S. Sentencing Guidelines were insufficient, because the defendant's 'conscience shocking' conduct harmed numerous victims, who suffered an extraordinary degree of harm. Allegedly, the defendant continued her illegal activity even after she knew about the severity of consequences and that law enforcement was investigating. The 2nd Circuit was not persuaded that the non-Guidelines sentence was unreasonable, and it affirmed the judgment of the District Court, Chatigny, J. Jonathan Einhorn and Alexander Eisemann represented the defendant. David Fein, Susan Wines and Sandra Glover represented the government.

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