Fox Rothschild Wins Sentencing Appeal for Co-Owner of Cheesesteak Landmark Tony Luke’s
A team of Fox Rothschild White-Collar Criminal Defense lawyers has won a significant appeal for client Nicholas Lucidonio, co-owner of South Philadelphia’s iconic cheesesteak shop Tony Luke’s (now known as Tony and Nick’s Steaks), that paves the way for a new sentencing hearing in a federal tax case that drew national attention.
In the appeal, Fox attorneys Ian M. Comisky, Matthew D. Lee, and Saverio S. Romeo (with assistance from Matthew Nis Leerberg and Morgan McCall Reece) argued that Lucidonio’s sentence was improperly enhanced under a historically seldom used provision of the U.S. Sentencing Guidelines, § 2T1.9(b)(2).
In a precedential decision, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit agreed and vacated Lucidonio’s 20-month prison sentence, ordering a new sentencing without the enhancement.
Lucidonio had pleaded guilty to a single count of conspiracy to defraud the IRS. He acknowledged that he and his father had paid some employees off the books to avoid payroll taxes. At sentencing, prosecutors pushed for a two-level enhancement under § 2T1.9(b)(2), arguing that Lucidonio’s conduct had been “intended to encourage” his employees to independently violate the tax laws.
On appeal, the Fox team challenged that interpretation, arguing that the employees weren’t passive bystanders but rather were knowing participants in the cash payroll arrangement. As a result, they argued, the employees should be treated as co-conspirators.
The two-level enhancement should not have applied, the Fox team argued, because it is triggered only when a defendant encourages individuals other than co-conspirators to violate tax laws.
The appellate panel agreed. Writing for the court, U.S. Circuit Judge Tamika R. Montgomery-Reeves emphasized that “more is required” to justify the enhancement and that the government had not met its burden of proof.
Read the full opinion here.
As this article contains statements regarding past performance, please note that results may vary depending on your particular facts and legal circumstances.
