IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20673
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee
V.
LEONARD LOUIS CAPALDI,
Defendant-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-93-181)
_________________________________________________________________
August 29, 1996
Before KING, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Leonard Louis Capaldi pleaded guilty to bank fraud and
commercial bribery. Capaldi appeals his conviction pursuant to
the plea agreement and his sentence. Finding error only as to
the sentence, we affirm the conviction, vacate the sentence and
remand for resentencing.
A. Rule ll Claims
Capaldi argues that the district court violated Federal Rule
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
of Criminal Procedure 11(c)(1) by failing to admonish him at the
plea colloquy that his sentence could include restitution or that
the court could depart from the sentencing guidelines in certain
circumstances. Capaldi characterizes this as reversible error.
We disagree. Capaldi’s plea agreement referred to any fine or
restitution as being due and payable immediately. The plea
agreement also provided that Capaldi would not attempt to avoid
paying a fine or restitution by filing a bankruptcy case.
Capaldi declared in open court that he had read the agreement and
discussed it with his attorney, and he acknowledged that he
understood his rights and the terms of the plea agreement.
Capaldi raised no questions at the plea colloquy regarding the
inclusion of provisions concerning restitution in the plea
agreement. The plea agreement, which was accepted during the
plea colloquy, is temporally relevant information in the record
that counteracts any deficiency caused by the district court's
failure to address the guidelines. See United States v. Johnson,
1 F.3d 296, 302 (5th Cir. 1993) (en banc). Under these
circumstances, the district court's omission of the possibility
of restitution in the plea colloquy is harmless error. See Fed.
R. Crim. P. 11(h).
Capaldi also argues that the district court committed
reversible error by failing to inform him that the court could
depart from the sentencing guidelines. Again, in the plea
agreement, Capaldi acknowledged that the sentence was in the
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discretion of the sentencing judge and that Capaldi could not
withdraw his plea simply because the court imposed a sentence up
to the statutory maximum. Capaldi also reserved his right to
appeal any upward departure from the guidelines. Capaldi thus
was apprised of the possibility of departure. See Rule 11(c)(1).
Because Capaldi specifically reserved his right to appeal an
upward departure and because he objected at sentencing to the
upward departure, any error is harmless.
B. Increase in Offense Level
Capaldi argues that the district court erred by increasing
his offense level under U.S.S.G. § 3B1.1(a) for his role as an
organizer or leader. Capaldi's plea agreement contained a
waiver-of-appeal provision, which provided:
The defendant is aware that Title 18, United
States Code, Section 3742 affords a defendant
the right to appeal the sentence imposed.
Knowing that, the defendant waives the right
to appeal the sentence (or the manner in
which it was determined) on the grounds set
forth in Title 18, United States Code,
Section 3742, except that the defendant may
appeal a sentence imposed above the statutory
maximum or an upward departure from the
Sentencing Guidelines, which upward departure
had not been requested by the United States.
This agreement does not affect the rights or
obligations of the United States as set forth
in Title 18, United States Code, Section
3742(b).
Our decision in United States v. Portillo, 18 F.3d 290, 292-93
(5th Cir.), cert. denied, 115 S. Ct. 244 (1994), dictates that
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the waiver-of-appeal provision be upheld. Capaldi has no
standing to appeal adjustments made (or not made) by the district
court pertaining to his role in the offense and acceptance of
responsibility.
C. Notice of Upward Departure
Capaldi argues that the district court committed reversible
error by failing to provide adequate notice of its intention to
depart upwardly from the guidelines.
Before the district court can depart upward on a ground not
identified either in the PSR or in a prehearing submission by the
Government, it must give the parties reasonable notice that it is
contemplating such departure. Fed. R. Crim. P. 32; Burns v.
United States, 501 U.S. 129, 138 (1991). This notice must
identify the ground on which the district court is contemplating
an upward departure. Burns, 501 U.S. at 138-39. The sentencing
court must provide defense counsel and the Government an
opportunity to comment upon matters relating to the appropriate
sentence. Fed. R. Crim. P. 32(a)(1). "Rule 32 contemplates that
the court may base its sentencing decisions on matters not
included in the [PSR], as long as [the defendant’s] right to
notice and opportunity to be heard are not violated." United
States v. Allison, 986 F.2d 896, 897 (5th Cir. 1993).
In its written reasons for departure, the district court
stated that it "departed upward two levels [from the guideline
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range] based upon the amount of loss, which the Court identified
as relevant conduct in a civil lawsuit claiming the defendant, in
a similar scheme to defraud, defrauded victims out of
[$]1,499,000. The two level decrease [sic] was based from the
fraud table."
No documents appear in the record in which the district
judge informed Capaldi before sentencing that he might consider
an upward departure based on the Canadian suit or the letters
filed by the Canadian victims. Accordingly, the record does not
indicate that the district judge complied with the requirements
of Burns. The court's comments at the beginning of the
sentencing hearing concerning its intended use of the Canadian
conduct were ambiguous at best. The judge mentioned that he
could see no reason why he could not consider the Canadian
conduct relevant, but never clearly stated that he intended to
consider it for the purpose of an upward departure. The district
court's comments are more easily interpreted as reasons why it
would not accept the amount of loss stipulated in the plea
agreement and would instead adopt the amount of loss recommended
in the PSR. We therefore vacate Capaldi’s sentence on this
ground, and we remand to the district court for resentencing in
compliance with the notice requirements of Burns.
D. Failure to Provide Reasons for Departure
Capaldi also argues that the district court committed
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reversible error by failing to provide specific reasons for its
departure. If the district court departs upward, it must state in
open court the specific reason for doing so. 18 U.S.C.
§ 3553(c)(2). "By requiring a `specific reason,' section
3553(c)(2) requires the sentencing court to identify the exact
circumstance or circumstances that warrant departure which are
not adequately considered by the Sentencing Commission." United
States v. Mourning, 914 F.2d 699, 708 (5th Cir. 1990). The
district court will have the opportunity to state specifically
on remand the reasons on which it bases any upward departure.
E. Consideration of the Canadian Lawsuit
Capaldi also argues that any consideration given by the
district court to an unadjudicated civil lawsuit filed in Canada,
whether for the purpose of denying a three-point reduction for
acceptance of responsibility or for any other purpose, was error.
It is not clear whether or to what extent the Canadian suit
factored into Capaldi’s sentencing. On remand, the district
court should clearly set forth the role the Canadian suit plays,
if any, in the sentencing determination.
For the foregoing reasons, we AFFIRM Capaldi’s conviction,
but we VACATE his sentence and REMAND for resentencing.
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