United States v. Mangone

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1116 UNITED STATES, Appellee, v. RICHARD D. MANGONE, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] Before Selya, Stahl and Lynch, Circuit Judges. Bruce Green on brief for appellant. Donald K. Stern, United States Attorney, Paul G. Levenson and Victor A. Wild, Assistant United States Attorneys, on brief for appellee. September 28, 1998 Per Curiam. Richard D. Mangone appeals from a ruling made during his resentencing, following a remand ordered by this court. See United States v. Mangone, 105 F.3d 29 (1st Cir. 1997). He does not appeal from the sentence itself, which was within the applicable guideline sentencing range. The specific issue is whether the district court erred in refusing Mangone's request at his resentencing hearing that the proceedings be conducted before a different judge. The request stemmed from defense counsel's contention that arguments that the government made in its sentencing memorandum violated a stipulation entered by the parties regarding the amount of the loss attributable to Mangone for purposes of calculating an offense level under the fraud guideline. See U.S.S.G. 2F1.1. At Mangone's initial sentencing, the parties informed the court that they had agreed upon the following stipulation: The parties stipulate . . . that for the purposes of calculating loss under the Section 2F1.1, that the loss attributable to Mr. Mangone's offense is in the range of ten to $20 million. The stipulation reserves for the defendant the right to argue that even those numbers overstate the seriousness of the offense, and the stipulation reserves for the government the right to seek restitution in an amount above $20 million, on the grounds that the actual losses attributable to a variety of causes, but related to loan, fraudulent loans, were above the $20 million figure. Addendum to Appellant's Brief, pp. 14-15. The stipulation was entered after Mangone was tried and convicted. It was not made as part of a guilty plea. Mangone argues on appeal, as he did below at his resentencing hearing, that the government violated the terms of the stipulation by arguing in its sentencing memorandum that 1) the actual loss exceeded the amount stipulated to, and 2) the dollar amount of the loss understated the harmfulness and seriousness of Mangone's conduct. See U.S.S.G. 2F1.1, comment. (n.9) (1990). I. Actual Loss Exceeded Stipulated Loss Amount On appeal, Mangone argues that the government "challenge[d] the existence of a fact to which they stipulated to." Appellant's Brief, p. 10. The "fact" that the parties stipulated to, however, was that "for the purposes of calculating loss under the Section 2F1.1, . . . the loss attributable to Mr. Mangone's offense is in the range of ten to $20 million." The parties did not stipulate that the actualloss, or the loss for any other purposes, was within that range. To the contrary, the stipulation articulated the government's position that the "actual" amount of the loss, for purposes of calculating restitution, exceeded $20 million. The stipulation did not bar the government from restating that position in its sentencing memorandum, where it expressly stated that an upward departure on that basis would not be defensible. II. Dollar Loss Understates Seriousness of Offense Although there is no express promise to the effect, Mangone argues that the stipulation contained an implied promise that the government would not argue for an upward departure on the ground that the stipulated loss amount understates the seriousness of the offense. He argues that the promise should be inferred from his specific reservation of the right to make the opposite argument: that the stipulated loss amount overstates the seriousness of the offense. Neither the guidelines nor logic alone supports Mangone's argument. There is nothing necessarily contradictory about agreeing to a dollar amount of the loss but arguing, as the government did in its sentencing memorandum, that the monetary calculation understates the seriousness of the offense as measured by non-economic factors: "impact on individuals and upon the community." Appellee's Addendum, p. 7. The guidelines expressly recognize that "[d]ollar loss often does not fully capture the harmfulness and seriousness of the conduct." 2F1.1, comment. (n.9). Therefore, merely that the stipulation contained an agreement to the dollar amount of the loss for purposes of calculating the offense level under 2F1.1 is not reason to assume that the stipulation barred the parties from arguing that the dollar amount under- or overstated the seriousness of the offense. Neither does Mangone's express reservation of the right to argue that the dollar amount of the loss overstates the seriousness of the offense compel a finding that the government had no right to make the reciprocal argument that the seriousness of the offense was understated by the dollar amount of the loss. It is equally reasonable to assume that if Mangone had the right to make his overstatement argument, the government was not prohibited from making the opposite argument. Mangone has failed to adequately explain why the court should read into the stipulation a promise that is not contained therein and does not logically follow from the parties' stipulation to the dollar amount of the loss for purposes of 2F1.1. "[T]o be availing, a party's expectation must be reasonable." United States v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988). We conclude that it was unreasonable for Mangone to read into the stipulation to the dollar amount of the loss, a promise that the government would not argue that the dollar amount understates the seriousness of the offense. Therefore, Mangone's argument that the government broke that promise is without merit. See United States v. Connolly, 51 F.3d 1, 4 (1st Cir. 1995) (rejecting defendant's interpretation of plea agreement where it "would not be reasonable to read the agreement to establish . . . a promise by the government not to move for a departure"); United States v. Miller, 993 F.2d 16, 20 (2d Cir. 1993) (no breach where there was "no basis in the Guidelines or in logic for Miller's proposition that an agreement by the government not to oppose a defendant's motion for a downward departure should, in the absence of an express agreement, bar the government from seeking an upward departure on appropriate grounds"). The district court did not err in denying Mangone's request to be resentenced by a different judge. Mangone's sentence is affirmed. See Loc. R. 27.1.