10-1353-cr
United States v. Riggi
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at
2 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
3 York, on the 9th day of February, two thousand eleven.
4
5 PRESENT: GUIDO CALABRESI,
6 GERARD E. LYNCH,
7 Circuit Judges,
8 J. GARVAN MURTHA,
9 District Judge.*
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11 ------------------------------------------------------------------
12
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 v. No. 10-1353-cr
17
18 VINCENT RIGGI,
19 Defendant-Appellant.
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23 FOR APPELLANT: MARSHALL A. MINTZ, New York, New York.
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25 FOR APPELLEE: MARK LANPHER, Assistant United States Attorney (Katherine
26 Polk Failla, on the brief), for Preet Bharara, United States
27 Attorney for the Southern District of New York, New York,
28 New York.
29
*
Honorable J. Garvan Murtha of the United States District Court for the District of
Vermont, sitting by designation.
1 Appeal from the United States District Court for the Southern District of New York
2 (Harold Baer, Jr., J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the sentence is AFFIRMED.
5 Vincent Riggi appeals from his sentence of 60 months’ imprisonment imposed by the
6 Southern District of New York (Harold Baer, Jr., J.) after he pled guilty to conspiring to
7 distribute and possess with intent to distribute five grams and more of methamphetamine, in
8 violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). Riggi argues that: (1) the district
9 court erred by using his post-plea disclosures to calculate his offense level; (2) the
10 government breached its promise to make a motion pursuant to 18 U.S.C. § 3553(e); and (3)
11 the sentence was procedurally and substantively unreasonable.
12 I. District Court’s Use of Post-Plea Disclosures
13 Riggi initially entered into a plea agreement with the government that stipulated that
14 he was responsible for 50 to 200 grams of methamphetamine, which contributed to a total
15 offense level of 29. The probation office used these drug quantity and offense-level figures
16 in its presentence report (“PSR”), but it found prior convictions not previously known to the
17 government that increased Riggi’s Criminal History Category to V. The probation office
18 thus calculated Riggi’s Guidelines range to be 140 to 175 months’ imprisonment and
19 recommended a sentence of 108 months’ imprisonment.
20 Riggi subsequently entered into a cooperation agreement that stated, among other
21 things, that if Riggi provided substantial assistance in an investigation or prosecution then
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1 the government would file motions pursuant to both U.S.S.G. § 5K1.1 and 18 U.S.C.
2 § 3553(e). “A motion under § 5K1.1 authorizes the sentencing court to depart below the
3 applicable advisory guideline range in determining the advisory guideline sentence, and a §
4 3553(e) motion permits the court to sentence below a statutory minimum.” United States v.
5 Richardson, 521 F.3d 149, 158 (2d Cir. 2008) (internal quotation marks omitted). During
6 the negotiation of the cooperation agreement, Riggi disclosed more facts about his
7 involvement in the charged conspiracy, and based on these disclosures and information from
8 other sources, the agreement recites that he agreed to distribute in excess of 1.5 kilograms
9 of methamphetamine in and around the New York City area. The cooperation agreement
10 expressly states that it “supersede[s the] prior written plea agreement.”
11 In light of Riggi’s post-plea disclosures, the probation office revised the PSR to state
12 that Riggi was responsible for 1.5 kilograms of methamphetamine, instead of 50 to 200
13 grams, thus increasing his offense level to 35. The revised PSR calculated Riggi’s
14 Guidelines range as 262 to 327 months’ imprisonment. After receiving the government’s §
15 5K1.1 letter detailing Riggi’s cooperation, the probation office recommended a sentence of
16 72 months’ imprisonment.
17 At sentencing, the court asked whether defense counsel had any “unresolved problems
18 with the presentence report, the new presentence report.” Defense counsel said he did not
19 “have any factual objections to any old or new report.” Before imposing sentence, the court
20 noted Riggi’s Guidelines range of 262 to 327 months’ imprisonment, and acknowledged the
21 probation office’s recommendation of 72 months’ imprisonment. The court then commented
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1 on a number of Riggi’s mitigating factors, including his cooperation, his “100 percent
2 compliance [with the conditions of his release] during this rather lengthy pre-trial period,”
3 his successful treatment for his addiction, his support of his dependents, and “a variety of
4 other aspects . . . which are all pretty well on [Riggi’s] side of the ledger.” The court said
5 that it nevertheless could not overlook his involvement in the possession and distribution of
6 “a great deal of controlled substance” over the course of at least six or eight months, or his
7 seven prior convictions. The court then sentenced him to 60 months’ imprisonment.
8 On appeal, Riggi argues that the government was bound by the original plea
9 agreement’s stipulation that he was responsible for 50 to 200 grams of methamphetamine
10 (and resulting offense level of 29). Riggi did not raise this argument below. To the contrary,
11 defense counsel below explicitly stated that Riggi did not have “any factual objections” to
12 the revised presentence report, which recited that Riggi was responsible for 1.5 kilograms
13 of methamphetamine and had an offense level of 35. Accordingly, Riggi waived his right
14 to raise this challenge on appeal. See United States v. Rizzo, 349 F.3d 94, 99 (2d Cir. 2003)
15 (“[I]f a defendant fails to challenge factual matters contained in the presentence report at the
16 time of sentencing, the defendant waives the right to contest them on appeal.”).
17 In any event, Riggi’s argument that the government was bound by the initial plea
18 agreement fails. Plea agreements and cooperation agreements are interpreted according to
19 principles of contract law. See United States v. Woltmann, 610 F.3d 37, 39 (2d Cir. 2010)
20 (plea agreements); United States v. Gregory, 245 F.3d 160, 165 (2d Cir. 2001) (cooperation
21 agreements). We have held that “[w]hen the parties to a contract enter into a new agreement
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1 that expressly supersedes the previous agreement, the previous agreement is extinguished.”
2 Health-Chem Corp. v. Baker, 915 F.2d 805, 811 (2d Cir. 1990). That is what happened here.
3 The cooperation agreement explicitly stated that it superseded the plea agreement, so the
4 cooperation agreement extinguished the earlier plea agreement, along with its stipulated drug
5 quantity and offense level.
6 This interpretation of how the agreements interact works no injustice on Riggi, who
7 appears to have made a deliberate decision to revoke the first agreement for what he
8 perceived to be a better agreement. Under the plea agreement, his Guidelines range was 140
9 to 175 months’ imprisonment, and in no event could he receive a sentence lower than the
10 five-year mandatory minimum. Under the cooperation agreement, his Guidelines range
11 increased to 262 to 327 months’ imprisonment, but he gained a chance at receiving a
12 sentence below the five-year mandatory minimum if the government determined that he
13 rendered substantial assistance and it filed § 5K1.1 and § 3553(e) motions. Indeed, entering
14 into the cooperation agreement appears to have worked to his benefit. After the probation
15 office received the government’s § 5K1.1 motion, it reduced its sentence recommendation
16 from 108 months’ imprisonment to 72 months’ imprisonment, despite the fact that Riggi’s
17 Guidelines range had increased.
18 Riggi further argues that U.S.S.G. § 1B1.8 requires the government to disregard
19 admissions a defendant offers in the course of cooperation. But § 1B1.8 merely permits the
20 government to agree to disregard such admissions, stating:
21 Where a defendant agrees to cooperate with the government by
22 providing information concerning unlawful activities of others,
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1 and as part of that cooperation agreement the government agrees
2 that self-incriminating information provided pursuant to the
3 agreement will not be used against the defendant, then such
4 information shall not be used in determining the applicable
5 guideline range, except to the extent provided in the agreement.
6
7 U.S.S.G. § 1B1.8(a). Moreover, U.S.S.G. § 1B1.8(b)(1) excludes from the operation of any
8 such agreement information “known to the government prior to entering into the cooperation
9 agreement.” Because the information about increased drug quantity was included in the text
10 of the very agreement on which Riggi relies, that information was necessarily “known to the
11 government prior to entering into” that agreement. Therefore, Riggi cannot benefit from §
12 1B1.8(a), regardless of the merit or lack of merit of his claim that language in the agreement
13 invokes that section.
14 The government could certainly have handled the case more carefully than it did.
15 When Riggi entered his plea, the district court carefully inquired of Riggi to ensure that he
16 understood the terms on which he was pleading guilty. When he entered a new agreement
17 that expressly superseded the initial plea agreement, the better practice, in order to eliminate
18 any issue about Riggi’s understanding of the new agreement and its relation to the prior
19 agreement, might well have been to ask the district court to conduct a similar inquiry.
20 Nevertheless, for the reasons stated above, the sentencing court’s use of Riggi’s post-plea
21 disclosures provides no reason to vacate or remand his sentence.
22 II. Section 3553(e) Motion
23 Riggi next argues that the government breached its promise to file a § 3553(e) motion.
24 The cooperation agreement promised that in return for substantial assistance the government
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1 would file both a § 5K1.1 motion and a § 3553(e) motion. Before sentencing, the
2 government represented that Riggi had provided substantial assistance, and it filed a § 5K1.1
3 motion, but not a § 3553(e) motion, apparently due to an oversight. The court, which in the
4 absence of a § 3553(e) motion lacked authority to sentence Riggi to less than the statutory
5 mandatory minimum sentence of five years’ imprisonment, see Melendez v. United States,
6 518 U.S. 120, 130 (1996), sentenced Riggi to five years’ imprisonment. Riggi now argues,
7 for the first time on appeal, that he is entitled to a new sentencing and that the government
8 should be directed to file a § 3553(e) motion.
9 A remand for resentencing is no longer necessary, as a more limited remand has
10 already occurred. When Riggi pointed out the government’s mistake, the government sought
11 a limited remand to clarify whether the district court had understood itself to be constrained
12 by the statutory mandatory minimum in imposing sentence. On remand, the court stated that
13 it had not felt so constrained and that at the time sentence was imposed, it had believed itself
14 authorized to impose a term of imprisonment of less than 60 months. Indeed, the parties and
15 the court appear to have operated under this (albeit incorrect) understanding at sentencing,
16 because when Riggi and his counsel requested a non-incarceratory sentence (indicating their
17 belief that the necessary motion had been made), neither the government nor the court
18 suggested that such a sentence would have been beyond the court’s power. Because the
19 district court felt it was not bound by the statutory mandatory minimum, it is apparent that
20 the court imposed the same sentence it would have imposed had the government made the
21 proper motion. Accordingly, the government’s failure to file the § 3553(e) motion did not
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1 prejudice Riggi and provides no basis to vacate and remand his sentence.
2 III. Procedural and Substantive Reasonableness
3 Riggi makes a number of unpersuasive challenges to the reasonableness of his
4 sentence. First, he argues that the district court made no findings regarding either the
5 quantity of methamphetamine for which he was responsible or the resulting offense level.
6 The record refutes that contention. When the sentencing court asked defense counsel if he
7 had “any unresolved problems with the presentence report,” which included the drug quantity
8 calculation, defense counsel said he had none. Accordingly, the district court’s written
9 statement of reasons explicitly adopted the PSR which recited the drug quantity and offense
10 level. Cf. United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (court may satisfy
11 obligation to make specific factual findings to support a sentence enhancement under
12 U.S.S.G. § 3B1.1 “by adopting the factual findings in the PSR, either at the sentencing
13 hearing or in the written judgment,” including in the statement of reasons).
14 Second, Riggi argues that it was unreasonable for the district court to decline to
15 consider each and every mitigating factor he raised. But the district court explicitly
16 considered a number of mitigating factors it regarded as most important, including Riggi’s
17 employment record, his recovery from addiction, and his support of his family. It was not
18 required to address each and every one of Riggi’s proposed mitigating factors. See Rita v.
19 United States, 551 U.S. 338, 356 (2007); see also United States v. Cavera, 550 F.3d 180, 193
20 (2d Cir. 2008) (en banc); United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006).
21 Third, Riggi argues that his 60-month sentence created unwarranted disparity with his
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1 three co-defendants, each of whom was sentenced to time served. See 18 U.S.C.
2 § 3553(a)(6). But the disparity was not unwarranted, because the co-defendants were not
3 similarly situated to Riggi. See Fernandez, 443 F.3d at 32. One co-defendant was
4 characterized in a separate sentencing proceeding as merely a “customer,” and the other two
5 each had an offense level of 33, a Criminal History Category of I, and a Guidelines range of
6 135 to 168 months’ imprisonment, as compared to Riggi’s offense level of 35, Criminal
7 History Category of V, and Guidelines range of 262 to 327 months’ imprisonment. Riggi’s
8 claim that he presented more mitigating factors than they did is speculative.
9 Fourth, Riggi argues that the court failed to satisfy its § 3553(c) responsibility to
10 “state in open court the reasons for its imposition of the particular sentence.” But, as
11 discussed above, the court stated its reasons for imposing the 60-month sentence: after
12 commenting on a number of mitigating factors, it noted Riggi’s involvement in the
13 possession and distribution of “a great deal of controlled substance” over the course of at
14 least six or eight months and his seven prior convictions. The court did not need to say more
15 to satisfy its § 3553(c) responsibilities.
16 To the extent that Riggi claims his sentence is substantively unreasonable, we are
17 unpersuaded. Given the seriousness of Riggi’s crime, which lasted for six to eight months
18 and involved a substantial quantity of drugs, as well as Riggi’s long criminal record, this is
19 not one of those “exceptional cases” where we must set aside the 60-month sentence – which
20 was more than 200 months below the bottom of the applicable Guidelines range, and 80
21 months below the bottom of the range calculated before he disclosed his additional criminal
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1 conduct – because it “cannot be located within the range of permissible decisions.” Cavera,
2 550 F.3d at 189 (internal quotation marks omitted).
3 We have considered Riggi’s remaining arguments and find them to be without merit.
4 For the foregoing reasons, the sentence is AFFIRMED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk of Court
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